Hakim v. Holder

• Decision Date: 09 July 2010
• Docket Number: No. 09-1692.,09-1692.
• Citation: 611 F.3d 73
• Parties: Johannes HAKIM, Petitioner,v.Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — First Circuit

611 F.3d 73

Johannes HAKIM, Petitioner,v.Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.

No. 09-1692.

United States Court of Appeals, First Circuit.

Heard Feb. 1, 2010.

Decided July 9, 2010.

Randall A. Drew, with whom Wiggin & Nourie, P.A., were on brief for petitioner.

Greg D. Mack, Senior Litigation Counsel, U.S. Department of Justice, Civil Division, Office of Immigration Litigation, with whom Tony West, Assistant Attorney General, Civil Division, and Terri J. Scadron, Assistant Director, were on brief for respondent.

Before TORRUELLA, Circuit Judge, SOUTER,^* Associate Justice, and STAHL, Circuit Judge.

TORRUELLA, Circuit Judge.

Johannes Hakim (“Hakim”) seeks review of the decision of the Board of Immigration Appeals (“BIA”) reversing the grant of applications for asylum under Section 208 of the Immigration and Nationality Act (“INA”) and for withholding of removal under Section 241(b)(3) of the INA. Hakim contends that the BIA erred when it determined that evidence of mistreatment he experienced in his native Indonesia failed to rise to the level of persecution within the meaning of the immigration laws. The government counters that we lack jurisdiction because we have not been presented with a final order of removal, and, in the alternative, that the Attorney General's issuance of a final rule on voluntary departure militates in favor of not finding a final order of removal. After careful consideration, we decline for prudential reasons to exercise jurisdiction in this case. Hakim's petition is thus dismissed without prejudice.

I. Background

A. Facts¹

Hakim is an Indonesian citizen of Chinese ethnicity and Christian faith. In February of 1996, Hakim, who was fourteen years old at the time, was attacked by “a group of people” who identified him as Chinese and robbed him. One of the men struck Hakim with a block of wood, breaking his hand. Neither he nor his parents reported the incident to the police, considering it a “waste” to file a report because the police would see that they were Chinese and would probably then ask them for money. Although Hakim testified as to other events, the February 1996 incident was, according to him, “the worst thing that happened” to him.

Hakim left Indonesia in 2001 and, the following year, applied for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”).

B. Procedural History

Hakim left Indonesia on September 26, 2001. The next day he was admitted to the United States as a nonimmigrant B2 Visitor for Pleasure with authorization to remain in the United States for a temporary period not to exceed March 24, 2002. He overstayed, and on September 24, 2002, Hakim submitted applications for asylum, withholding of removal, and protection under the CAT to the Immigration and Naturalization Service (“INS”). Hakim's application was referred to the Immigration Court in Boston, Massachusetts.

On August 5, 2004, the Department of Homeland Security (“DHS”) commenced removal proceedings against Hakim by filing a Notice to Appear (“NTA”) with the Immigration Court alleging he had remained in the United States after March 24, 2002, without authorization, and was subject to removal. See 8 U.S.C. § 1227(a)(1)(B). Hakim admitted the allegations contained in the NTA, conceded that he was removable, and renewed his requests for asylum, withholding of removal, and protection under the CAT.

Hakim testified before the IJ on August 3, 2006, and, on February 5, 2007, the IJ issued a decision granting his applications for asylum and withholding of removal. The IJ concluded that the evidence presented by Hakim warranted a finding that he suffered past persecution in Indonesia. Given the finding of past persecution and the DHS's inability to provide evidence that conditions in Indonesia had changed, the IJ held that the government had failed to meet its burden of proving that Hakim's fears of future persecution were not well-founded. See 8 C.F.R. § 208.13(b)(1) (stating that once the applicant has demonstrated past persecution, DHS has the burden of establishing by a preponderance of the evidence either “a fundamental change in circumstances” or the possibility of internal relocation). However, because Hakim “failed to establish he would be detained and subject to torture or that the government of Indonesia would acquiesce in that harm being inflicted upon him[,]” the IJ denied him protection under the CAT.

