Birhanu v. Wilkinson, 19-9599

• Decision Date: 09 March 2021
• Docket Number: No. 19-9599,19-9599
• Citation: 990 F.3d 1242
• Parties: Thewodros Wolie BIRHANU, a/k/a Thewodros Birhanu, Petitioner, v. Robert M. WILKINSON, Acting Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

990 F.3d 1242

Thewodros Wolie BIRHANU, a/k/a Thewodros Birhanu, Petitioner,

v.Robert M. WILKINSON,^* Acting Attorney General of the United States, Respondent.

No. 19-9599

United States Court of Appeals, Tenth Circuit.

FILED March 9, 2021

Tania N. Valdez (Christopher N. Lasch, with her on the briefs), University of Denver Sturm College of Law, Immigration Law & Policy Clinic, Denver, Colorado, appearing for Petitioner.

Vanessa M. Otero, Trial Attorney, Office of Immigration Litigation (Joseph H. Hunt, Assistant Attorney General, Civil Division, and Anthony P. Nicastro, Assistant Director, Office of Immigration Litigation, with her on the brief), United States Department of Justice, Washington, DC, appearing for Respondent.

Before TYMKOVICH, Chief Judge, BRISCOE, and BACHARACH, Circuit Judges.

BRISCOE, Circuit Judge.

Thewodros Wolie Birhanu petitions for review of a final order of removal issued by the Board of Immigration Appeals ("BIA"). The BIA dismissed Mr. Birhanu's appeal from the decision of the Immigration Judge ("IJ") finding him removable. The BIA and the IJ ruled that Mr. Birhanu was removable as an alien convicted of two or more crimes involving moral turpitude ("CIMTs") not arising out of a single scheme of criminal misconduct, that he was not entitled to asylum or withholding of removal because his convictions qualified as particularly serious crimes, and that he was not entitled to relief under the Convention Against Torture ("CAT"). Exercising jurisdiction under 8 U.S.C. § 1252(a), we dismiss his claims under Section 504 of the Rehabilitation Act as unexhausted and deny the balance of his petition for review on the merits.

I

Mr. Birhanu is a citizen of Ethiopia. In 2007, he was admitted to the United States as a lawful permanent resident. Mr. Birhanu also has a history of paranoid schizophrenia. Although the record is unclear, Mr. Birhanu may have had his first psychotic break as early as 1999, while living in Ethiopia. See AR at 988; but see AR at 135 (Mr. Birhanu testifying he first noticed his symptoms in 2007). After receiving lawful permanent resident status, Mr. Birhanu visited Ethiopia on at least two occasions. Both times, Mr. Birhanu's family sent Mr. Birhanu to a church for "holy water treatment" for his mental illness. Both times, Mr. Birhanu was physically and mentally abused, including being bound, hit, and isolated. Mr. Birhanu was also struck by Ethiopian police when he sought help. When residing in the United States, Mr. Birhanu is able to manage his illness with prescription medication. He is unable to receive similar care in Ethiopia, however, where there is only one mental hospital and where his prescription medication is unavailable.

In December 2016, Mr. Birhanu suffered a psychotic episode. At the time, Mr. Birhanu was a student at Weber State University. During this episode, on December 21, Mr. Birhanu made threatening comments before entering a university administration building, placing the university community in fear for their lives. In response, the university was forced to lock down the building. On December 24, Mr. Birhanu sent a threatening email to a university employee, stating he would kill and dismember people should the university not meet his demands. Both instances occurred during the same psychotic episode, and both were precipitated by Mr. Birhanu's ongoing dispute with the university over separate student code charges.

Mr. Birhanu was arrested and charged in the Second Judicial District Court of Weber County, Utah, with making threats of terrorism in violation of Utah Code Ann. § 76-5-107.3(1)(b)(ii), a third-degree felony. The state court initially found Mr. Birhanu not competent to stand trial, but later found him restored to competency after treatment at a state hospital. Mr. Birhanu subsequently pled "guilty but mentally ill" to two counts of making threats of terrorism. AR at 942. The state court sentenced Mr. Birhanu to an indeterminate term not exceeding five years, suspended his sentence, and credited him for 596 days previously served. Id. at 946.

After Mr. Birhanu's release from state custody for his state court convictions, the Department of Homeland Security initiated removal proceedings against him, alleging he was removable as an alien "convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct," pursuant to 8 U.S.C. § 1227(a)(2)(A)(ii). AR at 1039. Mr. Birhanu appeared pro se before the IJ. The IJ held a competency hearing, during which the IJ questioned Mr. Birhanu, but did not appoint counsel or order an expert psychiatric evaluation. Upon being satisfied after its inquiries, the IJ found Mr. Birhanu competent to proceed. The IJ subsequently ordered Mr. Birhanu removable as an alien convicted of two CIMTs not arising from a single scheme of criminal misconduct. In a separate order, the IJ also denied Mr. Birhanu's requests for asylum, withholding of removal, and protection under the CAT. As regards his requests for asylum and withholding of removal, the IJ ruled he was ineligible for relief because he had been convicted of a particularly serious crime. The IJ noted Mr. Birhanu's mental health was considered by the criminal court, but the criminal court determined he was guilty of making threats of terrorism and his mental health did not exculpate him.

