Abdulahad v. Barr
| Decision Date | 25 November 2020 |
| Docket Number | No. 18-4191,No. 19-3496,18-4191,19-3496 |
| Parties | WALID ABDULAHAD, Petitioner, v. WILLIAM P. BARR, Attorney General, Respondent |
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
NOT RECOMMENDED FOR PUBLICATION
File Name: 20a0675n.06
JOHN K. BUSH, Circuit Judge. Walid Abdulahad, a 45-year-old native and citizen of Iraq who has lived in the United States since 1997, appeals two decisions of the U.S. Board of Immigration Appeals (BIA). First, he appeals the BIA's decision to uphold the denial by the Immigration Judge (IJ) of his application for asylum, withholding of removal, and deferral of removal under the Convention Against Torture (CAT). That decision likewise denied Abdulahad's motion to remand. He also appeals the BIA's later decision to deny his motion to reopen and reconsider his case.
For the reasons discussed below, we DENY Abdulahad's petitions for review from the BIA.
Walid Abdulahad is a native and citizen of Iraq. Abdulahad and his family fled Iraq in 1991, and he entered the United States as a refugee in December 1997. Abdulahad adjusted his status to that of a permanent resident in November 2000. Abdulahad is a Chaldean Christian, and he has no current ties with Iraq.
In September 2003, when in Aruba, Abdulahad was accused of attempting to export cocaine. In November 2003, an Aruban court issued an in absentia judgment imposing a fine against Abdulahad. The Aruban investigation revealed that Abdulahad had tried to smuggle over 500 grams of cocaine into the United States by securing packages of the drug to his feet before attempting to board an airplane in exchange for $1,000 to $1,500. On his return from Aruba in October 2003, the Department of Homeland Security (DHS) charged Abdulahad with inadmissibility under § 212(a)(2)(C) of the Immigration and Naturalization Act (INA), 8 U.S.C. § 1182(a)(2)(C), based on his conduct in Aruba. He was ordered removed from the United States in absentia after failing to appear at his removal hearing.
Years later, Abdulahad successfully moved to reopen his removal proceedings based on changed country conditions in Iraq. The IJ then held individual hearings on the merits of Abdulahad's applications for asylum and withholding of removal under the CAT. On November 14, 2017, the IJ held that Abdulahad's Aruban conviction was a particularly serious crime, rendering him ineligible for asylum or withholding of removal.1 On February 28, 2018, the IJ denied Abdulahad's application for deferral of removal under the CAT and ordered that he be removed to Iraq.
Abdulahad timely appealed to the BIA, which affirmed the IJ's decision on November 20, 2018. Specifically, the BIA held (1) that Abdulahad's in absentia judgment in Aruba constitutes a conviction under INA § 101(a)(48)(A); (2) that Abdulahad was ineligible for asylum andwithholding of removal because he had been convicted of a particularly serious crime; and (3) that Abdulahad did not demonstrate that he was eligible for deferral of removal under the CAT. Finally, the BIA denied Abdulahad's motion to remand both to consider new evidence regarding the classification of his Aruban conviction as a particularly serious crime and to apply for cancellation of removal based on Pereira v. Sessions, 138 S. Ct. 2105 (2018).
Abdulahad timely petitioned this Court for review of the BIA's November 20, 2018 decision. While his petition was pending, Abdulahad filed a timely motion to reopen and reconsider with the BIA on December 20, 2018, arguing that the BIA erred (1) in treating the Aruban judgment as a "conviction" under the INA; (2) in concluding that Abdulahad was convicted of a particularly serious crime; and (3) in denying Abdulahad's application for deferral of removal under the CAT by failing to give weight to recent State Department reports. The BIA denied the motion on May 24, 2019. The BIA reasoned that Abdulahad had largely restated his arguments from his prior appeal, in addition to noting that the BIA's unpublished decisions are not precedential and that Abdulahad's proposed new evidence was cumulative of previously submitted evidence.
Abdulahad then petitioned this Court for review of the BIA's May 24, 2019 decision. We granted his stay of removal and referred the government's motion to dismiss to the merits panel. We then consolidated the proceedings for both petitions.
We granted Abdulahad's motion to hold the case in abeyance pending a decision in Nasrallah v. Barr, 140 S. Ct. 1683 (2020). After the Supreme Court issued the Nasrallah decision, we granted Abdulahad's motion to file supplemental briefing, and the parties supplied such briefing.
