Berhane v. Holder, 09-3153.

• Decision Date: 04 June 2010
• Docket Number: No. 09-3153.,09-3153.
• Parties: Biniam Fitwi BERHANE, Petitioner,v.Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

606 F.3d 819

Biniam Fitwi BERHANE, Petitioner,v.Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 09-3153.

United States Court of Appeals Sixth Circuit.

Argued: March 12, 2010.

Decided and Filed: June 4, 2010.

Rehearing and Rehearing En Banc Denied Aug. 13, 2010.

ARGUED: David Garfield, Law Office, Washington, DC, for Petitioner. Theo Nickerson, United States Department of Justice, Washington, DC, for Respondent. ON BRIEF: David Garfield, Law Office, Washington, DC, for Petitioner. Theo Nickerson, United States Department of Justice, Washington, DC, for Respondent.

Before KENNEDY, MOORE and SUTTON, Circuit Judges.

SUTTON, J., delivered the opinion of the court, in which KENNEDY, J., joined. MOORE, J. (pp. 825-29), delivered a separate concurring opinion.

SUTTON, Circuit Judge.

Biniam Berhane, a native and citizen of Ethiopia, claims that throwing rocks at police during anti-government demonstrations amounts to a political crime, which permits him to seek asylum, as opposed to a “serious nonpolitical crime,” which bars him from seeking asylum and withholding of removal. 8 U.S.C. §§ 1158(b)(2)(A)(iii), 1231(b)(3)(B)(iii). The Board of Immigration Appeals rejected Berhane's argument, concluding that he had committed a “serious nonpolitical crime.”

At first glance, there are three seemingly good reasons for upholding this decision. The Board's interpretation of the Illegal Immigration Reform and Immigrant Responsibility Act receives Chevron deference. INS v. Aguirre-Aguirre, 526 U.S. 415, 424-25, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999). Its fact-based assessments of an applicant's qualifications for asylum receive deferential “substantial evidence” review. INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). And Berhane's rock-throwing was prolific (he participated in 20 such demonstrations) and dangerous (the demonstrators “probably” injured police officers, JA 279).

But the Board's two-page opinion, one paragraph of which bears on this point, raises more questions than it answers. Although the government acknowledged at oral argument that not all rock throwing amounts to a “serious nonpolitical crime,” the Board's fleeting assessment of Berhane's situation offers little explanation for why he falls on the wrong side of the rock-throwing line. And although the Board's definition of a “serious nonpolitical crime” is well established (whether the criminal nature of the conduct outweighs its political motives), the Board and the courts of appeals have not issued any decisions (to our knowledge) in which rock throwing was the principal criminal act. For these reasons and those elaborated below, we vacate the Board's decision and remand the matter to the Board for further consideration and further explanation of its position.

I.

Ethiopia held contested parliamentary elections in May 2005. Before the elections, Berhane and his brother joined a prominent government-opposition group, the Coalition for Unity and Democracy. Spurred by the Coalition's mission to reduce executive-branch authority and “promote democratization and human rights,” JA 201, Berhane taught others about the group and recruited new members to the cause.

The Coalition's political agitation increased after the parliamentary elections. Refusing to accept what they perceived as fraudulent election results, Coalition members participated in a series of street protests. In response, according to the State Department's country report, police shot and killed protestors from June 6 through June 8. Between November 1 and November 7, the report adds, police forces opened fire on demonstrators who were throwing rocks and who may have had machetes and grenades. Berhane joined more than 20 post-election street demonstrations to “fight[ ] [for] ... power and democracy and justice ... [in] Ethiopia,” JA 74, 76, though the record does not indicate whether he attended any of the protests mentioned in the country report.

Soon after the election, the Ethiopian government arrested many Coalition members, including Berhane's brother, whom the police arrested in February 2006 and whom his family has not seen since. After his brother's arrest, Berhane fled the country, and soon thereafter the police arrested Berhane's father.

In March 2006, Berhane illegally entered the United States through Mexico. When the Department of Homeland Security caught up with him, it ordered him to appear at a removal proceeding. Conceding removability, Berhane filed for asylum, withholding of removal and protection under the Convention Against Torture. Berhane asked for asylum on the basis of political opinion, claiming that he feared harm if he returned to Ethiopia due to his prior involvement in the Coalition.

During his hearing before an Immigration Judge, Berhane admitted that he threw rocks at police and their vehicles during street protests. He also used rocks to set up barricades on the streets, which kept police vehicles away from the demonstrations. Others protesting alongside Berhane set tires on fire and may have had grenades, though Berhane denied taking part in these more violent activities. When asked whether his rock throwing was the reason the police wanted to arrest him, Berhane agreed that it could be one reason, but he also thought that they wanted him because he “participat[ed] in the neighborhood and recruit[ed] members of [the Coalition].” JA 76.

