Luhiso v. Barr
| Decision Date | 04 October 2019 |
| Docket Number | No. 19-3023,19-3023 |
| Parties | ABDIKADIR HAMADI LUHISO, Petitioner, v. WILLIAM P. BARR, Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Sixth Circuit |
NOT RECOMMENDED FOR PUBLICATION
File Name: 19a0504n.06
BOGGS, Circuit Judge. Petitioner Abdikadir Luhiso seeks review of a Board of Immigration Appeals ("BIA") decision denying as untimely his motion to reopen. Luhiso contends that the BIA erred by applying an incorrect standard in evaluating "changed country conditions" under 8 U.S.C. § 1229a(c)(7)(C)(ii). He also argues that the agency erred by classifying a prior larceny conviction as a crime involving moral turpitude under 8 U.S.C. § 1227(a)(2)(A)(ii). We find these arguments to be without merit, and we DENY his petition for review.
Luhiso is a twenty-nine-year-old native and citizen of Somalia. In 2003, Luhiso and his family fled to the United States from a refugee camp in Kenya. After coming to the United States, the family lived in New York where, in 2012, Luhiso was convicted of petit larceny. See N.Y. Penal Law § 155.25. Luhiso later moved to Michigan where, on December 5, 2016, he was convicted of assault by strangulation or suffocation based on an altercation with his ex-girlfriend. He was sentenced to 365 days imprisonment. See Mich. Comp. Laws § 750.84(1)(b). Upon his release, the Department of Homeland Security ("DHS") took Luhiso into custody and initiated removal proceedings against him. DHS charged Luhiso with removability on two grounds: as an alien convicted of an aggravated felony, under 8 U.S.C. § 1227(a)(2)(A)(iii) and 8 U.S.C. § 1101(a)(43)(F), and as an alien who has been convicted of two or more crimes involving moral turpitude, under 8 U.S.C. § 1227(a)(2)(A)(ii). On October 17, 2017, an immigration judge found Luhiso removable and ordered him removed to Somalia. Luhiso waived his right to appeal this determination.
On April 10, 2018—175 days after the final order of removal—Luhiso filed a motion to reopen his immigration proceedings. Ordinarily, an alien has ninety days after a final order of removal to file a motion to reopen, but that deadline does not apply if the alien can demonstrate "changed country conditions . . . if such evidence is material and was not available and would not have been discovered or presented at the previous proceeding." 8 U.S.C. § 1229a(c)(7)(C)(ii). In support of "changed country conditions," Luhiso argued that (1) the terrorist group al-Shabaab's influence had grown within Somalia and (2) an unsuccessful attempt at removing him in December 2017, in which the flight was unable to reach Somalia, had raised his profile in the media and increased his risk of persecution.
The immigration judge concluded that Luhiso did not meet his burden of establishing changed country conditions in Somalia between October 2017 and April 2018, and denied his motion to reopen as untimely. The BIA agreed. The BIA concluded that Luhiso's proffered evidence regarding al-Shabaab's influence predated his final hearing, thus reflecting "continuing country conditions" rather than a material change. The BIA also agreed with the immigrationjudge that the attempted removal constituted a change in personal circumstance rather than a change in country conditions. The BIA thus affirmed the immigration judge's determinations and dismissed Luhiso's appeal.
Luhiso now petitions for review, arguing again that his motion was timely because of changed country conditions in Somalia. He now also argues for the first time that the BIA erred by classifying his larceny conviction as a crime involving moral turpitude.
This court's jurisdiction is governed by 8 U.S.C. § 1252, which provides that "no court shall have jurisdiction to review any final order of removal against an alien who is removable by having committed a criminal offense covered in . . . [§ 1227(a)(2)(A)(iii)]." This jurisdictional bar applies here because Luhiso's removal was adequately supported by his felony assault conviction. Thus, we have no jurisdiction to review the BIA's factual determinations. Shabo v. Sessions, 892 F.3d 237, 239 (6th Cir. 2018). We are permitted review over Luhiso's claims only insofar as they raise "constitutional claims or questions of law." 8 U.S.C. § 1252(a)(2)(D).1 These legal claims are reviewed de novo. Shabo, 892 F.3d at 240.
