Sanusi v. Gonzales

• Decision Date: 18 April 2006
• Docket Number: No. 01-4047-AG.,01-4047-AG.
• Citation: 445 F.3d 193
• Parties: Rasaq Opyemi SANUSI, Petitioner, v. Alberto GONZALES, United States Attorney General<SMALL><SUP>*</SUP></SMALL> Respondent.
• Court: U.S. Court of Appeals — Second Circuit

445 F.3d 193

Rasaq Opyemi SANUSI, Petitioner, v. Alberto GONZALES, United States

Attorney General^* Respondent.

No. 01-4047-AG.

United States Court of Appeals, Second Circuit.

Argued: April 3, 2006.

Decided: April 18, 2006.

Sandra Greene, York, PA, for Petitioner.

Aixa Maldonado-Quiñones, Assistant United States Attorney (Thomas P. Colantuono, United States Attorney, Peter E. Papps, Assistant United States Attorney, on the brief), United States Attorney's Office for the District of New Hampshire, Concord, NH, for Respondent.

Before: CABRANES, SOTOMAYOR, and RAGGI, Circuit Judges.

PER CURIAM.

We consider here whether a Court of Appeals possesses jurisdiction to review the decision of an immigration judge to deny a motion for a continuance filed during an immigration proceeding.

Petitioner Rasaq Opyemi Sanusi, a native and citizen of Nigeria, seeks review of a February 26, 2001 order of the Board of Immigration Appeals ("BIA") dismissing his appeal of a decision by Immigration Judge ("IJ") Donn Livingston denying Sanusi's request for relief under the United Nations Convention Against Torture ("CAT").¹ See In re Sanusi, Order and Oral Decision of the Immigration Judge, File No. A76 186 829 (Jamaica, NY, Mar. 16, 2000). Sanusi argues that the IJ made two errors, each of which was affirmed by the BIA. First, Sanusi argues that the IJ should have granted him relief under the CAT, stating that the IJ applied the wrong legal standard and incorrectly found Sanusi's testimony not to be credible. Second, Sanusi contends that the IJ erred in denying Sanusi's motion for a continuance, which he requested so that he might acquire additional medical evidence in support of his CAT claim. In addition, Sanusi argues that the BIA erred when it refused to remand Sanusi's case to the IJ for further proceedings to consider newly available evidence.

We conclude that Sanusi's arguments are without merit and, accordingly, we deny the petition for review.

BACKGROUND

Sanusi originally applied for asylum and for withholding of removal under sections 208(a) and 241(b)(3) of the Immigration and Naturalization Act of 1952 ("INA"), as amended, 8 U.S.C. §§ 1158(a), 1231(b)(3). The IJ denied Sanusi's application for asylum and for withholding of removal under the INA on March 23, 1998 and ordered Sanusi removed. Sanusi declined to appeal, thereby waiving any claims of error he might have had before this Court. See 8 U.S.C. § 1252(d)(1) ("A court may review a final order of removal only if . . . the alien has exhausted all administrative remedies available to the alien as of right[.]"); Foster v. INS, 376 F.3d 75, 77 (2d Cir. 2004) ("[F]ailure to exhaust [these remedies] constitutes a clear jurisdictional bar." (internal quotation marks omitted)). Regulations enacted after the CAT entered into force allowed aliens subjected to removal orders on or before March 22, 1999 to apply for relief under the CAT by moving to reopen their cases.² Sanusi did so, and the IJ reopened the case on August 23, 1999. The IJ conducted a hearing on Sanusi's CAT claim on December 29, 1999 and on March 16, 2000 issued an order denying relief for, inter alia, "the same reasons that [Sanusi's] asylum application was denied." Sanusi now seeks review of the BIA order dismissing his appeal of the IJ's order denying him CAT relief; his original application for asylum and for withholding of removal under the INA is not at issue here.

In Sanusi's application for asylum, his "credible fear interview," and his "Torture Convention interview," Sanusi alleged that he was persecuted and tortured in Nigeria on account of his political beliefs and activities. Among other instances of mistreatment, Sanusi alleged that he was arrested, interrogated, and detained on several occasions because of his activism on behalf of Nigeria's Social Democratic Party ("SDP"). He stated further that while in detention he was beaten, his ribs were broken, his head was kicked and "ripped open," and his arm was broken. In addition, according to Sanusi, during a subsequent detention, a "pin was stuck into [his] male part" and he was struck until unconscious. He claims to have been warned repeatedly to stop his work on behalf of the party and against Nigeria's president, whom the SDP opposed. Sanusi stated that he fled Nigeria after seeing his name on a list of persons whom "the government want[ed] to get rid of."

