Abushagif v. Garland, 19-60807

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: Jerry E. Smith, Circuit Judge
• Citation: 15 F.4th 323
• Parties: Muntaser B. ABUBAKER ABUSHAGIF, Petitioner, v. Merrick GARLAND, U.S. Attorney General, Respondent.
• Docket Number: No. 19-60807,19-60807
• Decision Date: 24 September 2021

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Muntaser B. ABUBAKER ABUSHAGIF, Petitioner,
v.
Merrick GARLAND, U.S. Attorney General, Respondent.

No. 19-60807

United States Court of Appeals, Fifth Circuit.

FILED September 24, 2021

Alison R. Caditz, Attorney, Perkins Coie, L.L.P., Jeri Leigh Miller, Sidley Austin, L.L.P., for Petitioner.

Christina Petersen Greer, Trial Attorney, U.S. Department of Justice, Civil Division, Washington, DC, Paul Randolph Perkins, U.S. Department of Justice, Civil Division, Appellate Section, Washington, DC, Papu Sandhu, Senior Litigation Counsel, Jane Tracey Schaffner, U.S. Department of Justice Office of Immigration Litigation, Washington, DC, for Respondent.

Before Smith, Higginson, and Engelhardt, Circuit Judges.

Jerry E. Smith, Circuit Judge:

Muntaser Abushagif, a Libyan national, applied for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT") in September 2011. At his hearing, he voluntarily withdrew his application and agreed to pre-conclusion voluntary departure; the immigration judge ("I.J.") ordered him to leave the country by April 5, 2012. In 2019, Abushagif moved to reopen his proceedings, seeking the same relief on the basis that country conditions in Libya had worsened and that he feared reprisal for his role in the former regime's national guard. Moreover, he asserted that he had converted to Christianity and was bisexual and feared persecution on those bases too. The I.J. denied his motion, and the Board of Immigration Appeals ("BIA" or "Board") dismissed his appeal. Abushagif petitioned for this court's review. We grant in part, deny in part, and remand for the limited purpose of the Board's assessing his CAT claim.

I.

A.

Abushagif was admitted to the United States as a non-immigrant student but failed to carry a full course of study despite a condition that he do so. For that reason, the Department of Homeland Security ("DHS") sought to have him removed in September 2010.

Shortly afterward, Libya was engulfed in a civil war that erupted in February 2011. In September 2011, with the war raging in Libya but with Muammar Qadhafi still leading the country, Abushagif

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applied for asylum, withholding of removal, and protection under CAT.

In his application, Abushagif alleged that his brother had been jailed for declining to join Qadhafi's forces in killing civilians. Abushagif was afraid that if he returned to Libya, he would be conscripted to fight for Qadhafi "against [his] own people," "just like ... all young people in Libya." Abushagif noted that Qadhafi's forces had asked his father about Abushagif's whereabouts. Abushagif stated that he did not want to participate in the civil war.

In the part of his application for asylum and for withholding of removal that asked about political, religious, and military affiliations, Abushagif stated only that he had organized a group of friends to talk about Libyan politics and economics, and he explicitly disclaimed that that group had engaged in any subversive activities. In response to a question that asked specifically about his involvement in "military or paramilitary group[s], civil patrol[s], [and] guerilla organization[s]," Abushagif failed to indicate that either he or any family members had served in such entities.

With his application, Abushagif included a letter from his father that warned that Abushagif would be in danger if he returned to Libya. The letter explained that Qadhafi's forces had arrested Abushagif's older brother for refusing to harm civilians but that the brother was also an "outcast for not wanting to ally with the rebels." The letter stated that Abushagif's father had lost his business and was thus unable to support his son financially. Nowhere among those unfortunate statements did the letter suggest that Abushagif's father had ever worked for the Qadhafi regime.

In December 2011, the I.J. held a hearing on Abushagif's application. By that point, Qadhafi's administration had collapsed, and he had been killed by rebels. During the hearing, Abushagif chose to withdraw his application and agreed to pre-conclusion voluntary departure. The I.J. told him that he must leave the country by April 5, 2012.

B.

