Lasu v. Barr

• Decision Date: 31 July 2020
• Docket Number: No. 18-3550,18-3550
• Parties: Sobura Juma LASU Petitioner v. William P. BARR, Attorney General of the United States Respondent
• Court: U.S. Court of Appeals — Eighth Circuit

970 F.3d 960

Sobura Juma LASU Petitioner

v.William P. BARR, Attorney General of the United States Respondent

No. 18-3550

United States Court of Appeals, Eighth Circuit.

Submitted: November 12, 2019

Filed: July 31, 2020

Jamie L. Arango, Arango Law, Lincoln, NE, for Petitioner

Maarja Tiganik Luhtaru, Trial Attorney, Carl H. McIntyre, John Frederick Stanton, U.S. Department of Justice, Civil Division, Office of Immigration Litigation, Washington, DC, for Respondent

Before GRUENDER, KELLY, and ERICKSON, Circuit Judges.

GRUENDER, Circuit Judge.

Sobura Juma Lasu petitions for review of a final order of removal issued by the Board of Immigration Appeals ("BIA") denying Lasu's application for deferral of removal under the United Nations Convention Against Torture ("CAT"). We deny the petition.

I.

Lasu, a native of Egypt and a citizen of South Sudan, was admitted to the United States as a refugee in 2000. Though he was born in Egypt and has never visited South Sudan, Lasu claims derivative membership in the minority Yambara and Pojulu ethnic tribes—the Sudanese tribes of his mother and father, respectively.

Lasu was convicted of possession of marijuana in 2016 and of attempt to deliver a controlled substance in 2017, both in violation of Nebraska law. On account of these convictions, the Department of Homeland Security ("DHS") initiated removal proceedings. In April 2018, the Immigration Judge ("IJ") found Lasu removable as charged.

Lasu applied for refugee adjustment of status, asylum, withholding of removal, and relief under the CAT. In May 2018, the IJ denied Lasu's application for refugee adjustment of status, found that Lasu was ineligible for asylum because he had been convicted of a particularly serious crime, and denied Lasu withholding of removal on the same grounds. But the IJ granted deferral of removal under the CAT because it concluded that Lasu was more likely than not to experience torture in South Sudan, citing Lasu's membership in an ethnic minority tribe and the ongoing ethnic violence in the country. Though the IJ granted relief under the CAT as to South Sudan, it ordered Lasu deported to Egypt.

DHS appealed to the BIA, contesting the IJ's decision to grant relief under the CAT. The BIA concluded that Lasu had not established that it was more likely than not that he would be tortured by or with the consent of South Sudanese officials. As a result, the BIA reversed the IJ and ordered Lasu removed from the United States. Lasu timely petitioned for review of the BIA's decision.

II.

Before turning to the merits of Lasu's arguments, we must first address whether we have jurisdiction. We are statutorily barred from reviewing any final order of removal against an alien who—like Lasu—is removable by reason of having committed a controlled substance offense except for "constitutional claims or questions of law." See 8 U.S.C. § 1252(a)(2)(C)-(D) ; see also Hanan v. Mukasey , 519 F.3d 760, 763 (8th Cir. 2008). We previously construed this jurisdictional limitation, often called the criminal-alien bar, to apply to CAT claims because we concluded a denial of a deferral of removal under the CAT constituted a final order of removal. See Lovan v. Holder , 574 F.3d 990, 998 (8th Cir. 2009).

This term, however, the Supreme Court abrogated this reasoning, clarifying that "Congress's decision to bar judicial review of factual challenges to final orders of removal does not bar judicial review of factual challenges to CAT orders." Nasrallah v. Barr , 590 U.S. ––––, 140 S. Ct. 1683, 1692, ––– L.Ed.2d –––– (2020). Thus, in the context of a CAT claim, we are no longer precluded by the criminal-alien bar from reviewing factual challenges, and the Supreme Court has instructed that "[t]he standard of review [for factual challenges] is the substantial-evidence standard." Id. This standard is highly deferential, and the agency's "findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary." Id. We review constitutional claims and questions of law de novo . Kassim v. Barr , 954 F.3d 1138, 1140 (8th Cir. 2020).

A.

Lasu first argues that the BIA incorrectly applied the clear error standard of review to the IJ's findings of fact and improperly engaged in its own fact-finding. In response, the Government suggests that we lack jurisdiction to review these issues because Lasu did not exhaust them before the BIA. We conclude we are precluded from reviewing these issues because Lasu had not exhausted his administrative remedies as to these issues when he filed his initial petition, and because, after exhausting, he never properly petitioned this court to review them.