After leaving Nigeria in December 1993, Sanusi arrived in the United Kingdom, where he attempted, apparently unsuccessfully, to obtain asylum. He stated that he left the United Kingdom for the United States, where he arrived in October 1997, because he feared the United Kingdom would deport him to Nigeria and that Nigeria's government would torture or kill him were he to return.

On March 23, 1998, the IJ denied Sanusi's original application for asylum and for withholding of removal under the INA on the basis of an adverse credibility determination. Among other things, the IJ based his adverse credibility finding on the following items in the record: (1) Sanusi said at one point in his "credible fear interview" that he had been a member of the "Christian Democratic Party," which was inconsistent with his claim at other times to have been in the "Social Democratic Party,"³ (2) Sanusi's demeanor at his hearing before the IJ "was somewhat hesitant and in [the IJ's] opinion . . . was not consistent with credible testimony," and (3) Sanusi was "vague and inconsistent regarding his employment with the Nigerian Airways."⁴ In addition, the IJ found that Sanusi presented false documents upon entry to the Unites States, indicating "a willingness to employ deception in order to gain admission to the United States," and noted that Sanusi failed to present documents supporting his claimed political activity in Nigeria.

After Sanusi's case was reopened on August 23, 1999 for review of his CAT claim, the same IJ heard the case. In a decision dated March 16, 2000, the IJ concluded that Sanusi's CAT claim was "based on the same basic facts as the original asylum and withholding of removal applications." The IJ recounted the grounds on which the previous adverse credibility finding rested and identified additional reasons, based on the reopened proceeding, for finding Sanusi's story not credible. First, Sanusi mentioned his "wife" during the reopened proceeding, but on his asylum application he had stated that he was unmarried.⁵ Second, Sanusi again failed to produce documents supporting his claims.⁶

The IJ denied Sanusi's CAT claim on the merits and also denied his request for a continuance. As the IJ explained, Sanusi's "counsel requested additional time to provide medical evidence supportive of [Sanusi's] claim to having been mistreated by authorities in Nigeria." The IJ recounted that Sanusi had already been granted continuances — one from the close of the hearing on December 29, 1999 until January 31, 2000 and another from then until February 10, 2000. Sanusi's counsel sought a third continuance on February 10, 2000 and subsequently "represented by telephone that further evidence was coming." In a letter dated February 12, 2000, Sanusi's counsel indicated that "[a]n appointment [to examine Sanusi] ha[d] been scheduled for February 19, 2000" and that "the doctor [would] submit the report by the first week of [March]." Because no such evidence was submitted by March 16, 2000, the IJ denied the continuance and issued his decision on the merits on that date.

On March 30, 2000, Sanusi filed a motion to reconsider and attached an affidavit from a doctor who set forth "the results of her interview and physical examination of" Sanusi — the evidence, we presume, that Sanusi's counsel had represented would be forthcoming when making the February 10, 2000 request for a third continuance. For various reasons, the IJ did not credit the doctor's evidence⁷ and therefore denied the motion on April 12, 2000.

I. The IJ's Denial of Sanusi's Request for a Continuance

Before examining whether the IJ erred in denying Sanusi's final request for a continuance, we must consider the threshold question of whether we possess jurisdiction to review the decision. For the reasons that follow, we hold that we may review a decision by an IJ or the BIA to grant or to deny a continuance for an abuse of discretion.

The INA allows a court considering a final order of removal pursuant to 8 U.S.C. § 1252 to review "all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien." Id. § 1252(b)(9). Pursuant to the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, 110 Stat. 3009 (1996) ("IIRIRA"), Congress has, however, amended the INA to preclude judicial review of any "decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security, other than the granting of" asylum. 8 U.S.C. § 1252(a)(2)(B)(ii). The phrase "this subchapter" refers to subchapter II of Chapter 12 of Title 8 of the United States Code, which includes §§ 1151-1381. See, e.g., Onyinkwa v. Ashcroft, 376 F.3d 797, 799 (8th Cir.2004). The scope of this jurisdiction-stripping provision of the IIRIRA was itself limited by section 106(a)(1)(A)(iii) of the REAL ID Act of 2005, Pub.L. No. 109-13, 119 Stat. 231, which provides that nothing any provision of the INA "which limits or eliminates judicial review . . . shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals. . . ." 8 U.S.C. § 1252(a)(2)(D).

In light of that statutory landscape, we consider whether we may exercise jurisdiction to review the instant petition to the extent Sanusi challenges...