Abdallahi v. Holder

• Decision Date: 31 July 2012
• Docket Number: No. 11–3920.,11–3920.
• Citation: 690 F.3d 467
• Parties: Mohamed Salem Ould ABDALLAHI, Petitioner, v. Eric H. HOLDER, Jr., Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

690 F.3d 467

Mohamed Salem Ould ABDALLAHI, Petitioner,

v.Eric H. HOLDER, Jr., Respondent.

No. 11–3920.

United States Court of Appeals,Sixth Circuit.

July 31, 2012.

ON BRIEF:Dennis M. Clare, Law Office of Dennis M. Clare, PSC, Louisville, Kentucky, for Petitioner. Claire L. Workman, United States Department of Justice, Washington, D.C., for Respondent.

Before: SILER and MOORE, Circuit Judges; VAN TATENHOVE, District Judge.^*

OPINION

SILER, Circuit Judge.

Mohamed Salem Ould Abdallahi (“Abdallahi”), a native and citizen of Mauritania, petitions for review of the order of the Board of Immigration Appeals (“BIA”) upholding an Immigration Judge's (“IJ”) denial of his application to adjust his status under section 245 of the Immigration and Nationality Act, 8 U.S.C. § 1255. For the following reasons, we DENY THE PETITION FOR REVIEW.

I.

Abdallahi entered the United States lawfully in 2000 as a non-immigrant visitor. He remained longer than permitted and applied for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”), but those claims were later withdrawn in favor of his request for adjustment of status.

In 2005, Abdallahi received a Notice to Appear (“NTA”) stating he was subject to removal under INA § 237(a)(1)(B). Two weeks later, he married a United States citizen who subsequently filed a visa petition for an alien relative (“Form I–130”) on Abdallahi's behalf. After the Form I–130 was approved, Abdallahi filed an application for adjustment of status.

In 2007, Abdallahi testified in support of his application at an immigration hearing. At this hearing, IJ Grant questioned Abdallahi about his experience as a gendarme in the Mauritanian military, in which Abdallahi served between 1989 and 1998. He served as a sergeant who oversaw four ranks below him, and his duties included acting as a guard when the military “arrest[ed] the black people.” (R. 268, 306). While he stood guard at doors outside interrogations, Abdallahi heard screaming, and he acknowledged that prisoners were tortured during these interrogations. Abdallahi stated that his duties required that he pour cold water on black prisoners, kick them, and ensure that they had no food or toilet access.

Abdallahi witnessed other military members, including those beneath him in command, mistreat prisoners. Specifically, in 1991 or 1992, Abdallahi witnessed two officers place a substance in a prisoner's eyes so that he could not see. (R. 272). One officer told Abdallahi that he had “burned that guy” and that “they [were] going to make him talk.” (R. 273–74). This officer was “a member of the gendarmerie fourth grade,” a grade directly below Abdallahi. (R. 274).

In 1996, Abdallahi stood guard over black prisoners while other soldiers kicked and beat the prisoners until they bled. Abdallahi left his post for a break and returned to find some prisoners missing “because [the military] [couldn't] let them go into the street with that mark, torture mark on.” (R. 280). Also in 1996, he apprehended black student demonstrators and brought the students to interrogations where he heard screams and “[d]efinitely” knew that “something bad” was happening to the students. (R. 311–12).

Abdallahi stated that he could not stop the acts of the officers, even though he thought the acts were “against [ ] humanity,” because he feared they would “put [him] in the same position with the guy who g[o]t tortured.” (R. 275–76). Because Abdallahi was regarded as a black African by his colleagues, he believed that the gendarmes would view him as supporting the transfer of the military's power “to the black people” if he were to protest. (R. 277). Abdallahi testified that he did not report the mistreatment of prisoners to higher military authorities because he believed that those authorities supported the treatment.

Abdallahi decided to leave Mauritania when his cousin disappeared. Abdallahi believed that the Mauritanian government assumed that he supported an opposition candidate, because Abdallahi and the candidate were of the same tribe, and he believed that the government would “eliminate” him. (R. 317).

At the conclusion of the hearing, Abdallahi withdrew his asylum, withholding of removal, and CAT application. Accordingly, IJ Grant dismissed the application with prejudice. IJ Grant then requested additional documents and summation statements from both parties as to Abdallahi's statutory eligibility for adjustment of status.

Before issuing a decision in Abdallahi's case, IJ Grant left the Immigration Court, and the case was transferred to IJ O'Leary. Abdallahi objected to the transfer and requested a new hearing before IJ O'Leary. Abdallahi argued that because IJ O'Leary had not personally heard his testimony, his due process rights would be violated if IJ O'Leary were to render a decision. IJ O'Leary overruled the objection, stating he sufficiently familiarized himself with the record.

