Bare v. Barr
| Decision Date | 16 September 2020 |
| Docket Number | No. 17-73269,17-73269 |
| Citation | 975 F.3d 952 |
| Parties | Ibrahim Farhab BARE, Petitioner, v. William P. BARR, Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Kari E. Hong (argued), Boston College Law School, Newton, Massachusetts, for Petitioner.
Michael C. Heyse (argued), Acting Senior Litigation Counsel; Mary Jane Candaux, Assistant Director; Joseph H. Hunt, Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals, Agency No. AXXX-XX6-746
Before: Diarmuid F. O'Scannlain, Eugene E. Siler,* and Jacqueline H. Nguyen, Circuit Judges.
Ibrahim Farhab Bare, a native and citizen of Somalia, petitions for review of a decision of the Board of Immigration Appeals ("BIA") dismissing his appeal. Bare came to the United States as a stowaway in 1996, requested asylum, and was placed in "asylum-only" proceedings before an immigration judge ("IJ"). Bare was granted asylum in 1997. Over a decade later, the government moved to reopen Bare's asylum-only proceeding to terminate his grant of asylum based on his conviction for being a felon in possession of a firearm or ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).1 The IJ granted the motion and reopened Bare's asylum-only proceeding. In the reopened proceeding, Bare requested to adjust his status to that of a lawful permanent resident, but the IJ refused to consider his request, reasoning that an IJ in asylum-only proceedings lacks jurisdiction to adjust status. Bare then requested a continuance to allow him to apply for an adjustment of status with the United States Citizenship and Immigration Services ("USCIS"). The IJ terminated Bare's asylum without addressing his continuance request. The IJ then denied Bare's request for withholding of removal, finding that his conviction constituted a particularly serious crime making him ineligible for it. Finally, the IJ denied Bare's requests for withholding and deferral of removal under the Convention Against Torture ("CAT"). Bare appealed to the BIA, which affirmed the IJ's decision.
Bare now petitions for review of the BIA's order affirming the IJ's findings and decision, arguing that the BIA and IJ erred in two conclusions: (1) that his firearm conviction constitutes a particularly serious crime; and (2) that the IJ lacked jurisdiction to consider his request for an adjustment of status. The government contends that Bare has not exhausted his particularly serious crime argument. However, we conclude that Bare has adequately exhausted his particularly serious crime argument but the BIA and IJ did not err in concluding that his firearm conviction constitutes a particularly serious crime, thus making him ineligible for withholding of removal. The termination of Bare's grant of asylum by reopening his asylum-only proceeding was not error, and the IJ did not have jurisdiction to consider Bare's request for an adjustment of status because of the limited scope of such proceedings. Bare's request for an adjustment of status should have been made to the USCIS, not the IJ. Therefore, we deny review.
Bare entered the United States in 1996 at the age of seventeen as a stowaway aboard a ship. He requested asylum and was placed into "asylum-only" exclusion proceedings. An IJ granted Bare asylum in 1997. Over the next fifteen years, Bare lived as an asylee in the United States, but never applied for an adjustment of status to become a lawful permanent resident. During this time, Bare entered into a relationship with a woman, whom he considers his common-law wife, and they have two children together. His wife has another child from a previous relationship whom Bare identifies as his stepson. While an asylee, Bare had three felony convictions prior to his conviction at issue here: possession of burglary tools in 2000 and resisting arrest in both 2001 and 2002.
In 2009, Bare and his wife moved to Whippoorwill, Arizona, a small community deep in the Navajo Nation. Shortly thereafter, Bare began operating an unlicensed pawnshop out of his home, where he also sold alcohol and drugs. His pawnshop dealt in firearms as well, which is how he came into possession of the firearms he was convicted of possessing. Not surprisingly, Bare's business attracted trouble for this quiet, rural community. There was an influx of vandalism, crime, violence, and unsavory characters. During his time in Whippoorwill, there was a series of incidents where Bare exhibited aggressive and threatening behavior toward others, including children: he verbally berated a child at his daughter's school, he boarded a school bus full of middle-school students and cursed and threatened them with violence, he pointed a rifle at a teenager and threatened to kill him for allegedly stealing a television from him, and he was part of a group that beat a teenager with a baseball bat.