Luhiso's first claim is that the BIA erred as a matter of law in finding that Luhiso did not meet his burden of demonstrating changed conditions in Somalia between his final order ofremoval in October 2017 and his motion to reopen in April 2018. Luhiso argues that the evidence submitted before the BIA established that al-Shabaab's influence grew in Somalia during this time, but we fail to see how this argument is not an attempt to reframe a purely factual determination by the BIA as a legal issue. This court has held that "[t]he existence of changed country conditions is a question of fact," and Luhiso's claim necessarily challenges this underlying determination. Precaj v. Holder, 376 F. App'x 553, 561 (6th Cir. 2010); see also Zakar v. Sessions, 739 F. App'x 774, 777 (6th Cir. 2018) (); Pepaj v. Mukasey, 509 F.3d 725, 727 (6th Cir. 2007) (). The BIA noted that Luhiso's proffered evidence reflected a continuation of al-Shabaab activities that were both well-known and well-documented before October 2017, not a material change. This is a factual determination, which we have no jurisdiction to review.
Luhiso also contends that even if the BIA's determination is accepted, it still committed a legal error when it used an "impermissibly narrow" construction of the changed-country-conditions provision when evaluating the evidence. Specifically, Luhiso relies on Mandebvu v. Holder, which held that, in the context of reviewing an untimely application for asylum under 8 U.S.C. § 1158(a)(2)(D)2, the BIA can consider incremental changes to country conditions, meaning that the applicant need not "show that he was ineligible for asylum when he arrived in the United States before he can take advantage of 'changed circumstances' to extend the deadlinefor filing an application." Mandebvu v. Holder, 755 F.3d 417, 426 (6th Cir. 2014). But Mandebvu is inapplicable in our case. Luhiso is not attempting to file an untimely application for asylum under 8 U.S.C. § 1158(a)(2)(D), but a motion to reopen under 8 U.S.C. § 1229(a)(c)(7)(C)(ii), which provides a stricter standard of evaluation. § 1158(a)(2)(D) allows consideration of an untimely asylum application if the applicant can demonstrate "changed circumstances" generally, whereas § 1229(a)(c)(7)(C)(ii) allows consideration of an untimely motion to reopen only if the applicant demonstrates "changed country conditions."
This court has previously analyzed the relationship between these two provisions and concluded that they are not coterminous. In Zhang v. Mukasey, we affirmed the BIA's conclusion that § 1229a(c)(7)(C)(ii)'s changed-country-conditions provision was the exclusive avenue of relief from a final order of removal after ninety days, in effect requiring any successive asylum application filed after the ninety-day deadline to demonstrate a change in country conditions before the application could be considered. Zhang v. Mukasey, 543 F.3d 851, 859 (6th Cir. 2008). In so holding, we acknowledged that § 1229a(c)(7)(C)(ii)'s changed-country-conditions standard contained "more stringent procedural requirements" than § 1158(a)(2)(D)'s changed-circumstances provision, which was a "laxer standard." Id. at 858. Since Zhang, this court has continually refused to apply Mandebvu in the context of a motion to reopen. See Welson v. Sessions, 744 F. App'x 249, 257 (6th Cir. 2018); Reyna v. Lynch, 631 F. App'x 366, 371 (6th Cir. 2015). Luhiso's reliance on Mandebvu is thus misplaced.
Luhiso also attempts to rely on this court's recent decision in Pablo Lorenzo v. Barr, 2019 WL 4065442 (6th Cir. July 9, 2019). In Pablo Lorenzo, a panel of this court held that the BIA abused its discretion in its changed-country-conditions analysis when it discounted petitioner's evidence that "demonstrate[d] that Guatemala [became] significantly more hostile towardsindigenous land-rights activists." Id. at *6. The panel held that the BIA's failure to account for the "materially intensified" persecution constituted reversible error. Id. at *7. However, Luhiso's reliance on Pablo Lorenzo is misplaced. The petitioner's motion to reopen in that case was not evaluated under the backdrop of 8 U.S.C. § 1252's criminal-conviction jurisdictional bar. While this panel does not have broad leeway to second-guess the BIA's factual determinations, there is also no evidence to indicate that the BIA improperly discounted any of Luhiso's proffered evidence. As the BIA noted, some of Luhiso's evidence "predate[d] his final hearing" and one report "published over 6 months before [Luhiso's] final hearing" noted essentially the same conditions regarding al-Shabaab's influence as those Luhiso alleged. BIA Order, A.R. at 4-5. To the extent that a change in country conditions is a factual determination, the BIA has already concluded that Luhiso's evidence represented a "continuous trend" rather than "materially changed country conditions." Id. at 4.
Luhiso next contends that the BIA erred by treating the December 2017 removal attempt as a change in personal circumstance rather than a change in country...
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