In 2007, IJ O'Leary issued a written decision finding Abdallahi inadmissible to the United States, pursuant to Section 212(a)(3)(E)(iii) of the INA, for having “committed, ordered, incited, assisted, or otherwise participated in the commission of ... any act of torture,” as found in 8 U.S.C. § 1182(a)(3)(E)(iii), and therefore ineligible to adjust his status.

The BIA affirmed the IJ's findings, reasoning that IJ O'Leary (1) reviewed the hearing record in accordance with 8 C.F.R. § 1240.1(b), and his decision reflected his complete review of the record; (2) there were no erroneous findings of fact relating to the central holding of the IJ, that Abdallahi participated in acts of torture while a sergeant in the Mauritanian army in 1996; (3) Abdallahi failed to demonstrate that he suffered prejudice and to provide sufficient reason to hold an additional hearing; (4) the evidence admitted for impeachment purposes only “was not important to the decision” (R. 32–34); and (5) Abdallahi was provided a fair hearing. Further, the BIA found that Abdallahi acted voluntarily and that clear evidence indicated a direct connection between Abdallahi and the torture committed.

II.

We review only the decision of the BIA. See Anssari–Gharachedaghy v. INS, 246 F.3d 512, 513 (6th Cir.2000). But where the BIA summarily adopts the IJ's decision and also provides commentary of its own, we review both the BIA's decision and the IJ's decision. Gilaj v. Gonzales, 408 F.3d 275, 282–83 (6th Cir.2005) (per curiam). We review the BIA's legal conclusionsde novo, including whether or not petitioner has proven a due process claim, Hassan v. Holder, 604 F.3d 915, 923 (6th Cir.2010) (citation omitted), and we defer to the BIA's “reasonable interpretations of the INA.” Patel v. Gonzales, 432 F.3d 685, 692 (6th Cir.2005).

For final orders of removal, this court reviews factual findings, including credibility determinations, under a substantial evidence standard “in which [this court] uphold[s] a BIA determination as long as it is supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Parlak v. Holder, 578 F.3d 457, 462 (6th Cir.2009) (citation and internal quotation marks omitted). “[U]nless any reasonable adjudicator would be compelled to conclude the contrary,” the BIA's findings of fact are conclusive under this standard. Koulibaly v. Mukasey, 541 F.3d 613, 619 (6th Cir.2008) (quoting 8 U.S.C. § 1252(b)(4)(B)).

III.

The BIA found that Abdallahi demonstrated no prejudice and provided insufficient reasons to hold an additional hearing before IJ O'Leary. The Fifth Amendment's protections extend to Abdallahi, who is entitled to a full and fair hearing at his immigration proceeding. Vasha v. Gonzales, 410 F.3d 863, 872 (6th Cir.2005). To evaluate whether fundamental fairness was denied, we ask whether there was a defect in the removal proceeding, and if so, whether Abdallahi was prejudiced by the defect. Voyticky v. Vill. of Timberlake, 412 F.3d 669, 679 (6th Cir.2005). Thus, proof of prejudice is necessary to establish a due process violation. Id. In order to establish the requisite prejudice, Abdallahi “must show that the due process violations led to a substantially different outcome from that which would have occurred in the absence of these violations.” Garza–Moreno v. Gonzales, 489 F.3d 239, 241–42 (6th Cir.2007).

A.

Here, Abdallahi alleges this defect in his process: IJ O'Leary's denial of his request for a new hearing after IJ Grant, who presided over his removal hearing, left the court. Abdallahi argues that his right to present evidence on his own behalf, pursuant to 8 U.S.C. § 1229A; 8 C.F.R. § 1240, was violated. As a result, he alleges, the BIA did not consider whether the administrative procedures accorded to Abdallahi were constitutionally sufficient. He argues that the BIA did not properly consider factors set out in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), to test the constitutional adequacy of the procedure afforded to Abdallahi. ¹

The Attorney General (“AG”) argues that Abdallahi had no liberty interest to be protected because his due process claim arises solely from the denial of the discretionary relief of adjustment of status, suggesting that Abdallahi's due process argument is moot. However, the AG conflates “discretionary status” with “discretionary relief.” While it is true that “the failure to be granted discretionary relief ... does not amount to a deprivation of liberty interest,” Patel v. Gonzales, 470 F.3d 216, 220 (6th Cir.2006), we have also held that the Fifth Amendment's Due Process Clause mandates that removal hearings be fundamentally fair and that a petitioneris entitled to a full and fair hearing. Martini v. Mukasey, 314 Fed.Appx. 819, 823 (6th Cir.2008). The case law cited by the AG may be distinguished from Abdallahi's case, because Abdallahi alleges a due process violation with respect to his opportunity for a full and fair hearing.

Abdallahi's due process argument focuses on the...