Hassan v. Gonzales

• Decision Date: 31 March 2005
• Docket Number: No. 03-4446.,03-4446.
• Citation: 403 F.3d 429
• Parties: Harbi Mohamad Ismat HASSAN, Petitioner, v. Alberto GONZALES, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 429

403 F.3d 429

Harbi Mohamad Ismat HASSAN, Petitioner, v. Alberto GONZALES, Attorney General, Respondent.

No. 03-4446.

United States Court of Appeals, Sixth Circuit.

Argued: March 8, 2005.

Decided and Filed: March 31, 2005.

ARGUED:

David H. Paruch, Troy, Michigan, for Petitioner.

William C. Minick, U.S. Department of Justice, Office of Immigration, Washington, D.C., for Respondent.

ON BRIEF:

David H. Paruch, Troy, Michigan, for Petitioner.

William C. Minick, Linda S. Wernery, U.S. Department of Justice, Office of Immigration, Washington, D.C., for Respondent.

Before: MOORE and SUTTON, Circuit Judges; CARMAN, Judge.^*

OPINION

MOORE, Circuit Judge.

Petitioner Harbi Mohamad Ismat Hassan ("Hassan") seeks review of a final order from the Board of Immigration Appeals ("BIA") affirming the Immigration Judge's decision to deny Hassan's claims for asylum and withholding of removal under the Immigration and Nationality Act ("INA") and relief under the Convention Against Torture ("CAT").¹ In his petition, Hassan asserts that the Immigration Judge ("IJ") erred on several grounds. Moreover, Hassan argues that the BIA improperly applied its streamlining regulations in affirming the IJ's decision without opinion. Upon review, we conclude that none of Hassan's arguments are persuasive, and therefore we DENY the petition for review.

I. BACKGROUND

Hassan is a twenty-six-year-old Palestinian who is a native of Lebanon. He was born and raised in the Palestinian refugee camp located in Said, Lebanon. He lived in the camp with his family, including his parents, six brothers, and three sisters. At his removal hearing, Hassan testified that while living in the refugee camp, he joined Hamas, which he claims is commonly known in the United States as the Palestine Liberation Organization ("PLO"). Hassan explained that he joined "because [his] financial situation was very bad" and the PLO paid for his college tuition. Joint Appendix ("J.A.") at 89, 69 (Removal Hr'g Tr. at 45, 25). As a member of the PLO, Hassan worked as a driver and message courier. He stated that he "never carried weapons." J.A. at 70 (Removal Hr'g Tr. at 26).

During his time in the refugee camp, Hassan was approached by a radical and more violent organization, known as Sabri Al Bamma.² Pet. Br. at 6. Hassan testified that the group was "organizing young men that were between the ages of 21 and 22 so they could be active with operations that were against the peace movement, like having the demonstrations and they wanted to train [him] to use weapons." J.A. at 72 (Removal Hr'g Tr. at 28). After he refused to join the group, Hassan asserts that members of Sabri Al Bamma threatened his life. Specifically, Hassan explained that Sabri Al Bamma had murdered a high-ranking PLO official, for whom Hassan worked, and the official's wife. A member of Sabri Al Bamma referred to the murder of the PLO official and told Hassan "you are not as important as the guy that was in charge, so if you refuse to join with us, what happened to him will happen to you." J.A. at 75 (Removal Hr'g Tr. at 31). Shortly thereafter, a company came to Hassan's school and offered him an opportunity to leave Lebanon and come work in the United States. Hassan paid for the trip by using money from a communal neighborhood fund. Hassan testified that he did not tell his neighbors that he was coming to the United States, but instead told them that he needed the money for school because "the expenses were very high in Beirut." J.A. at 101 (Removal Hr'g Tr. at 57).

On July 6, 2000, Hassan was admitted into the United States as a nonimmigrant exchange visitor authorized to stay until October 5, 2000. On February 5, 2002, the Immigration and Naturalization Service ("INS") served Hassan with a Notice to Appear, charging him with being present in the United States without being admitted or paroled, in violation of § 237(a)(1)(B) of the INA, 8 U.S.C. § 1227(a)(1)(B). At the removal hearing, Hassan conceded his unlawful status, but requested asylum, withholding of removal, and relief under CAT. In support of his request, Hassan asserted that Sabri Al Bamma was still looking for him and if he were ever to return to Lebanon, he would be killed. On July 3, 2002, the IJ heard Hassan's claims and denied his request. Specifically, the IJ found Hassan's testimony to be incredible based on several inconsistencies between his testimony, the asylum application, and the documents he submitted as evidence. Moreover, the IJ held that, even if the testimony was credible, Hassan would not be entitled to relief because "being wanted by a terrorist group in Lebanon" is not "protected by the asylum laws of the country and it certainly doesn't provide a basis for seeking withholding pursuant to the Torture Convention." J.A. at 39 (IJ Decision & Order at 22). Hassan filed a timely notice of appeal to the BIA setting forth his reasons and indicating he would file a separate written brief.³ Despite receiving an extension of the deadline, Hassan's brief was not filed timely, and therefore was not considered by the BIA. J.A. at 5 (BIA Rejection of Brief). On October 9, 2003, the BIA affirmed the IJ's decision without opinion pursuant to 8 C.F.R. § 1003.1(e)(4). Hassan now petitions this court for review of the denial of his asylum, withholding of removal, and CAT claims.

