Harmon v. Holder

• Decision Date: 10 July 2014
• Docket Number: Nos. 12–3268,12–4173.,s. 12–3268
• Citation: 758 F.3d 728
• Parties: Ethel HARMON, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

758 F.3d 728

Ethel HARMON, Petitioner,

v.Eric H. HOLDER, Jr., Attorney General, Respondent.

Nos. 12–3268, 12–4173.

United States Court of Appeals, Sixth Circuit.

Argued: Dec. 4, 2013.

Decided and Filed: July 10, 2014.

ARGUED:Maris J. Liss, George P. Mann & Associates, Farmington Hills, Michigan, for Petitioner. Kelly J. Walls, United States Department of Justice, Washington, DC, for Respondent. ON BRIEF:Maris J. Liss, George P. Mann, George P. Mann & Associates, Farmington Hills, Michigan, for Petitioner. Kelly J. Walls, United States Department of Justice, Washington, D.C., for Respondent. Stephen W. Manning, Immigrant Law Group PC, Portland, Oregon, Russell Abrutyn, Marshal E. Hyman & Associates, PC, Troy, Michigan, for Amicus Curiae.

Before: COOK and STRANCH, Circuit Judges; CARR, District Judge. ^*

OPINION

STRANCH, Circuit Judge.

Ethel Harmon, an adult who entered the United States as an unaccompanied alien child in 1994, was denied asylum, withholding of removal, and protection under the Convention Against Torture. Harmon argues that the Immigration Judge did not have jurisdiction over her asylum claim, that the William Wilberforce Trafficking Victims Protection Reauthorization Act (TVPRA) permanently exempts former unaccompanied alien children from the one-year filing deadline for asylum applications, and that the BIA erred by denying her claims on the merits. For the reasons that follow, we DENY Harmon's motion to remand on jurisdictional grounds, and we DENY Harmon's petition for review.

I. Background

Ethel Harmon was born in Liberia in 1984, a few years before the start of the Liberian Civil War. Harmon was separated from her parents when she was roughly four-years-old, and afterward lived with several different family members and others. She testified that she recently got in touch with her brother Clarence who told her that around 1989 Clarence and their mother were captured by a rebel group and Clarence witnessed her rape and the assault that resulted in her death. Clarence also told Harmon that their father had been killed by a rebel group because they suspected him of being involved with the Liberian government.

Harmon recalls running from one village to another and being caught by a rebel group who separated her from her caretakers and threatened to kill her if she did not remain still. She saw another girl shot while attempting to flee. Harmon reports that during this transient period, she was repeatedly sexually molested and raped by her caretakers, by male visitors, and once by a stranger who entered her home while she and a relative fled the war. Harmon did not disclose the sexual assaults to anyone until she was older, and she has been unable to get her family members to discuss past trauma.

In 1992, Harmon's aunt, Meg Barroar, came to Liberia and took Harmon with her to the Liberian embassy in Gambia, where Barroar worked. Harmon lived with her aunt for two years until, when she was ten-years-old, her aunt brought her to the United States on a visitor's visa that would expire in 1995. Barroar took Harmon to live with Harmon's brother Herbert in Maryland. There Harmon remained for some time. She now has no family or connections in Liberia.

Harmon turned eighteen on May 15, 2002. In early 2003, Herbert assisted her in applying for Temporary Protected Status (TPS) from the United States Citizenship and Immigration Service (USCIS), which was approved. Herbert filed a second application on Harmon's behalf in 2004, and this, too, was approved. When Harmon turned 19, she left Herbert's home, and was less successful without his assistance. She missed the TPS deadline while trying to collect money for the application fee, had her next application denied, and mistakenly sent her appeal to the wrong address.

In 2007, when she was twenty-three-years-old, Harmon tried to enter Canada because she had heard that she could get refugee protection, but she was waylaid on the border by Immigration and Customs Enforcement (ICE). Soon afterward, she received notice that she was removable under the Immigration and Nationality Act (INA) § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B) (2012), for remaining in the United States longer than permitted. She appeared before the immigration court for removal proceedings and filed defensive applications for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). The Immigration Judge (IJ) denied these on the merits, approved the previous denial of TPS, and ordered Harmon to be removed to Liberia.

In 2012, the Board of Immigration Appeals (BIA) dismissed Harmon's appeal and denied her motion to terminate proceedings and remand to the USCIS for initial review of her asylum application. Harmon moved to reopen her case, again seeking to terminate proceedings and remand to the USCIS, this time citing a recent Sixth Circuit order sending an asylum application for a forty-year-old former unaccompanied minor to the USCIS for initial review. The BIA construed the motion as a motion to reconsider and denied it as untimely and for failing to establish a legal or factual error in the original decision.

