Makieh v. Holder

• Decision Date: 14 July 2009
• Docket Number: No. 08-2213.,08-2213.
• Citation: 572 F.3d 37
• Parties: Jamal MAKIEH, Petitioner, v. Eric H. HOLDER, Jr.,<SMALL><SUP>*</SUP></SMALL> Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

572 F.3d 37

Jamal MAKIEH, Petitioner, v. Eric H. HOLDER, Jr.,^* Attorney General, Respondent.

No. 08-2213.

United States Court of Appeals, First Circuit.

Submitted June 4, 2009.

Decided July 14, 2009.

Ilana Etkin Greenstein, Jeremiah Friedman, Maureen O'Sullivan, Harvey Kaplan, and Jeanette Kain on brief for petitioner.

Michael H. Hertz, Acting Assistant Attorney General, and Michelle Gorden Latour and Timothy G. Hayes, Office of Immigration Litigation, on brief for respondent.

Before LYNCH, Chief Judge, EBEL^** and LIPEZ, Circuit Judges.

EBEL, Circuit Judge.

Jamal Makieh ("Makieh") petitions for review of the decision of the Board of Immigration Appeals ("BIA" or "the agency") dismissing his appeal. The BIA adopted and affirmed the oral decision of the Immigration Judge ("IJ"), who denied Makieh's application for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). Because we lack jurisdiction to consider Makieh's challenge as to the asylum issue, and because the IJ's decision denying withholding of removal and CAT protection was supported by substantial evidence on the record as a whole, we DISMISS the petition for review in part and DENY it in part.

I. FACTUAL AND PROCEDURAL BACKGROUND

Makieh, a Syrian citizen, was born and grew up in Latakia, Syria. Latakia is also home to the family of Syria's president, Bashar al-Asad, whom the State Department's Country Report on Human Rights Practices for 2005 described as "authoritarian." While Makieh is fearful of the president's family and of the Islamic extremism on the rise in his home country, neither he nor any member of his family has ever been harmed by the Syrian government or by anyone else in Syria. In the 1980s, Makieh's brother, Mohammed, and father, Ahmad, came to the United States. Both subsequently became U.S. citizens. Makieh's mother and sisters continue to live in Syria; Makieh testified before the immigration court that they do not face any threat of harm-or actual harm-there because "they live a simple life away from people, just family."

In October of 1992, when Makieh was twenty-one years old and facing conscription into the Syrian military, he entered the United States on a non-immigrant (F-1) student visa. That visa authorized him to remain in this country for "duration of status," or "D/S," which meant "the time during which [Makieh] [wa]s pursuing a full course of study at an educational institution approved" originally by the Immigration and Naturalization Service ("INS"), and later by the Department of Homeland Security ("DHS"),¹ 8 C.F.R. § 214.2(f)(5)(i). Makieh never enrolled in the educational program for which he had been approved.

Remaining in the United States without permission, Makieh lived with his brother and father. In July of 2000, Makieh's father, who by then had attained permanent resident status through his son Mohammed, filed an I-130 Immigrant Petition for Relative (the "visa petition") on Makieh's behalf. Pursuant to 8 U.S.C. § 1153(a)(2)(B), the visa petition named Makieh as the unmarried adult son of a permanent resident. If granted, the visa petition would have made Makieh eligible to apply for adjustment of his residency status to that of lawful permanent resident. See Taing v. Napolitano, 567 F.3d 19, 21 (1st Cir.2009); see also 8 U.S.C. § 1255; 8 C.F.R. § 245.1.

On January 30, 2003, the INS initiated removal proceedings against Makieh. Just over six months later, Makieh married a U.S. citizen, and in June of 2004, she filed a visa petition on his behalf. Before that petition could be adjudicated, however, the couple formally separated, and they divorced in December of 2005. Makieh's marriage also voided the earlier visa petition filed by his father, because the marriage rendered Makieh ineligible, under the Immigration and Naturalization Act ("INA"), for consideration as an unmarried adult son of a permanent resident, 8 U.S.C. § 1101(a)(39). Following Makieh's divorce, Ahmad Makieh filed a second visa petition for Makieh as his unmarried adult son.

Just before his divorce, in October of 2005, Makieh had filed an application for asylum and for withholding of removal, cancellation of removal, and protection under the CAT. At his final hearing before the IJ on the merits of this application, Makieh testified that he had come to the United States to be with his brother and father, and to embrace American freedom and democracy. He also testified, in broad terms, as to his fear of the Syrian government as motivating him to come to the United States. Makieh further testified that he became truly afraid of returning to Syria after the events of September 11, 2001, and the U.S. invasions of Iraq and Afghanistan that followed. The administrative record includes evidence of an increase, since those invasions, in violence perpetrated by Syrian extremists against American interests. That violence included the bombing of the American embassy in Damascus the month prior to Makieh's final hearing in immigration court.