The incident leading to the revocation of Bare's asylum occurred at his house in 2012. One night, a neighbor upset about a pawn transaction came to Bare's house. Bare and his children were sleeping in the house, so his wife answered the door. An argument ensued which woke up Bare, who joined in. The situation escalated when Bare pointed a pistol at the unarmed neighbor. As the neighbor left, Bare fired the pistol into the air. The police later recovered the pistol and five rounds of ammunition from Bare's house. As a result, Bare was charged with being a felon in possession of a firearm.
Federal agents went to Bare's home with an arrest warrant a month later, after he failed to appear in court. Inside the house agents found two rifles and hundreds of rounds of ammunition of various calibers.
Bare was convicted by a jury of two counts of being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). He was eventually sentenced to 54 months’ imprisonment. See United States v. Bare , 806 F.3d 1011, 1015–17 (9th Cir. 2015) ().
As a result of his conviction, the Department of Homeland Security ("DHS") filed a motion with the IJ to reopen Bare's asylum-only proceeding from 1997 to terminate his grant of asylum. The IJ granted the government's motion to reopen the proceeding. In the proceeding, Bare applied to the IJ for an adjustment of status, but the IJ concluded that he did not have the authority to consider it because Bare was in a reopened asylum-only proceeding and, in asylum-only proceedings, an IJ cannot consider requests for an adjustment of status. Bare then requested the IJ defer a decision on whether to terminate his asylum in order to allow him time to apply for an adjustment of status with the USCIS. The IJ terminated Bare's asylum status without ruling on, or mentioning, his pending continuance request. Next, the IJ denied Bare's request for withholding of removal, finding that his firearm conviction was a particularly serious crime which made him ineligible for withholding of removal. Finally, the IJ denied Bare's request for withholding and deferral of removal under the CAT. After the hearing, the IJ denied Bare's motion to reconsider his continuance request to allow him to apply to USCIS for an adjustment of status.
The BIA affirmed the IJ's decision, finding that (1) the IJ did not have jurisdiction over his adjustment of status request and (2) Bare's firearm conviction was a particularly serious crime, barring withholding of removal. Bare now seeks review of the BIA's order affirming the IJ's findings and decision.
We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1). To the extent the BIA's decision arises from asylum-only proceedings, the BIA's denial of Bare's appeal is the functional equivalent of a final order of removal. See Bao Tai Nian v. Holder , 683 F.3d 1227, 1230 (9th Cir. 2012).
As a preliminary matter, the government contends that we lack jurisdiction over Bare's specific argument that his firearm conviction is a status offense and cannot be a particularly serious crime because he failed to exhaust the argument by adequately raising the issue before the BIA. We disagree.
Exhaustion requires a non-constitutional legal claim to the court on appeal to have first been raised in the administrative proceedings below, Barron v. Ashcroft , 358 F.3d 674, 678 (9th Cir. 2004), and to have been sufficient to put the BIA on notice of what was being challenged, Alvarado v. Holder , 759 F.3d 1121, 1128 (9th Cir. 2014). A petitioner must do more than make a "general challenge to the IJ's decision." Zara v. Ashcroft , 383 F.3d 927, 930 (9th Cir. 2004). But this does not require the issue to have been raised in a precise form during the administrative proceeding. Vizcarra-Ayala v. Mukasey , 514 F.3d 870, 873 (9th Cir. 2008) ; see Diaz-Jimenez v. Sessions , 902 F.3d 955, 959 (9th Cir. 2018) . Rather, the petitioner may raise a general argument in the administrative proceeding and then raise a more specific legal issue on appeal. See Moreno-Morante v. Gonzales , 490 F.3d 1172, 1173 n.1 (9th Cir. 2007). What matters is that the BIA was sufficiently on notice so that it "had an opportunity to pass on this issue." Zhang v. Ashcroft , 388 F.3d 713, 721 (9th Cir. 2004) (per curiam).
In his brief to the BIA, Bare argued that "the IJ failed to consider the appropriate factors and relied on improper evidence in making the particular[ly] serious determination." The government contends that this was insufficient to put the BIA on notice that he was challenging the IJ's failure to address the first factor of the test used to determine if a crime is particularly serious. Bare's contention...
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