Although we generally review only the decision of the BIA where it issues its own opinion, we review the IJ's decision directly when the BIA adopts the IJ's reasoning. Parlak v. Holder, 578 F.3d 457, 462 (6th Cir. 2009). We review the BIA's legal conclusions de novo but defer to its reasonable interpretations of the INA. Koulibaly v. Mukasey, 541 F.3d 613, 619 (6th Cir. 2008). We review factual challenges to CAT orders under the highly deferential substantial-evidence standard, as the agency's "findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary." Nasrallah, 140 S. Ct. at 1692 (quoting 8 U.S.C. § 1252(b)(4)(B)). Under the substantial-evidence standard, we will defer to the BIA's factual findings if they are "supported by reasonable, substantial, and probative evidence on the record considered as a whole." Koulibaly, 541 F.3d at 619 (quoting Marku v. Ashcroft, 380 F.3d 982, 986 (6th Cir. 2004)). Our review of a petition for relief may be conducted "only on the administrative record on which the order of removal is based." 8 U.S.C. § 1252(b)(4)(A).
The criminal alien jurisdictional bar of 8 U.S.C. § 1252(a)(2)(C) eliminates judicial review of "any final order of removal against an alien who is removable" because he or she committed a specified crime. § 1252(a)(2)(C). A court of appeals may, however, review constitutional claims or questions of law arising from a final order of removal, regardless of the removal's basis in the commission of a crime. § 1252(a)(2)(D). In Nasrallah, the Supreme Court clarified that § 1252(a)(2)(C) does not preclude judicial review of factual challenges to CAT orders because a CAT order is not a final order of removal. 140 S. Ct. at 1690-91. Abdulahad argues that in lightof Nasrallah, we have jurisdiction to review his factual challenges to the denial of his application for statutory withholding, in addition to his application for deferral of removal under the CAT.
However, we have previously held that we lack jurisdiction over factual challenges to the denial of a statutory withholding of removal. See, e.g., Sanchez-Robles v. Lynch, 808 F.3d 688, 692-93 (6th Cir. 2015) (). We must follow Sanchez-Robles unless "an inconsistent decision of the United States Supreme Court requires modification of the decision or this Court sitting en banc overrules the prior decision." Guzman-Vazquez v. Barr, 959 F.3d 253, 260 (6th Cir. 2020) (quoting Salmi v. Sec'y of Health & Human Servs., 774 F.2d 685, 689 (6th Cir. 1985)). Sanchez-Robles and Nasrallah are not inconsistent because Nasrallah explicitly left open the question whether courts of appeals can review factual findings in statutory withholding of removal orders. Nasrallah, 140 S. Ct. at 1694 (). Thus, we remain bound by our precedent holding that this Court does not have jurisdiction to review factual findings underlying an order denying statutory withholding of removal. We therefore accept the BIA's factual findings on withholding of removal and review only its legal conclusions.
A removable alien is ineligible for asylum and withholding of removal if the Attorney General decides that "the alien, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the United States." 8 U.S.C. § 1158(b)(2)(A)(ii); see also 8 U.S.C. § 1231(b)(3)(B)(ii). Abdulahad challenges the BIA's holding that the Aruban in absentia judgment constitutes a "conviction" under the INA on two grounds. First, he contendsthat the BIA improperly placed the burden of proof on him. Second, he argues that the lack of procedural and substantive safeguards underlying the foreign in absentia judgment should preclude the BIA from holding that the judgment is a "conviction" under the INA. As noted above, we defer to the BIA's reasonable interpretations of the INA, Koulibaly, 541 F.3d at 619, and we may not review the BIA's factual findings for these challenges, Sanchez-Robles, 808 F.3d at 692-93.
Abdulahad argues that the BIA improperly placed the burden of proof on him rather than on the Department of Homeland Security (DHS) in his December 20, 2018 motion to reopen and reconsider. First, Abdulahad contends that DHS bore the burden of proof to establish his inadmissibility because he was a returning lawful permanent resident. Abdulahad initially raised this issue in his December 20, 2018 motion to reopen and remand. He made this argument too late. It was not raised before either (1) the IJ's February 28, 2018 decision denying Abdulahad's applications for asylum, withholding of removal, and deferral of removal under the CAT, or (2) the BIA's denial of Abdulahad's motion to reopen and reconsider the same opinion. Consequently, neither of those decisions considered the burden of proof required to establish inadmissibility. Because Abdulahad...
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