Harmon now appeals the BIA's denial of her motion to reopen and terminate proceedings and moves for a remand to the USCIS on jurisdictional grounds. She also appeals the BIA's conclusion that she is bound by the one-year filing deadline for asylum applications as well as its denial of her underlying asylum, withholding of removal, and CAT claims on the merits. We consolidate review of a motion to reopen or reconsider with review of a removal order. 8 U.S.C. § 1252(b)(6).

The Government informs the court that while this appeal was pending, Harmon successfully entered Canada and applied for the Canadian equivalent of lawful permanent resident status. While this information is not found in the administrative record, Harmon does not dispute it.

II. Our Jurisdiction and the Standard of Review

This court has jurisdiction, under 8 U.S.C. § 1252, to review the BIA's final determination regarding an order of removal. Umana–Ramos v. Holder, 724 F.3d 667, 670 (6th Cir.2013). Where, as here, the BIA issues its own decision rather than summarily affirming the IJ, the BIA decision is reviewed as the final agency decision, but the IJ's decision is also reviewed to the extent that the BIA adopted it. Khalili v. Holder, 557 F.3d 429, 435 (6th Cir.2009). The factual findings of the BIA are reviewed under the highly deferential substantial-evidence standard. Id. “Under this standard, we will not reverse a factual determination ... unless we find that the evidence not only supports a contrary conclusion, but compels it.” Ceraj v. Mukasey, 511 F.3d 583, 588 (6th Cir.2007) (internal quotation marks omitted); see also8 U.S.C. § 1252(b)(4)(B). We review the legal conclusions of the BIA de novo, first asking whether the immigration statute is clear; if it is silent or ambiguous, we give deference to the agency's reasonable interpretation.¹Flores v. U.S. Citizenship & Immigration Servs., 718 F.3d 548, 551 (6th Cir.2013); see also Umana–Ramos, 724 F.3d at 670; 8 U.S.C. § 1252(b)(4)(D) (granting authority to reverse a removal order where the decision is manifestly contrary to law or an abuse of discretion). Harmon's appeal of the BIA's denial of her motion to reopen proceedings is reviewed for abuse of discretion, Liu v. Holder, 560 F.3d 485, 489 (6th Cir.2009), but an error of law is always abuse of discretion. See, e.g., Serrano v. Cintas Corp., 699 F.3d 884, 902 (6th Cir.2012).

III. Mootness

We first briefly address the Government's contention that Harmon's appeal has become moot because she went to Canada and applied for permanent Canadian status while this appeal was pending. Appeals from removal orders are reviewed based only on the facts found in the administrative record, 8 U.S.C. § 1252(b)(4)(A), which contains nothing about Harmon's status in Canada other than the Government's statement. Nevertheless, Harmon admits that she went to Canada “in compliance with an order of removal.”

Mootness doctrine arises from the Article III requirement that courts may only consider a live controversy. The Government, as the party seeking mootness, bears a heavy burden to demonstrate that it applies here. L.A. Cnty. v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979). “[A] case is moot when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Id. (internal quotation marks omitted). Harmon has a cognizable interest that defeats mootness, if she “suffered, or [is] threatened with, an actual injury traceable to” the Government and if the injury “is likely to be redressed by a favorable judicial decision.” Lewis v. Cont'l Bank Corp., 494 U.S. 472, 477, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990).

Harmon's appeal is not moot. She has suffered an injury—the removal order—that could be redressed by an outcome vacating the removal order or giving her protected status with entry privileges. To the extent that Harmon removed herself pursuant to the removal order, the “removal of an alien does not moot a pending appeal” because the alien continues to suffer an ongoing injury in the form of the five-year restriction on re-entry. Garcia–Flores v. Gonzales, 477 F.3d 439, 441 n. 1 (6th Cir.2007); see also8 U.S.C. § 1182(a)(9)(A)(i). The Government cites cases dealing with aliens who failed to appear at removal proceedings, suggesting that Harmon, like those petitioners, has mooted her claim by ensuring that an adverse judgment cannot be enforced against her. Garcia–Flores, 477 F.3d at 440–42. This suggestion is misplaced. Harmon is not a “fugitive” like the alien in Garcia–Flores who chose to stay in the United States while avoiding authorities; she left the country, as ordered, but continues to pursue her rights through the authorities. The Government has cited no case suggesting that removal may only occur on the Government's...