Audi v. Barr
| Decision Date | 18 December 2020 |
| Docket Number | No. 20-3196,20-3196 |
| Parties | FRAS ABDUL KAZEM AUDI, Petitioner, v. WILLIAM P. BARR, Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Sixth Circuit |
NOT RECOMMENDED FOR PUBLICATION
File Name: 20a0708n.06
ON PETITION FOR REVIEW FROM THE BOARD OF IMMIGRATION APPEALS
BEFORE: CLAY, GIBBONS, and NALBANDIAN, Circuit Judges.
CLAY, Circuit Judge. Fras Abdul Kazem Audi ("Audi") filed a timely petition for review of the decision by the Board of Immigration Appeals ("BIA") affirming the denial of his asylum application and application for withholding of removal. Audi claims that the BIA erred in (1) finding that he failed to file his asylum application within a reasonable period of time, pursuant to 8 C.F.R. § 1208.4(a)(5), given the existence of extraordinary circumstances justifying the delay of his application, and in (2) denying his asylum application on the merits as he had suffered past persecution and faced the threat of future persecution based on his membership in a particular social group. For the reasons set forth below, we DENY his petition for review.
Fras Abdul Kazem Audi was born in Samawah, Iraq on May 24, 1979. He was raised as a Shi'a Muslim, which was the predominant religion of those individuals living in Samawah. His parents, three sisters, and one of his brothers live in Samawah, and his other brother lives in Jordan. From 1997 to 2000, Audi served in the Iraqi military pursuant to a mandatory three-year conscription, during which time he was stationed in Basra and worked as a cook. He did not engage in any combat while in the military. Further, while living in Iraq, he was never arrested, nor did he participate in any political party.
Following the fall of Saddam Hussein's regime in 2003, a number of militias formed in Iraq. The first of several incidents in connection with these militias occurred in mid-October 2003, during which a militia made up of Sunni Muslims opened fire at the bus while Audi was on board. Several passengers were killed in this attack, but Audi was not harmed because he was able to hide behind one of the seats. After this incident, the Al-Mahdi Army, a group of Shi'a Muslims, threatened Audi that he would have to join the militia or else he would be killed. Despite numerous recruitment calls, Audi refused to join and fled to Syria, remaining there for two months on a visitor visa. Audi then returned to Iraq in January 2004, after his parents convinced him that United States troops in the country would help quell the instability in the area. But four days after his return, while on the way home from shopping at a market, Audi and his cousin, Hassan, were attacked by three masked men who tried to pull them into a car. Audi was able to flee, despite sustaining injuries while fighting the men off, but his cousin was pulled into the car and later beaten, tortured, and killed. Audi reported the attack to the police and went to the hospital to receive treatment for his injuries.
On February 4, 2004, Audi left Iraq again and returned to Syria with plans to obtain refugee status through the United Nations. Audi then met a woman, who was a U.S. citizen, through her brother who used to live in the same neighborhood as Audi. The two later married in Jordan and moved to the United States, at which point Audi's wife petitioned for permanent residency on his behalf.
On June 8, 2005, Audi was admitted into the United States as a nonimmigrant spouse of a U.S. citizen pursuant to a K-3 visa. This visa authorized Audi to remain in the United States until June 7, 2007. On February 27, 2007, before the visa expired, Audi filed an Application to Register Permanent Residence or Adjust Status, Form I-485, which was denied by the United States Citizenship and Immigration Services ("USCIS") because it lacked necessary documents. On December 15, 2007, Audi filed a second I-485 application, this time with the help of a now disbarred attorney. This application was denied by USCIS on March 24, 2009, due to abandonment for failure to appear for fingerprinting and for an interview. Although his attorney at the time had notice of these requirements, the attorney did not inform Audi of his fingerprinting appointment or his scheduled interview. USCIS informed Audi that this denial of the second application left him "without lawful immigration status," he was "now present in the United States in violation of the law," and was "required to depart the United States within 30 days from the date of this decision." (Doc. No. 9, Notice of Decision at 1001.) During this time, Audi had separated from his wife, and he officially filed for divorce on December 28, 2009.