Mr. Birhanu appealed the IJ's orders to the BIA. The BIA, acting through a single commissioner, affirmed the IJ. Mr. Birhanu has filed a timely petition for review with this court.

II

We have jurisdiction under 8 U.S.C. § 1252(a) because the BIA's order denying relief from removal is an appealable final order of removal. Sosa-Valenzuela v. Holder , 692 F.3d 1103, 1108 (10th Cir. 2012). Our review of a final order of removal is limited to constitutional claims or questions of law because eligibility for relief from removal is ordinarily an unreviewable matter of discretion under 8 U.S.C. § 1252(a)(2)(C) & (D). Id. at 1108–09. We therefore review the BIA's legal determinations de novo, but we do not ordinarily review its exercise of discretion. Id. at 1109.

In contrast, denial of CAT relief is not a "final order of removal"; thus, a CAT order is reviewed for substantial evidence. Nasrallah v. Barr, ––– U.S. ––––, 140 S. Ct. 1683, 1688, 207 L.Ed.2d 111 (2020). Under the substantial evidence standard, "[t]he agency's findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary." Id. at 1692.

III

Mr. Birhanu presents four arguments in his petition for review: 1) the IJ denied him due process "by requiring him to proceed pro se in immigration court without procedures adequate to assure his competency." Pet'r’s Br. at 9; 2) the BIA erred in concluding that his convictions were CIMTs not arising out of a single scheme of misconduct. Id. at 15, 18; 3) the BIA acted arbitrarily and capriciously in refusing to consider his mental health in its "particularly serious crime" determination. Id. at 21; and 4) the BIA failed to consider evidence in support of his application for CAT relief. Id. at 27.

A. Safeguards to Assure Competency

1. Fundamental Due Process

As a preliminary matter, Mr. Birhanu's challenge to the IJ's competency proceedings are reviewable by this court. To be clear, Mr. Birhanu does not challenge the competency finding , but rather he contends "[t]he competency hearing was constitutionally deficient ...." Pet'r’s Reply at 19 (emphasis added); see also Pet'r’s Br. at 9 (asserting the competency hearing lacked "procedures adequate to assure his competency"). This court has jurisdiction to review whether "removal proceedings violated [a petitioner's] Fifth Amendment due process rights because he [was] mentally incompetent." Brue v. Gonzales , 464 F.3d 1227, 1231 (10th Cir. 2006). Accordingly, we consider Mr. Birhanu's petition to the extent he challenges the safeguards implemented by the IJ, as opposed to the IJ's final competency findings.

The IJ's competency proceedings did not violate Mr. Birhanu's due process rights. "An alien in removal proceedings is entitled only to the Fifth Amendment guarantee of fundamental fairness." Schroeck v. Gonzales, 429 F.3d 947, 952 (10th Cir. 2005). Thus, an alien facing removal is entitled "only to procedural due process, which provides the opportunity to be heard at a meaningful time and in a meaningful manner." Brue, 464 F.3d at 1233 (quoting Schroeck , 429 F.3d at 952 ). "[A]n allegation of wholesale failure to consider evidence implicates due process," and is thus within our jurisdiction to review. Alzainati v. Holder , 568 F.3d 844, 851 (10th Cir. 2009). In contrast, "a quarrel about the level of detail required in the BIA's analysis" does not implicate due process and thus lies beyond our jurisdiction. Id. Further, "[t]o prevail on a due process claim, an alien must establish not only error, but prejudice." Id.

Our cases do not articulate what precisely an IJ must do to assure itself of an alien's competency. In Brue, we recognized that "the statute [ 8 U.S.C. § 1229a(b)(3) ] and the regulation [ 8 C.F.R. § 1240.4 ] facially appear to require no procedural safeguards if an unrepresented, mentally incompetent alien is nevertheless able to be present at his removal proceeding." 464 F.3d at 1233 (emphasis added). But in that case we declined to define what procedural safeguards the Fifth Amendment requires because Mr. Brue was represented by counsel. We concluded the fact that he was represented cured any potential due process violation. By contrast, Mr. Birhanu appeared pro se at his removal hearing.

In Matter of M-A-M- , the BIA described a number of measures an IJ may take to assess an alien's competency. 25 I. & N. Dec. 474, 480–81 (BIA 2011). One such measure would be to modify the questions posed by an immigration judge, such as including "questions about where the hearing is taking place, the nature of the proceedings, and the [alien's] state of mind." Id. at...