Almutairi v. Holder
| Decision Date | 12 July 2013 |
| Docket Number | No. 12-2734,12-2734 |
| Parties | HAMAD FALHA ALMUTAIRI, Petitioner, v. ERIC H. HOLDER, JR., Attorney General of the United States, Respondent. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
On Petition for Review from an Order of the
Board of Immigration Appeals.
No. A097 838 024
Before FLAUM, WOOD, and HAMILTON, Circuit Judges.
WOOD, Circuit Judge. Hamad Almutairi, a citizen of Kuwait, is attempting in this case to obtain review of the denial of his application for asylum and withholding of removal. We say "attempting" because he encountered along the way some procedural snarls in connection with a grant of voluntary departure; these difficulties caused his case to bounce from the Board of immigrationAppeals back to the Immigration Judge for further consideration of voluntary departure. At this point, however, that issue is off the table and the case is ready for decision. We conclude that we lack jurisdiction to review the BIA's decision that Almutairi's asylum application is untimely. We can reach the merits of his application for withholding of removal, but we conclude that substantial evidence supports the Board's decision to deny that relief.
According to his testimony, which the IJ found credible, Almutairi served in the Kuwaiti Air Force in August of 1990, when Iraq invaded and occupied Kuwait. After the Kuwaiti military surrendered, Almutairi remained in the country and joined a resistance group. Iraqi soldiers captured him in September 1990. What followed was a ghastly period of nine days during which he was brutally tortured: his thumb nails were ripped off, he was electrocuted, he was cut with knives and burned with cigarettes, and he was beaten. As if that were not enough, his captors also brought a fellow prisoner into his cell, sodomized that man with a stick, and warned Almutairi that the same would happen to him if he did not tell them where the Kuwaiti resistance was hiding its weapons. Almutairi finally cracked under the pressure and brought the Iraqi soldiers to a house that he thought would be unoccupied. It was not. When the soldiers entered the house, they found and arrested a man who was inside. They then releasedAlmutairi. Two days later the soldiers publicly executed the man from the house, along with three others.
Almutairi fled the country, but he and his family later returned to their home in Kuwait after the country's liberation. Once back in Kuwait, Almutairi received four threatening phone calls over several months in 1991 and 1992. The caller, who appeared to have a Kuwaiti accent, accused Almutairi of informing on "these four guys" who were executed a year earlier. Around this time, his car tires were slashed while he was parked at a shopping center. He never reported any of these threats to the Kuwaiti government. Almutairi's family eventually encouraged him to leave the country.
Two years after the threats, after spending time in Saudi Arabia, Lebanon, and the united Arab Emirates, Almutairi came to the united States in 1994 on a nonimmigrant student visa. He ended his studies ten years later, apparently taking so long because he feared that upon completing his degree he would be required to return to Kuwait. In 2006 he was served with a Notice to Appear for violating the conditions of his visa. The following year, after his family had received another threatening phone call in Kuwait, he applied for asylum, withholding of removal, and relief under the Convention Against Torture.
At his immigration hearing Almutairi asserted that he feared persecution as a member of a social group consisting of persons who had been forced to assist the Iraqi troops during the invasion of 1990 and who were now perceived by Kuwaitis as being sympathetic toIraq. He believed that the threatening caller was a family member of one of the four men who were executed in Kuwait, and that this man had been tracking his movements in Kuwait. Almutairi explained that he did not complain to the Kuwaiti government or apply earlier for asylum in the united States because he feared that if anyone from Kuwait found out what had happened in 1990 he would be targeted and his family's reputation would be destroyed.
