Khalili v. Holder

Decision Date27 February 2009
Docket NumberNo. 08-3296.,08-3296.
Citation557 F.3d 429
PartiesHamdi Al KHALILI, Petitioner, v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.
CourtU.S. Court of Appeals — Sixth Circuit

Charles S. Owen, Owen & Associates, Southfield, Michigan, for Petitioner. John W. Blakeley, United States Department of Justice, Washington, D.C., for Respondent.

ON BRIEF:

Charles S. Owen, Owen & Associates, Southfield, Michigan, for Petitioner. John W. Blakeley, Aviva L. Poczter, United States Department of Justice, Washington, D.C., for Respondent.

Before KENNEDY, COLE, and GILMAN, Circuit Judges.

OPINION

COLE, Circuit Judge.

Petitioner Hamdi Al Khalili appeals the order by the Board of Immigration Appeals ("BIA") affirming the immigration judge's final order of removal to Jordan. The immigration judge rendered her decision on June 23, 2006, denying Khalili's application because he failed to establish his membership in a particular social group and because he did not show that the Jordanian government was unwilling or unable to control the non-governmental actors who he alleged would seek to harm him. Khalili appealed to the BIA. The BIA affirmed, concluding that Khalili had failed to demonstrate the inability or unwillingness of his government to protect him.

Khalili now petitions for review of the BIA's decision. He argues that the BIA's determination that he did not belong to a particular social group, such that he would face persecution if he were forced to return to Jordan, was arbitrary and capricious. He also argues that the BIA erred in finding that he had not established a prima facie case of eligibility for asylum based on its reading of Jordan's official stance on honor killings.

The Government argues that this Court lacks jurisdiction to consider Khalili's claim because he failed to exhaust his administrative remedies. In the alternative, the Government argues that substantial evidence supports the BIA's decision.

For the reasons set forth below, we find that BIA actions exhausted Khalili's administrative remedies by sua sponte raising and ruling on the immigration judge's determination regarding the Jordanian government. Thus, this Court has jurisdiction to consider Khalili's appeal of that issue. However, this Court also finds that substantial evidence supports the BIA's determination that Khalili failed to show that the Jordanian government was unable or unwilling to protect him and his family. We therefore DENY Khalili's petition for review.

I. BACKGROUND
A. Factual background

Khalili, a citizen and native of Jordan, met his current wife, Deena, in Jordan in 1986. Despite resistance from her family, they married in August 1992. Before and after the wedding, Deena's family members showed their disapproval of the relationship by beating Deena and by making false accusations against Khalili. Based, in part, on fear for himself and his family, Khalili moved with his wife and two children to the United States in September 1999.

While living in the United States, Khalili and Deena got into a disagreement relating to Deena's sister. Deena's family became involved in the dispute, which ultimately led to the couple's divorce in August 2000. Though Khalili and Deena were both living in Michigan at the time, the divorce was obtained under Jordanian law. Thereafter, Deena and the children moved back to Jordan, where she alleges that her family mistreated her because of the divorce.

Following the divorce, Khalili married his second wife in 2001. After a few months, Khalili's second wife took a trip to New Jersey, and he never saw her again. He subsequently obtained a second divorce.

Meanwhile, as a result of the harsh treatment they received after returning to Jordan, Deena and the children moved back to the United States in June 2003. Khalili renewed contact with her, and they had a third child in May 2004. They remarried in May 2005.

B. Procedural background

Khalili was legally admitted to the United States as a nonimmigrant visitor on September 19, 1999. The Immigration and Naturalization Service, now part of the United States Department of Homeland Security, initiated removal proceedings against him by filing a Notice to Appear, charging him with removability under section 237(a)(1)(B) of the Immigration and Nationality Act (the "INA"), 8 U.S.C. § 1227(a)(1)(B), as an alien who remained in the United States for a time longer than permitted.

At the removal hearing on October 1, 2004, Khalili conceded removability, but filed an application for withholding of removal under section 241(b)(3). Alternatively, he requested voluntary departure under section 240(B).