The government appealed to the BIA, which issued an opinion on April 24, 2009, reversing the IJ's grant of applications for asylum and for withholding of removal. The BIA rejected the IJ's conclusion that Hakim had established that he was a victim of past persecution. The BIA explained that the mistreatment inflicted on Hakim in the February 1996 robbery was “reprehensible,” but fell “outside the scope of the type of mistreatment considered to be persecution,” and that “the other incidents of which he complained were [not] sufficiently severe, either cumulatively or in isolation, [nor] sufficiently related to an enumerated ground, to constitute persecution.” ²

Concluding that Hakim had failed to establish past persecution, the BIA disagreed with the IJ's conclusion that he should benefit from a presumption of future persecution. The BIA found that Hakim “did not persuasively articulate any specific basis on which he would be likely to be singled out for persecution[,]” and there was insufficient evidence “to support a conclusion that there is a pattern and practice of persecution against Christians or ethnically Chinese individuals in Indonesia.” See also Decky, 587 F.3d at 113 (“We have repeatedly affirmed the BIA's determinations ... that there is no ongoing pattern or practice of persecution against ethnic Chinese or Christians in Indonesia.”) (citation omitted). The BIA also held that Hakim failed to present evidence demonstrating that he would not be able to relocate to another part of Indonesia. Given these determinations, the BIA concluded that Hakim failed to prove that he should be granted asylum, and thus the more stringent withholding of removal. As the IJ had not considered whether Hakim was eligible for voluntary departure, the BIA remanded the case to the IJ to make such a determination.

The IJ scheduled for January 14, 2010, a hearing to determine Hakim's eligibility for voluntary departure. On December 31, 2009, Hakim filed a motion for continuance before the IJ, which was granted on January 5, 2010. The IJ thus rescheduled the hearing date for July 22, 2010. Hakim currently seeks, in this Court, reversal of the BIA's decision on the merits.

II. Discussion

A. Standard/Scope of Review

Pursuant to 8 U.S.C. § 1252(d), we have jurisdiction to review final orders of removal only if both of the following conditions are met. First, “the alien [must have] exhausted all administrative remedies available to the alien as of right.” 8 U.S.C. § 1252(d)(1); see De Araujo v. Gonzales, 457 F.3d 146, 152 (1st Cir.2006) (“This exhaustion requirement generally means that the BIA must first review an IJ's determination of [removability] before a petitioner may present his appeal to us.”) (citation omitted). Second,

another court [cannot have] decided the validity of the order, unless the reviewing court finds that the petition presents grounds that could not have been presented in the prior judicial proceedings or that the remedy provided by the prior proceeding was inadequate or ineffective to test the validity of the order.

8 U.S.C. § 1252(d)(2). That is, we lack jurisdiction to consider a petition raising arguments that a court has previously “considered and rejected” in a prior proceeding. Paul v. United States Dep't of Justice, 273 Fed.Appx. 64, 65 (2d Cir.2008); see

Gittens v. Menifee, 428 F.3d 382, 386 (2d Cir.2005) (finding that an alien's second petition for review would fail under § 1252(d)(2) when “a federal court has already ruled on the merits of his ... argument”).

The INA defines an “order of [removal]” as “the order of the special inquiry officer, or other such administrative officer to whom the Attorney General has delegated the responsibility for determining whether an alien is [removable], concluding that the alien is [removable] or ordering [removal].” ³ 8 U.S.C. § 1101(a)(47)(A) (emphasis added). Orders of removal become final upon “(i) a determination by the [BIA] affirming such an order; or (ii) the expiration of the period in which the alien is permitted to seek review of such order by the [BIA,]” whichever is earlier. 8 U.S.C. § 1101(a)(47)(B).

Without directly addressing 8 U.S.C. § 1101(a)(47), Hakim argues that the BIA's order remanding to the IJ to resolve the question of voluntary departure constitutes a final order of removal. He contends that, according to 8 U.S.C. § 1252(d)(1), we have jurisdiction because he has exhausted all administrative remedies in pursuit of his applications for asylum and withholding of removal, and another court has not decided the validity of the order. Furthermore, he contends that the only issue being considered on remand by the IJ is his eligibility for voluntary departure, not further review of his asylum or withholding of removal applications. In support of his argument, Hakim relies on a number of sister circuit cases, including Alibasic v. Mukasey, in which the Second Circuit held that “a BIA order denying relief from removal and remanding for the sole purpose of considering voluntary departure is a final order of removal that this Court has jurisdiction to review.” 547 F.3d 78, 83-84 (2d Cir.2008) (“The IJ's underlying finding of removability based on [the alien's] concessions [of removability] still stands and ... the BIA has simply removed an impediment to the removal that was ordered by the IJ.”) (internal quotation marks omitted); accord Saldarriaga v. Gonzales, 402 F.3d 461, 466 n. 2 (4th Cir.2005) (“[A] BIA order denying relief from deportation, but remanding the case...