The IJ denied Almutairi's requests for relief. The IJ first held that Almutairi was ineligible for asylum because he had not applied within one year of his 1994 entry into the united States, nor had he shown changed country conditions or extraordinary circumstances sufficient to justify his delay. With respect to Almutairi's claim for withholding of removal, the IJ concluded that he had demonstrated past persecution but that the government had rebutted the presumption of future persecution because Iraq no longer occupies Kuwait, and no evidence suggested that the Kuwaiti government would harm him. The IJ also ruled that Almutairi had not demonstrated membership in a cognizable social group. Finally, Almutairi's claim under the Convention Against Torture failed, the IJ reasoned, because he could not show that he would be tortured by Iraqi troops after their expulsion from Kuwait in 1991. The IJ nonetheless granted Almutairi the option of voluntarily departing within 60 days; that option would convert into an order of removal if he chose not to depart voluntarily.
In an opinion issued on June 28, 2012, the Board of Immigration Appeals upheld the IJ's decision. It agreed with the IJ that Almutairi had presented no exceptional circumstances justifying his untimely asylum application. This untimeliness, the Board ruled, also prevented Almutairi from pursuing humanitarian asylum. The Board declined to rule on the cognizability of Almutairi's proposed social group but reasoned that he had not demonstrated a clear probability that he would be persecuted on account of his membership in that group, nor had he shown that the Kuwaiti government would be unwilling or unable to protect him. The Board deemed waived his claim under the Convention Against Torture. Finally, the Board noted that it lacked the power to reinstate Almutairi's period of voluntary departure (which expired long before the Board decided his appeal) because he had not submitted proof of the posting of a bond. But because the IJ had failed to notify Almutairi of the necessity of posting a bond, the Board issued a limited remand "solely for the Immigration Judge to grant a new period of voluntary departure with the requisite advisals."
On July 25, 2012, Almutairi filed a petition for review from the June 28, 2012, decision of the Board. This prompted a motion from the government asking this court to dismiss the petition for review for "prudential" reasons, without prejudice to re-filing upon the issuance of an administratively final order of removal that completed the adjudication of voluntary departure. (The problem with the IJ's first order was that it did not include all the warnings that must accompany a voluntary departure option; the Board remanded so that the IJ could cure this one flaw, not for purposes of any substantive ground of relief.) In its motion, the government points out that the regulations governing voluntary departure, 8 C.F.R. § 1240.26, require noncitizens to choose either voluntary departure or a petition for review to a federal court of appeals, because the filing of a petition for review automatically terminates the grant of voluntary departure. See id. § 1240.26(i). The government fears that if this court entertains Almutairi's petition for review while the Board's remand to the IJ to grant a new period of voluntary departure is pending, Almutairi could potentially avoid having to make that choice. In other words, the government suggests, he would gain the benefit of a petition for review (and, if successful, the chance to remain in the United States), yet still have the option of voluntary departure upon its reinstatement by the IJ. Full adjudication of the voluntary departure option is necessary, the government concludes, in order to permit (or force) Almutairi to choose between adhering to the terms of the voluntarydeparture agreement and seeking judicial review of the Board's order.
Almutairi responds that the Board's decision is final with respect to his claims for asylum and withholding of removal. He notes that the law gives only 30 days for an aggrieved person to file a petition for review. See 8 U.S.C. § 1252(b)(1). His concern, broadly speaking, is that his substantive claims do not get lost in the shuffle between the BIA and the IJ; he fears that the Board's June 28, 2012, decision would be regarded as final for purposes of his substantive claims, noting that the Board's decision concludes as follows:
For these reasons, we will dismiss [Almutairi's] appeal, and remand the record solely for the Immigration Judge to grant a new period of voluntary departure with the requisite advisals.
(Emphasis added.) This limited remand, Almutairi argues, does not give him the right to ask the IJ to consider new claims or evidence on remand, contrary to the representation in the government's motion. Hence, he concludes, his petition for review from the June 28 decision was properly filed and can be adjudicated.
The government replies that Almutairi would not lose his right to obtain judicial review of the Board's decisions on his asylum and withholding claims, because he retains the right to file a timely petition for review from the IJ's new removal order, once it becomes final. Although the INA permits a petition for review only...
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