Alim v. Gonzales

• Decision Date: 24 April 2006
• Docket Number: No. 04-11463.,04-11463.
• Citation: 446 F.3d 1239
• Parties: Samir M. ALIM, Petitioner, v. Alberto GONZALES, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Eleventh Circuit

446 F.3d 1239

Samir M. ALIM, Petitioner, v. Alberto GONZALES, Attorney General of the United States, Respondent.

No. 04-11463.

United States Court of Appeals, Eleventh Circuit.

April 24, 2006.

COPYRIGHT MATERIAL OMITTED

David Finn Pressly (Court — Appointed), Fowler White Boggs Banker, P.A., Tampa, FL, for Alim.

Andrew C. MacLachlan, Jennifer Paisner, Barry J. Pettinato, Kurt B. Larson, U.S. Dept. of Justice, OIL, Civ. Div., Washington, DC, for Respondent.

Petition for Review of a Decision of the Board of Immigration Appeals.

Before TJOFLAT and KRAVITCH, Circuit Judges, and JORDAN,^* District Judge.

JORDAN, District Judge:

Samir M. Alim petitions for review of a final order of the Board of Immigration Appeals, which affirmed, without opinion, a decision of an immigration judge ("IJ") denying claims for withholding of removal under 8 U.S.C. § 1231(b)(3), and withholding of removal under the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment ("CAT"), Pub.L. 105-277, § 2242, 112 Stat. 2681-761, 2681-822 (1998). See 8 C.F.R. § 208.16(b)-(c). For the reasons discussed below, we dismiss the petition in part, and deny the petition in part.

I. FACTUAL AND PROCEDURAL BACKGROUND

Mr. Alim, a native and citizen of Syria, was admitted to the United States in September of 1990 as a non-immigrant visitor for pleasure, with authorization to remain for six months. Upon admission, he presented a Bolivian passport and a U.S. non-immigrant visa issued in the name of Carlos Cabrera. He remained in the country longer than the six months authorized, and had two children in the U.S. with a Bolivian woman named Gina Ibanez. Ms. Ibanez returned to Bolivia with the children in 1997.

In 1997, Mr. Alim married a U.S. citizen named Lora, who filed a visa petition for the benefit of Mr. Alim. Lora gave birth to a child in the U.S. in 1997. In 1998, Mr. Alim was arrested for assaulting Lora, and pled nolo contendere (or no contest) in Florida circuit court for domestic battery in violation of Fla. Stat. § 784.03(1)(A). Adjudication was withheld, and Mr. Alim was sentenced to nine months' probation, fined $100, and ordered to stay away from Lora. Lora proceeded with the visa petition, and she and Mr. Alim were interviewed by the Immigration and Naturalization Service in January of 1999. At that interview, Mr. Alim stated that he had never been arrested or convicted of a crime. In July of 1999, Mr. Alim traveled to Syria for one month, and then to Bolivia.

In October of 1999, Mr. Alim was indicted in federal court for making false statements at his INS interview, in violation of 18 U.S.C. § 1001. Lora withdrew the visa petition, and divorced Mr. Alim in November of 1999.

A. THE IMMIGRATION PROCEEDINGS

On January 10, 2000, the INS served a notice to appear on Mr. Alim, commencing removal proceedings. The notice charged Mr. Alim with removability on various grounds: (1) under 8 U.S.C. § 1227(a)(1)(A), as an alien inadmissible at the time of entry, for seeking to procure a visa or admission into the U.S. by fraud, in violation of 8 U.S.C. § 1182(a)(6)(C)(i); (2) under 8 U.S.C. § 1227(a)(1)(A), as an alien inadmissible at the time of entry, for not being in possession of valid entry documentation, in violation of 8 U.S.C. § 1182(a)(7)(A)(i)(I); (3) under 8 U.S.C. § 1227(a)(1)(B), as an alien present in the U.S. for a period of time longer than originally permitted; and (4) under 8 U.S.C. § 1227(a)(2)(E)(i), for committing a crime of domestic violence after admission to the U.S.

On April 5, 2000, Mr. Alim married another U.S. citizen, Elizabeth. As had Lora, Elizabeth also filed a visa petition for Mr. Alim's benefit.

Mr. Alim was convicted on the federal false statements charge on April 12, 2000. The INS subsequently amended its charges against Mr. Alim on May 9, 2000, alleging that he was also subject to removal under 8 U.S.C. § 1227(a)(2)(A)(ii) as an alien convicted after admission to the U.S. of two or more crimes involving moral turpitude (i.e., the 1998 domestic battery plea and the 2000 false statements conviction).