Khalili's section 241(b)(3) application for withholding of removal claimed persecution on account of his religion and membership in a particular social group. He testified in support of that claim in removal hearings on June 19, 2006 and June 23, 2006. Khalili and Deena testified that Deena's family had previously attacked them and their children and had also threatened them with future harm. Khalili testified he feared that, if they returned to Jordan, he or his family might become victims of honor killings—the murder of a family or clan member due to the belief that the individual has brought dishonor on the family. Finally, Khalili testified that he did not believe the Jordanian government could protect him because "usually they don't interfere [with] honor things." (Joint Appendix 118.) In support of his arguments, Khalili offered marriage and divorce certificates as well as two 2003 British Broadcast Corporation news articles related to honor killings in Jordan. In response, the Government submitted the 2005 State Department Country Report on Human Rights for Jordan.

On June 23, 2006, the immigration judge denied Khalili's application for withholding of removal. Despite finding Khalili's testimony generally consistent and credible, the immigration judge determined that Khalili was ineligible for withholding of removal under the INA because he was unable to establish that he had been or would be subject to persecution on account of any of the five statutorily enumerated grounds. Noting that Khalili had claimed protection based on religion and on membership in a social group—a group the immigration judge defined as males subject to honor killings—the immigration judge found that Khalili's ability to establish that he fit within a particular social group was undermined by the lack of evidence showing that the cultural practice of honor killing is extended to men. The immigration judge also found that Khalili had not demonstrated that the Jordanian government would be unwilling or unable to protect him. Finally, the immigration judge denied Khalili's request for voluntary departure.

Khalili appealed to the BIA. The BIA denied that appeal on February 21, 2008, stating that Khalili's Notice of Appeal and briefs did not challenge the immigration judge's finding that he failed to show that the government of Jordan was unwilling or unable to protect him. Despite Khalili's failure to challenge that issue, the BIA nonetheless ruled on it. The BIA relied on evidence showing that the Jordanian government prosecutes those accused of honor killings. The BIA also determined that Khalili failed to present any evidence that men, as opposed to women, were the subjects of honor killings. The BIA reasoned that Khalili's failure to show the inability or unwillingness of his government to protect him was a sufficient basis for denying his application for withholding of removal, and the BIA affirmed the immigration judge's decision.

II. LAW AND ANALYSIS
A. Jurisdiction
1. Failure to present reviewable issues to the BIA

This Court generally has jurisdiction to consider a timely petition for review of a BIA final order of removal under INA section 242, 8 U.S.C. § 1252(a)(1), as amended by the REAL ID Act of 2005, Pub.L. No. 109-13, 119 Stat. 231, 310-11 (2005). However, before raising an immigration issue in federal court, a petitioner must normally present all reviewable issues to the BIA. Sterkaj v. Gonzales, 439 F.3d 273, 279 (6th Cir.2006). Specifically, 8 C.F.R. section 1003.3(b), the "Statement of basis of appeal" regulation, requires:

The party taking the appeal must identify the reasons for the appeal in the Notice of Appeal [to the BIA] (Form EOIR-26 or Form EOIR-29) or in any attachments thereto, in order to avoid summary dismissal pursuant to § 1003.1 (d)(2)(i). The statement must specifically identify the findings of fact, the conclusions of law, or both, that are being challenged. If a question of law is presented, supporting authority must be cited. If the dispute is over the findings of fact, the specific facts contested must be identified. Where the appeal concerns discretionary relief, the appellant must state whether the alleged error relates to statutory grounds of eligibility or to the exercise of discretion and must identify the specific factual and legal finding or findings that are being challenged.

Moreover, this Court has explained that the issue must be reasonably developed in the petitioner's brief to the BIA. Hasan v. Ashcroft, 397 F.3d 417, 420 (6th Cir.2005). If the petitioner fails to exhaust an issue before the BIA, that issue is normally deemed to be waived. Id. at 419-20; see also Ramani v. Ashcroft, 378 F.3d 554, 560 (6th Cir.2004).

The Government argues that this Court should dismiss Khalili's petition for lack of jurisdiction because he did not appeal to the BIA the immigration judge's determination that he failed to show that the government of Jordan would be unwilling or unable to protect him. Review of Khalili's notice of appeal and his supporting brief reveals that he did not raise any challenges to the immigration judge's finding regarding the Jordanian government.

2. Sua sponte consideration by the BIA

Khalili's failure to challenge the...

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