On November 27, 2009, Audi acquired new counsel and filed an Application for Asylum and for Withholding of Removal, Form I-589. In the application, Audi sought asylum or withholding of removal based on his religion, membership in a particular social group, and the Convention Against Torture. USCIS referred Audi's asylum application to an immigration judge on April 8, 2010, noting that Audi had "established changed circumstances materially affecting [his] eligibility for asylum, or extraordinary circumstances directly related to [his] delay in filing," but "failed to file [his] application within a reasonable period of time given those circumstances." (Doc. No. 9, Referral Notice at 261.) Audi was then served with a Notice to Appear ("NTA") at removal proceedings for violating section 237(a)(1)(B) of the Immigration and Nationality Act("INA") for "remain[ing] in the United States for a time longer than permitted" after being admitted "as a nonimmigrant under Section 101(a)(15) of the Act." (Doc. No. 9, NTA at 1154.) USCIS initiated removal proceedings on April 12, 2010, by filing the NTA with the Immigration Court in Detroit.
On September 1, 2010, at the master calendar hearing, Audi denied the allegation that he remained in the U.S. after June 7, 2007, without authorization, but admitted that he was not a U.S. citizen or national, he was a native and citizen of Iraq, and he was admitted into the United States as a nonimmigrant spouse. The Immigration Judge then determined that the denied allegation "had been established by the requisite clear and convincing evidence, and sustained the charge of removability, finding that it had also been established by the requisite clear and convincing evidence." (Doc. No. 9, Decision of the IJ at 408.) The judge designated Iraq as the country of removal.
On October 16, 2017, Audi filed a new 1-589 application, again requesting asylum or withholding of removal based on having suffered past persecution on account of his religion and membership in a particular social group, as well as under the Convention Against Torture. He also feared future persecution if he returned to Iraq from both the Shiite militia who tried to recruit him as well as the Sunni militiamen who attacked the bus, and he specifically noted that he was concerned about persecution based on his affiliation with the U.S. After a number of rescheduled hearings, Audi appeared in front of an Immigration Judge on November 13, 2017, for his individual hearing.
The Immigration Judge issued her decision on March 1, 2018, denying Audi's application under all asserted grounds for relief and ordering Audi to be removed to Iraq. While she found Audi's testimony to be credible, the IJ denied the asylum application on grounds that it was nottimely filed because, even within the exception for extraordinary circumstances to the one-year filing deadline based on his lawful nonimmigrant status, it was not filed within a reasonable time period thereafter. Notwithstanding the untimely filing, the IJ considered the merits of the application and found that Audi had established past persecution from 2003-2004, but she denied the application because conditions in Iraq had changed since 2004. She also denied the application based on his well-founded fear of future persecution because she determined that Shi'a Muslims were not harmed due to their religion and Audi's two proposed social groups— "individuals who refuse forced recruitment into militia groups and Americanized or Westernized Iraqis"—were not cognizable as they respectively lacked social visibility and particularity. (Doc. No. 9, Decision of the IJ at 424-26.) She then denied the withholding of removal application because Audi did not meet the "higher 'clear probability' standard" used to determine eligibility for withholding of removal under the Act." (Id. at 426 (quoting Koliada v. INS, 259 F.3d 482, 489 (6th Cir. 2001)).) Finally, she denied Audi's application for withholding of removal based on the Convention Against Torture because he "ha[d] not met his burden to establish that it is more likely than not that he will be tortured by or with the acquiescence of the Iraqi government if returned to Iraq." (Id.)
On March 16, 2018, Audi filed a Notice of Appeal with the Board of Immigration Appeals. On December 12, 2019, Audi also filed a motion to remand based on new evidence that was not discoverable at the time of the individual hearing, which was consolidated with his pending appeal before the BIA. On February 5, 2020, the BIA issued a separate opinion affirming the decision of the Immigration Judge, both as to the untimeliness and underlying merits of the applications,1 anddismissed Audi's appeal. The BIA also denied the motion to remand because Audi "ha[d] not met his heavy burden to demonstrate that if the record were remanded for further proceedings it is likely that the outcome of his case would be changed." (Doc. No. 9, Decision of the BIA at 6.) This timely petition for review followed.
"Where the BIA reviews the immigration judge's decision and issues a separate opinion, rather than summarily affirming the immigration judge's decision, we review the BIA's decision as the final agency determination." Khalili v. Holder, 557 F.3d 429, 435 (6th Cir. 2009). B...
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