II. ANALYSIS

A. Appellate Jurisdiction

Before proceeding to the merits of Hassan's claims, we must first address this court's jurisdiction to entertain his petition for review. Pursuant to § 242(a)(1) of the INA, we have jurisdiction to review the BIA's decision affirming an IJ's denial of asylum, withholding of removal, and relief under CAT. INA § 242(a)(1); 8 U.S.C. § 1252(a)(1). Section 242(d)(1) states, however, that "[a] court may review a final order of removal only if ... the alien has exhausted all administrative remedies available to the alien as of right." INA § 242(d)(1); 8 U.S.C. § 1252(d)(1). We have stated that this requirement is jurisdictional, and thus where a petitioner has failed to exhaust his administrative remedies, "a federal court is without jurisdiction to consider his petition for review." Perkovic v. INS, 33 F.3d 615, 619 (6th Cir.1994).⁴ The Government argues in its brief that we lack jurisdiction over Hassan's petition for review of the IJ's decision because Hassan failed to file timely his brief with the BIA, and therefore did not exhaust all administrative remedies. Because the BIA affirmed the IJ's decision without opinion rather than summarily dismissing Hassan's appeal, we conclude the Government's argument is unconvincing.

It is well established that the BIA "may summarily dismiss any appeal or portion of any appeal in any case in which ... [t]he party concerned fails to specify the reasons for the appeal on [the notices of appeal] or other document filed therewith." 8 C.F.R. § 1003.1(d)(2)(i)(A). The purpose of the rule is to ensure that the alien "provide meaningful guidance to the BIA by informing the BIA of the precise issues contested on appeal. This specificity requirement may be satisfied in one of two ways: by setting out the reasons on the Notice of Appeal itself or by filing a separate brief." Garcia-Cortez v. Ashcroft, 366 F.3d 749, 752 (9th Cir.2004) (internal quotation omitted) (emphasis added). The alien is not required to file a separate written brief, but instead may rely entirely upon the factual or legal basis stated in the notice of appeal.⁵ Where the BIA has dismissed an appeal for failure to satisfy the specificity requirement, administrative remedies are unexhausted and a court has no jurisdiction to review the IJ's decision. Sswajje v. Ashcroft, 350 F.3d 528, 532 (6th Cir.2003).

In this case, Hassan timely filed a notice of appeal to the BIA from the IJ's decision, which outlined five specific grounds. See supra note 3. He then filed an untimely brief in support of his appeal. The BIA did not take the brief into consideration, but affirmed the IJ's decision without opinion under § 1003.1(e)(4). The streamlined-affirmance-without-opinion procedure is not a dismissal, but instead a review of the merits of an appeal. See Denko v. INS, 351 F.3d 717, 729 (6th Cir.2003) (noting that affirmance-without-opinion cases receive full consideration from the BIA). By affirming the IJ's decision without opinion under § 1003.1(e)(4) rather than summarily dismissing it under § 1003.1(d)(2)(A), the BIA found that Hassan had satisfied the specificity requirement through his notice of appeal. Furthermore, the five grounds outlined in his notice of appeal to the BIA are the same arguments presented in his petition to this court. Therefore, because the BIA reached the merits of Hassan's appeal, we conclude that he properly exhausted all of his administrative remedies, and thus we have jurisdiction to entertain his petition for review.

B. The IJ's Decision

Proceeding to the merits of Hassan's claims, we note that because the BIA affirmed the IJ's decision without opinion, "we review the IJ's decision as the final agency decision." Denko, 351 F.3d at 726.

1. Adverse Credibility Finding

The first issue which Hassan raises in his petition is that the IJ erred in denying his request for asylum, withholding of removal, and relief under CAT on the grounds that his testimony was incredible. We have held that "[c]redibility determinations are considered findings of fact, and are reviewed under the substantial evidence standard." Sylla v. INS, 388 F.3d 924, 925 (6th Cir.2004). Under that standard, findings of fact are treated as "`conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.'" Yu v. Ashcroft, 364 F.3d 700, 702 (6th Cir.2004) (quoting 8 U.S.C. § 1252(b)(4)(B)). In this case, we cannot say that review of the record compels a contrary result.

The Attorney General may grant asylum to an alien who can demonstrate an unwillingness to return to his or her home country "because...