The Immigration Judge denied Berhane's petition. Although the IJ expressed doubt about Berhane's credibility, he ultimately did not make an adverse credibility finding. “The larger concern,” the IJ concluded, was that Berhane had thrown rocks at police, JA 210, which amounted to a “serious nonpolitical crime” and which made Berhane statutorily ineligible for asylum and withholding of removal. See 8 U.S.C. §§ 1158(b)(2)(A)(iii), 1231(b)(3)(B)(iii). The IJ also denied Berhane's claim under the Convention Against Torture.

The Board of Immigration Appeals affirmed, agreeing that Berhane had committed a “serious nonpolitical crime,” which barred him from receiving asylum or withholding of removal. It also rejected Berhane's claim under the Torture Convention. In his petition for review, Berhane contests only the Board's conclusion that he committed a “serious nonpolitical crime.”

II.

Although neither party challenges our authority to consider Berhane's petition, we have an “independent obligation” to ensure jurisdiction before pressing forward. Hertz Corp. v. Friend, --- U.S. ----, 130 S.Ct. 1181, 1193, --- L.Ed.2d ---- (2010). Congress has removed some immigration decisions of the Attorney General from our jurisdiction-generally those “specified under [8 U.S.C. §§ 1151-1381] to be in the discretion of the Attorney General.” 8 U.S.C. § 1252(a)(2)(B)(ii). Section 1158(b)(2)(A), the first provision at issue, says that an alien is ineligible for asylum if “the Attorney General determines that ... there are serious reasons for believing that,” prior to arriving in the United States, “the alien ... committed a serious nonpolitical crime.” Id. § 1158(b)(2)(A) (emphasis added). The second provision at issue, § 1231(b)(3)(B), which speaks to the availability of withholding of removal, says that an alien is ineligible for relief if “the Attorney General decides ” he committed a serious nonpolitical crime (emphasis added). The question is: Does the Attorney General's “determin[ation]” or “deci[sion]” that an act is a serious nonpolitical crime amount to an act of “discretion,” eliminating our authority to review the decision?

We think not. The reach of the Act's jurisdiction-stripping provision extends only to those decisions “specified” by statute “to be in the [Attorney General's] discretion.” 8 U.S.C. § 1252(a)(2)(B)(ii). To “specify” that a decision belongs to the Attorney General's discretion requires more than a hint. “ ‘[S]pecify’ means to ‘name or state explicitly or in detail.’ ” Kucana v. Holder, --- U.S. ----, 130 S.Ct. 827, 834 n. 10, --- L.Ed.2d ---- (2010) (quoting Webster's New Collegiate Dictionary 1116 (1974)). And §§ 1158(b)(2)(A) and 1231(b)(3)(B) contain no such designation.

The sections, it is true, say that whether an alien committed a serious nonpolitical crime is something the Attorney General “determines,” 8 U.S.C. § 1158(b)(2)(A), and “decides,” id. § 1231(b)(3)(B). But empowering the Attorney General to “determine[ ]” (or for that matter “decide [ ]”) something no more “specif[ies]” “discretion” than empowering the Attorney General to exercise any number of responsibilities under the Act, be they interpretations of the Act, adjudications under the Act, the adoption of rules under the Act or anything else that might count as an administrative “determination” under the Act. No doubt the courts give broad deference to the Attorney General in each of these areas-deference that in turn allows the Attorney General to exercise considerable discretion. See Aguirre-Aguirre, 526 U.S. at 424-25, 119 S.Ct. 1439. But just because the courts give the Attorney General broad discretion in an area does not mean that Congress has “specif[ically]” committed the area to the Attorney General's discretion. Otherwise, our lack of authority to review some immigration decisions of the Attorney General would become the unyielding rule. If “ ‘discretion’... mean [t] nothing more than the application of facts to principles” or any of these other traditional actions of the Attorney General, it would be difficult to envision “any action by the Attorney General” that would not get caught in the jurisdiction-stripping provision's orbit. Soltane v. Dep't. of Justice, 381 F.3d 143, 148 n. 3 (3d Cir.2004) (internal quotations omitted). That is not what Congress had in mind. See Alaka v. Att'y Gen. of the U.S., 456 F.3d 88, 96 (3d Cir.2006) (the Attorney General's authority to “decide” whether an alien committed a “particularly serious crime,” 8 U.S.C. §§ 1158(b)(2)(A)(ii), 1242(b)(3)(B)(ii), is not a...