Sharif v. Barr

• Decision Date: 07 July 2020
• Docket Number: No. 19-1478,19-1478
• Citation: 965 F.3d 612
• Parties: Bashir Mohamed SHARIF, Petitioner v. William P. BARR, Attorney General of the United States, Respondent
• Court: U.S. Court of Appeals — Eighth Circuit

965 F.3d 612

Bashir Mohamed SHARIF, Petitioner

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

No. 19-1478

United States Court of Appeals, Eighth Circuit.

Submitted: January 17, 2020

Filed: July 7, 2020

Counsel who presented argument on behalf of the petitioner was Steven J. Alagna, of Saint Louis, MO. The following attorney(s) appeared on the brief of petitioner; Sarah H. Paoletti, of Philadelphia, PA.

Counsel who presented argument on behalf of the respondent was Yanal H Yousef, USDOJ, OIL, of Washington, DC. The following attorney(s) appeared on the brief of respondent; Yanal H Yousef, USDOJ, OIL, of Washington, DC.

Before SMITH, Chief Judge, LOKEN and GRUENDER, Circuit Judges.

GRUENDER, Circuit Judge.

Bashir Mohamed Sharif petitions for review of the Board of Immigration Appeals’ ("BIA") decision to affirm an Immigration Judge's ("IJ") denial of his motion to reopen removal proceedings and to deny his motion to remand. For the reasons discussed below, we deny the petition in part and dismiss the remainder.

I.

Sharif, a native and citizen of Somalia, was admitted to the United States in 2000 as a refugee. He adjusted his status to lawful permanent resident in 2002. From 2005 to 2006, Sharif was convicted of three crimes, including violation of a protection order, see S.D. Codified Laws § 22-19A-16 ; injury to property, see S.D. Codified Laws § 22-34-1 ; and felony possession of a controlled substance, see S.D. Codified Laws § 22-42-5.

As a result, the Department of Homeland Security initiated removal proceedings against Sharif in 2007, charging him with being removable under 8 U.S.C. §§ 1227(a)(2)(A)(ii)-(iii) and 1227(a)(2)(B)(i). While represented by counsel, Sharif conceded the charges, admitted removability, and declined to apply for any form of relief. The IJ ordered him removed to Somalia, and Sharif waived his appeal to the BIA.

The Government did not seek to remove Sharif until a 2012 change in policy resumed deportations to Somalia. In December 2017, Sharif was placed on a flight to Somalia, chartered by Immigration and Customs Enforcement. Due to logistical issues, however, the plane landed in Senegal, where it remained for twenty hours before returning to the United States.

On June 15, 2018, Sharif filed a motion to reopen removal proceedings to seek asylum, withholding of removal, and relief under the Convention Against Torture ("CAT") based on a claim of changed country conditions in Somalia. See 8 U.S.C. § 1229a(c)(7)(C)(ii) ; 8 C.F.R. §§ 1003.23(b)(4)(i), 1208.4(b)(3)(ii). The IJ denied Sharif's motion to reopen, finding that he failed to demonstrate a material change in country conditions since his 2008 removal order, and Sharif appealed to the BIA. While his appeal to the BIA was pending, Sharif filed a motion to remand to the IJ based on new evidence—an affidavit from Sharif's sister—not available at the time of the original filing of his motion to reopen. Considering the motions together, see 8 C.F.R. § 1003.2(c)(4), the BIA affirmed the IJ's denial of Sharif's motion to reopen and denied the motion to remand because Sharif had failed to demonstrate a material change in country conditions.

Sharif timely petitioned this court for review. See 8 U.S.C. § 1252(b)(1). In response, the Government moved to dismiss for lack of jurisdiction because Sharif was subject to removal as a criminal alien. See id. § 1252(a)(2)(C). We ordered the motion to dismiss to be taken with the case for consideration with the merits of Sharif's petition.

II.

Sharif argues that the BIA abused its discretion in affirming the IJ's denial of his motion to reopen because he failed to show a material change in country conditions, erred in applying its own evidentiary standards, abused its discretion in denying his motion to remand in light of new evidence, and violated his due process rights by failing to consider evidence and arguments raised in his petition. In response, the Government contends that we lack jurisdiction to review any of Sharif's claims and, in any event, that Sharif's contentions lack merit.