To properly address these contentions, it is first necessary to set out some of the procedural history of this case. After the IJ issued its decision granting Lasu CAT relief on May 31, 2018, DHS appealed to the BIA. The BIA subsequently reversed the IJ on November 2, 2018. Lasu then filed both a petition for review of the BIA's November 2, 2018 order to this court and a motion for reconsideration of its November 2, 2018 to the BIA, raising in both his petition and his motion for reconsideration issues not previously presented to the BIA. Lasu did not petition this court to review the BIA's decision in response to his motion for reconsideration, and we became aware of it only when the Government mentioned it in its briefing. At oral argument, we inquired as to whether Lasu intended to petition for review of the BIA's denial of his motion to reconsider, and Lasu's counsel informed the court that Lasu did not intend to do so. To date, Lasu has not provided the court with either a copy of his motion for reconsideration or the corresponding BIA decision.

We treat a petition for review of an initial BIA order and a petition for review of the denial of a motion for reconsideration as "two separate petitions filed to review two separate final orders." Esenwah v. Ashcroft , 378 F.3d 763, 765 (8th Cir. 2004). For this reason, an alien may petition for review of the initial order of removal or an order responsive to a motion to reconsider, see id , or he may petition for review of both orders by consolidating his petitions for review in the same action, see Ramirez v. Sessions , 902 F.3d 764, 769-70 (8th Cir. 2018) (considering separate petitions in turn); 8 U.S.C. § 1252(b)(6) ("[A]ny review sought of a motion to reopen or reconsider the order shall be consolidated with the review of the order.").

Because an order denying a motion to reconsider is separate and distinct from the BIA's removal order, to present issues properly to this court that were initially raised to the BIA in a motion for reconsideration, an alien must petition for review of the denial of the relevant motion for reconsideration. See Yun-Zhen Ma v. Holder , 358 F. App'x 283, 284 n.2 (2d Cir. 2009) (per curiam) (declining to review the BIA's denial of petitioner's motion for reconsideration where the alien did not petition for review of that denial); 8 U.S.C. § 1252(b)(4)(A) ("[T]he court of appeals shall decide the petition only on the administrative record on which the order of removal is based."); see also Stone v. INS , 514 U.S. 386, 393-94, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995) (recognizing that an alien must petition for review of a motion to reconsider). Failure to do so precludes our review of issues initially presented to the BIA in the motion for reconsideration, even if those same issues were argued in the petition to this court for review of the underlying initial order. Cf. Boudaguian v. Ashcroft , 376 F.3d 825, 827 (8th Cir. 2004) (holding that the court would not review arguments concerning the BIA's removal order when an alien only petitioned for review of his motion to the BIA to reconsider).

Drawing from these principles, we conclude that Lasu's arguments that the BIA incorrectly applied the clear error standard of review and engaged in improper fact-finding are not properly before us. See id . First, the issues were not raised before the BIA during the initial appeal from the IJ. Thus, Lasu had not exhausted the issues when he first petitioned this court for review. See Marambo v. Barr , 932 F.3d 650, 656 (8th Cir. 2019) ; see also Meng Hua Wan v. Holder , 776 F.3d 52, 57 (1st Cir. 2015) (holding that when a petitioner complains of impermissible fact-finding by the BIA, "that claim is unexhausted unless and until the alien files a timely motion asking the BIA to reconsider its actions").

And second, though Lasu subsequently exhausted all administrative remedies by filing a motion for reconsideration before the BIA, see Escoto-Castillo v. Napolitano , 658 F.3d 864, 866 (8th Cir. 2011), he failed to petition for review of the denial of that motion, see 8 U.S.C. § 1252(b)(6). Indeed, when asked at oral argument, Lasu maintained that he was not petitioning for review of the BIA's denial of his motion for reconsideration. Thus, the issues first raised to the BIA in the motion for reconsideration are not properly before this court. See Yun-Zhen Ma , 358 F. App'x at 284 n.2.

B.

Lasu next argues that the BIA erred in finding that he had failed to meet his burden of persuasion that he is more likely than not to be tortured if returned to South Sudan. Lasu's petition here proceeds in two movements: first, he argues the BIA required him to provide more specific grounds to prove he faces a likelihood of torture than is required by our precedent, and second, he argues that the BIA misinterpreted the CAT's specific-intent requirement.

"We review questions of law de novo." Cherichel v. Holder , 591 F.3d 1002, 1010 (8th Cir. 2010). We review the agency's factual determinations for substantial evidence. Nasrallah , 140 S. Ct. at 1692. "To qualify for relief under the CAT, an alien must show ‘that it is more likely than not that he or she would be tortured if removed to the proposed country of removal.’ " Malonga v. Mukasey , 546 F.3d 546, 554-55 (8th Cir. 2008) (...