According to Makieh, because he has spent his "adult life" in the United States, Syrians—especially Islamic extremists— will see him as being "like Americans," and thus "like a traitor or something." As a result, he fears for his safety and believes he will be tortured if he returns to Syria. However, Makieh's father, an American citizen, returns to Syria on a regular basis for holy days; he generally spends several months at a time there before returning to the United States. Ahmad Makieh has never been harmed by the Syrian government or by Islamic extremists. Makieh's brother, also an American citizen, likewise has returned to Syria on a number of occasions and has not been harmed. Makieh himself has not returned to Syria since he left in 1992. Finally, Makieh, his father, and his brother all testified or averred that Ahmad Makieh would suffer extraordinary hardship if Makieh were removed to Syria, because Makieh is the principal caregiver for his father.

The IJ ruled on Makieh's application in an oral decision handed down on October 24, 2006. The IJ first denied the application for asylum as untimely, ruling that Makieh failed to file his application within the one-year period, starting from the date of arrival in the United States, mandated by the INA, 8 U.S.C. § 1158(a)(2)(B). The IJ explained that Makieh was not eligible for consideration of an untimely application because (1) even if the court accepted his contention that changed circumstances in Syria materially affected his eligibility for asylum, Makieh failed to file his application within a reasonable time after learning of those changed circumstances; and (2) Makieh failed to show any other extraordinary circumstances that would justify untimely filing. See 8 U.S.C. § 1158(a)(2)(D).

The IJ went on to deny Makieh's application for withholding of removal and for protection under the CAT, finding that Makieh failed to demonstrate a "clear probability"—i.e., that it is more likely than not—that he would be persecuted on the basis of one of five statutorily enumerated grounds,² or that he would be tortured. See 8 U.S.C. § 1231(b)(3)(A) (withholding of removal); 8 C.F.R. § 208.16(b) (same); id. §§ 208.16(c), 208.18 (implementing the CAT); Castillo-Diaz v. Holder, 562 F.3d 23, 27 (1st Cir.2009)(reciting "clear probability" standard for withholding of removal); Sulaiman v. Gonzales, 429 F.3d 347, 351 (1st Cir.2005) (applying same standard for protection under the CAT).³

On Makieh's appeal, the BIA adopted and affirmed the IJ's decision in full, summarizing the decision and adding the observation that Makieh's alleged unawareness of the availability of asylum did "not qualify for an exception to the 1-year filing deadline" for asylum applications. The BIA dismissed the appeal on August 21, 2008, and Makieh timely filed his petition for review before this Court.

Makieh seeks review of the following: (1) the IJ's alleged failure to consider his argument that he is eligible to have his untimely application for asylum considered on the merits because his reliance on his father's and wife's petitions for visas on his behalf constituted an extraordinary circumstance; and (2) the IJ's determination that it is not more likely than not that Makieh would be persecuted or tortured if he were removed to Syria.

II. DISCUSSION

A. Scope and standard of review

In relevant part, § 1252(b)(4) mandates that

(A) the court of appeals shall decide the petition only on the administrative record on which the order of removal is based, [and]

(B) the administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary....

8 U.S.C. § 1252(b)(4). Consistent with the statutory mandate, "[w]e review the BIA's [or IJ's] findings of fact under the deferential substantial evidence standard." Scatambuli v. Holder, 558 F.3d 53, 58 (1st Cir.2009). Under this standard, we will reverse the BIA's decision "only if a `reasonable adjudicator would be compelled to conclude to the contrary.'" Castillo-Diaz, 562 F.3d at 26 (quoting 8 U.S.C. § 1252(b)(4)(B)). This means that we will uphold the decision if it is "supported by reasonable, substantial, and probative evidence on the record considered as a whole." Id. (quotation omitted). We review questions of law de novo. Id.

When, as in this case, the BIA "adopts the IJ's opinion and discusses some of the bases for the IJ's decision, we have authority to review both the IJ's and the BIA's opinions." Scatambuli, 558 F.3d at 58 (quotation omitted). Within that review, we should "judge the action of the BIA based only on reasoning provided by the agency, not on grounds constructed by the reviewing court." Mihaylov v. Ashcroft, 379 F.3d 15, 21 (1st Cir.2004) (quotation, alteration omitted). As a result, "we will remand if the agency fails to state with sufficient particularity ... legally sufficient reasons for its decision." Id. (...