An IJ held a hearing on September 28, 2000. With one exception, Mr. Alim admitted all of the factual allegations supporting the INS' charges. In order to preserve his claim for cancellation of removal, Mr. Alim denied that he sought to enter the U.S. by fraud. At some time before the hearing, Mr. Alim submitted an application for cancellation of removal, presumably under 8 U.S.C. § 1229b. Mr. Alim also explained that he was planning on filing an application for adjustment of status to that of a permanent resident under 8 U.S.C. § 1255, but had yet to do so because Elizabeth's visa petition was pending. The IJ explained that Mr. Alim did not meet the 10-year continuous residence requirement to be eligible for cancellation of removal. He then returned the cancellation of removal application to Mr. Alim's counsel, without objection.

In November of 2000, Mr. Alim filed a petition for a writ of error coram nobis in the Florida circuit court where he pled no contest to domestic battery in 1998. He sought to vacate his plea under Rule 3.172 of the Florida Rules of Criminal Procedure because the court had not advised him of the potential immigration consequences. The state responded by filing a short memorandum. The state did not challenge the factual allegations made by Mr. Alim, but asked the court to convert the disposition of the case to a "nolle prosequi,"¹ which the state court clerk did on March 2, 2001.

In early 2002, Elizabeth's visa petition on behalf of Mr. Alim was approved. In March of 2002, Mr. Alim filed an application to adjust his status to that of a permanent resident under 8 U.S.C. § 1255. Elizabeth, however, withdrew her visa petition some time later in 2002.

The IJ held another hearing on January 17, 2003. Mr. Alim admitted to being removable under three of the five grounds alleged by the INS. He denied removability under 8 U.S.C. § 1227(a)(2)(E)(i), for being convicted of a crime of domestic violence, and denied removability under 8 U.S.C. § 1227(a)(2)(A)(ii), for being convicted of two crimes involving moral turpitude after admission. The IJ found that all of the charges supporting removability were sustained by clear and convincing evidence. At the conclusion of the hearing, Mr. Alim said that he would be filing an application for withholding of removal and relief under the U.S. implementation of the CAT.

On February 13, 2003, Mr. Alim filed an application for asylum under 8 U.S.C. § 1158, withholding of removal under 8 U.S.C. § 1231(b)(3), and withholding of removal under the CAT. At an evidentiary hearing on May 20, 2003, Mr. Alim offered copies of the U.S. Department of State reports on Syria and his own testimony. There was no other evidence presented. After the IJ noted that the application was untimely insofar as it requested asylum, Mr. Alim testified in support of his claims for withholding of removal under § 1231(b)(3) and withholding of removal under the CAT.

B. MR. ALIM'S TESTIMONY AND THE IMMIGRATION JUDGE'S RULING

Mr. Alim, 39 years old at the time of the May 30, 2003 hearing, testified that he has been a Christian since he was baptized at the age of one, and that his family is Christian. He has no family in Syria to support him financially because Christians suffer extreme discrimination and have trouble finding work on account of their religion.

When he was in his early twenties, his cousin, also a Christian, left Syria to fight in a Lebanese civil war on behalf of Christians. A family member told Mr. Alim that his cousin was shot and killed in Lebanon by Muslims because he was suspected of being a spy for Israel. The family member also showed Mr. Alim a picture of the cousin sitting on top of an Israeli tank. Mr. Alim does not know how the family member knew how or why the cousin was killed. Mr. Alim could not produce a death certificate or other physical evidence relating to his cousin's death.

When he was a teenager, Mr. Alim joined a group called the "Christian Unity Brothers." As a member of this group, Mr. Alim worked at converting Muslims to Christianity. There was a "bad point" or "black point" in his school records, and "negative reports" against him because he was a member of this group. Certain unidentified Muslims also went "after him" for being an outspoken Christian. While in civilian life, however, Mr. Alim was never arrested, detained, or imprisoned for any reason.

Mr. Alim joined the Syrian air force in 1981. Neither his Christian faith, nor his membership in the Christian Unity Brothers, precluded him from serving in the military. Although his superiors did not know he was in a specific group, they did know Mr. Alim was an outspoken Christian. Sometime in 1987 or 1988, while he was still in the air force, one of his friends, also a Christian, was chased and shot by a group of Muslims.

Mr. Alim was never detained, arrested, or imprisoned while serving in the military. He was automatically promoted at least once during his eight years of service. He testified, however, that the Syrian military discriminates against its Christian servicemen in job placements. He was therefore denied certain rights and treated badly while serving in the military.

In mid-1989, Mr. Alim deserted the Syrian military, and spent approximately six months traveling throughout the country in an effort to evade capture. In 1990, he was able to leave Syria illegally with the help of a friend. He boarded a flight to Bolivia, where he spent five or six months, before using a false Bolivian passport to enter the United States.

In 1999, Mr. Alim returned to Syria to visit his ill, 74-year-old mother, and spent 30 days there. He fraudulently entered and exited through Jordan with the help of an old friend, successfully evading Syrian immigration and law enforcement authorities. He first testified that he entered Syria with a false...