A motion to reopen generally must be filed within ninety days of a final order of removal. Martinez v. Lynch , 785 F.3d 1262, 1265 (8th Cir. 2015). As a result, Sharif's motion, filed roughly a decade after his final order of removal, was untimely. But the "untimeliness of a motion to reopen may be excused if a petitioner shows changed country conditions based on evidence not previously available and if he makes a prima facie showing that, if reopened, his case would lead to relief." Rivera-Guerrero v. Barr , 926 F.3d 1050, 1052 (8th Cir. 2019) (per curiam) (citing 8 C.F.R. § 1003.2(c)(3)(ii) ); see also Go v. Holder , 744 F.3d 604, 607-09 (9th Cir. 2014) (holding that the requirements of 8 C.F.R. § 1003.2 are applicable to motions to reopen CAT claims). The moving party "bears a heavy burden" to demonstrate why the case should be reopened. Hernandez-Moran v. Gonzales , 408 F.3d 496, 499 (8th Cir. 2005). The question when such a motion is filed is not whether the petitioner may have initially qualified for the requested relief, but whether, having failed to secure that relief during the initial proceeding, he has demonstrated a change in country conditions since his initial hearing that materially affects his claim to relief. Zeah v. Lynch , 828 F.3d 699, 704 (8th Cir. 2016). In determining whether there has been a material change in country conditions, the BIA "compares the evidence of country conditions submitted with the motion to reopen to those that existed at the time of the merits hearing below." Id. at 703 (brackets omitted).

"We review both the denial of a motion to remand and the denial of a motion to reopen for abuse of discretion." Caballero-Martinez v. Barr , 920 F.3d 543, 549 (8th Cir. 2019). "The BIA abuses its discretion if its decision is without rational explanation, departs from established policies, invidiously discriminates against a particular race or group, or where the agency fails to consider all factors presented by the alien or distorts important aspects of the claim." Id. "We generally review the BIA's decision as the final agency action," but where "the BIA essentially adopted the IJ's opinion while adding some of its own reasoning, we review both decisions." Garcia v. Holder , 746 F.3d 869, 872 (8th Cir. 2014).

If, however, the petitioner is a criminal alien under 8 U.S.C. § 1252(a)(2)(C), our jurisdiction to review final orders of removal and denials of motions to reopen final orders of removal "is limited to constitutional claims and questions of law." Hanan v. Mukasey , 519 F.3d 760, 763 (8th Cir. 2008) ; 8 U.S.C. § 1252(a)(2)(D). We review the BIA's legal determinations "de novo, according substantial deference to the BIA's interpretation of the statutes and regulations it administers." Martinez , 785 F.3d at 1265.

Sharif was found removable for having been convicted of a controlled substance offense (an aggravated felony) and crimes of moral turpitude, he conceded the charges at his initial removal proceedings, and he does not disagree that the criminal-alien bar applies in this case.¹ Thus, at least concerning Sharif's claims for asylum and withholding of removal, "[w]e lack jurisdiction to review factual findings" and may only review constitutional claims or questions of law. Hanan , 519 F.3d at 763.

In evaluating whether a petition raises a constitutional claim or question of law, we look to the "nature of the argument advanced in the petition." Purwantono v. Gonzales , 498 F.3d 822, 824 (8th Cir. 2007). We have jurisdiction to review pure questions of law, such as the definition of a statutory term. Cherichel v. Holder , 591 F.3d 1002, 1009 (8th Cir. 2010) ("[D]efining the correct legal standard ... is a question of law ...."); Hanan , 519 F.3d at 764 (reviewing criminal alien's claim that BIA misinterpreted the term "acquiescence" in its CAT analysis); see also Luhiso v. Barr , 787 F. App'x 319, 321-23 (6th Cir. 2019) (addressing the merits of the argument that the BIA erred by treating a changed country condition as a changed personal circumstance). In addition, the Supreme Court recently clarified that we have jurisdiction to review mixed questions of law and fact, including the proper "application of a legal standard to undisputed or established facts." Guerrero-Lasprilla v. Barr , 589 U.S. ––––, 140 S. Ct. 1062, 1067, 206 L.Ed.2d 271 (2020).

Nonetheless, this jurisdictional limitation on our review does not apply to Sharif's CAT claim. Just a few weeks ago, the Supreme Court determined that "[a] CAT order is not itself a final order of removal," and as a result, § 1252(a)(2)(C)-(D) does not divest the courts of appeals of jurisdiction to review factual challenges to CAT orders. Nasrallah v. Barr , 590 U.S. ––––, 140 S. Ct. 1683, 1691, 1694, ––– L.Ed.2d –––– (2020). Accordingly, we review the BIA's denial of Sharif's motion to reopen his CAT claim for abuse of discretion. See Mwangi v. Barr , 934 F.3d 818, 819 (8th Cir. 2019).

A.

With these considerations in mind, we determine that we lack jurisdiction to review the vast majority of Sharif's arguments concerning his motion to reopen his asylum and withholding of removal claims because they merely constitute a brief in opposition to the BIA's factual findings. Sharif contends that the BIA mischaracterized the evidence in the record regarding Al-Shabaab's capabilities, ignored and distorted evidence of Al-Shabaab's operational focus, ignored evidence of the formation of ISIS-Somalia, and equated two distinct Somali governmental bodies. Put differently, Sharif does not assert that the facts as found by the BIA, taken on their own terms, are legally sufficient to constitute a change in country conditions that materially affects his eligibility for asylum or withholding of removal. Thus, Sharif's argument concerning changed country conditions is aimed directly at the agency's factual determinations.

We reach this...