Karim v. Mukasey, No. 07-1981 (1st Cir. 3/13/2008)

• Decision Date: 13 March 2008
• Docket Number: No. 07-1981.,07-1981.
• Parties: MUSA KARIM, Petitioner, v. MICHAEL MUKASEY, ATTORNEY GENERAL, Respondent.
• Court: U.S. Court of Appeals — First Circuit

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MUSA KARIM, Petitioner, v. MICHAEL MUKASEY, ATTORNEY GENERAL, Respondent.

No. 07-1981.

United States Court of Appeals, First Circuit.

March 13, 2008

ON PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS.

Musa Karim on brief pro se.

Corey L. Farrell, Attorney, Department of Justice, Civil Division, Terri J. Scadron, Assistant Director, and Jeffrey S. Bucholtz, Acting Attorney General, on brief for respondent.

Before Torruella, Circuit Judge, Selya, Senior Circuit Judge, and Lipez, Circuit Judge.

PER CURIAM.

Petitioner Musa Karim petitions for review of the decision by the Board of Immigration Appeals (BIA) dismissing his appeal from the decision of the Immigration Judge (IJ) ordering him removed to Kenya for being an alien in violation of his immigration status, pursuant to 8 U.S.C. § 1227(a)(1)(C)(i). Karim contends that the BIA erred in rejecting his claim of U.S. citizenship and his claims of violations of procedural due process in his immigration proceedings. We deny the petition for review.

"We review the BIA's decisions under the `substantial evidence' standard, which means we will uphold the decision if it is `supported by reasonable, substantial, and probative evidence on the record considered as a whole.' This is a deferential standard, and we will reverse the BIA only if the evidence compels that result." Attia v. Gonzales, 477 F.3d 21, 23 (1st Cir. 2007).

Karim's central claim is that the IJ and BIA improperly shifted the burden of proving alienage to him and relied upon evidence that was obtained as a result of the government's alleged "egregious" and unconstitutional conduct in searching his home. The record reveals, however, that the IJ properly relied upon Karim's pleading, submitted in September 2005, in which he (through counsel) admitted the factual allegations in the Notice to Appear (NTA), including the allegation that he was not a United States citizen. The pleading satisfied the government's burden. "[T]he government need only establish the [individual's] identity and alienage to meet its burden on deportation. The burden then shifts to the [individual] to show the time, place, and manner of entry in order to defeat deportation." Navarro-Chalan v. Ashcroft, 359 F.3d 19, 22 (1st Cir. 2004).

Karmir argues that he should be permitted to withdraw the concession in his pleading because he never specifically authorized his attorney to concede the facts alleged in the NTA. However, Karim has not alleged that he did not authorize Attorney Macarius to represent him at the September 29, 2005 hearing, in which Karim participated via televideo conferencing and at which time the pleading was submitted without objection. "[A]ll that is required for an attorney's concession to be binding on an alien is the authorization of representation." Pietrzak v. Mukasey, ___ F.3d ___, (2d Cir. 2008) [2008 WL 142796, at *2]. Nor has Karim shown that his attorney engaged in the kind of "egregious" conduct that might warrant releasing Karim from his attorney's concessions. See id. Karim himself contends that he only became aware that he was a United States citizen two months before his February 8, 2007 hearing, long after the pleading was submitted.¹ He has otherwise failed to allege that the pleading contained false information.

In all events, the record supports the BIA's finding that Karim, after claiming U.S. citizenship for the first time in January 2007, provided "no evidence that he was born in the United States." The additional evidence submitted to the BIA on appeal, consisted only of the passport and death certificate for Ruth Schaffner, without explanation of Karim's relationship to Schaffner or the effect of that relationship upon his citizenship status. Therefore, we conclude that the BIA supportably found that such evidence did "not require a remand for its consideration."

The BIA's rulings on Karim's remaining claims are fully supported by the record. Karim argues that the IJ erred in re-calendaring his case without conforming to the regulations that govern re-opening of an immigration case. The record establishes that the case was "administratively closed" in October 2005, and "re-calendared" in November 2006. "Administrative closure is a procedural convenience that may be granted if both parties to the removal proceedings agree, but it does not constitute a final order. . . Rather, administrative closure of a case temporarily removes a case from an immigration judge's calendar or from the Board's docket." Lopez-Reyes v. Gonzales, 496 F.3d 20, 21 (1st Cir. 2007)(emphasis...