Abushagif did not leave, and in January 2019 he filed a motion to reopen and stay removal, requesting that his proceedings be reopened to allow him to apply for asylum, withholding of removal, and protection under CAT. Abushagif stated that the country conditions in Libya had materially changed for the worse since his original application. Moreover, he averred that he would be a target for persecution if he returned because of his and his family's status. Abushagif declared that his father had been kidnapped and tortured by militias because of his work for the Qadhafi administration and that those militias planned to kidnap him once he landed in Libya. Abushagif also stated that he feared torture or death because he had converted to Christianity and come out as bisexual. Finally, he stated that he feared persecution because he had served in the Qadhafi regime's national guard.

The I.J. denied the motion to reopen and stay removal. The I.J. identified several inconsistencies between Abushagif's initial application and his motion to reopen, as well as discrepancies between Abushagif's statements in the motion and his supporting documentation. Moreover, the I.J. determined that Abushagif had failed to meet his burden of showing that country conditions had materially changed and had failed to show that evidence of such changed conditions was not available at Abushagif's previous hearing. Relatedly, the I.J. concluded that much of the relevant information in Abushagif's motion to reopen—such as his and his father's service

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under the Qadhafi regime—could have been presented with his application in 2011.

In March 2019, Abushagif appealed to the BIA. Reviewing the denial, the BIA determined that the I.J. did not clearly err in concluding that there were materially inconsistent statements between Abushagif's initial application and his motion to reopen, specifically regarding his and his father's roles working for the Qadhafi administration and his involvement with a military group. The Board also concluded that the I.J. didn't clearly err in finding that Abushagif's claims about the kidnapping and torture of his father, as well as his father's assertion that his kidnappers had threatened Abushagif, contained serious inconsistencies. Unlike the I.J., the BIA acknowledged that conditions in Libya had worsened for those who had supported the Qadhafi administration, but because of the inconsistencies, the Board determined that Abushagif had failed to provide "persuasive evidence that he has a well-founded fear of persecution" because of his service in Qadhafi's national guard.

Moreover, the Board agreed with the I.J. that Abushagif had failed to provide corroborating evidence for his claims that he had converted to Christianity and that he was bisexual. The BIA rejected Abushagif's contention that his motion was "entitled to a presumption of truth," stating instead that it was his "burden" to "provid[e] credible and corroborating evidence that reveals a reasonable likelihood that the statutory requirements for relief have been satisfied."

Because Abushagif had failed to provide such evidence, the BIA concluded that he had not established a prima facie case for relief and dismissed his appeal in September 2019. Abushagif timely petitioned for this court's review in October 2019. See 8 U.S.C. § 1252(a)(1), (b)(1).

II.

A.

"In reviewing the denial of a motion to reopen removal proceedings, we apply a highly deferential abuse-of-discretion standard." Nunez v. Sessions , 882 F.3d 499, 505 (5th Cir. 2018) (per curiam). We affirm the BIA's decision so long as "it is not capricious, without foundation in the evidence, or otherwise so irrational that it is arbitrary rather than the result of any perceptible rational approach." Gonzalez-Cantu v. Sessions , 866 F.3d 302, 304–05 (5th Cir. 2017) (quoting Gomez-Palacios v. Holder , 560 F.3d 354, 358 (5th Cir. 2009) ). We review the BIA's legal conclusions de novo , however, "unless a conclusion embodies the Board's interpretation of an ambiguous provision of a statute that it administers." Singh v. Gonzales , 436 F.3d 484, 487 (5th Cir. 2006).

In general, we have authority to review only the Board's decision, and we review the I.J.’s decision only where it "has some impact on the BIA's decision, as when the BIA has adopted all or part of the IJ's reasoning." Enriquez-Gutierrez v. Holder , 612 F.3d 400, 407 (5th Cir. 2010). Moreover, we "may usually only affirm the BIA on the basis of its stated rationale." Id.

B.

The Immigration and Nationality Act of 1965 ("INA"), the relevant law here, "carefully limits an alien's ability to bring motions to reopen." Qorane v. Barr , 919 F.3d 904, 911 (5th Cir. 2019), cert. denied , ––– U.S. ––––, 140 S. Ct. 907, 205 L.Ed.2d 459 (2020). Normally, an alien may file only one such motion and must do so within ninety days of the entry of a final removal order. See id. ;

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8 U.S.C. § 1229a(c)(7). But there are...