Unuakhaulu v. Gonzales, 02-73837.

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: Fisher
• Citation: 416 F.3d 931
• Parties: Ehi Joseph UNUAKHAULU, Petitioner, v. Alberto R. GONZALES,<SMALL><SUP>*</SUP></SMALL> Attorney General, Respondent.
• Docket Number: No. 02-73837.,02-73837.
• Decision Date: 20 December 2004

416 F.3d 931 Ehi Joseph UNUAKHAULU, Petitioner,
v.
Alberto R. GONZALES,^* Attorney General, Respondent. No. 02-73837. United States Court of Appeals, Ninth Circuit. Submitted November 3, 2004.^** Filed December 20, 2004. Amended February 14, 2005. Second Amendment July 18, 2005. Order Amended August 4, 2005.

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Mark A. Karlin, Karlin & Karlin, Los Angeles, CA, for the petitioner.

Francis W. Fraser, Senior Litigation Counsel, United States Department of Justice, Washington, DC, for the respondent.

Marc Van Der Hout, Van Der Hout, Brigagliano & Nightingale, LLP, San Francisco, CA, for amicus curiae National Immigration Project of the National Lawyer's Guild.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A74-777-018.

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Before: TASHIMA, FISHER and TALLMAN, Circuit Judges.

ORDER

The panel judges have voted to grant the petition for rehearing of amicus curiae National Immigration Project of the National Lawyer's Guild, filed May 2, 2005. The petition for rehearing en banc is therefore moot.

The amended opinion filed February 14, 2005, and reported at 398 F.3d 1085, is withdrawn, and is replaced by the Second Amended Opinion.

No further petitions for rehearing or rehearing en banc will be considered.

OPINION

FISHER, Circuit Judge:

Ehi Joseph Unuakhaulu, a native and citizen of Nigeria, petitions for review of the Board of Immigration Appeal's ("BIA") summary affirmance of the Immigration Judge's ("IJ") decision denying him withholding of removal and relief under the Convention Against Torture ("CAT"). The central question is whether we lack jurisdiction to review his petition where the IJ found that Unuakhaulu was removable based on his aggravated felony conviction, but neither ordered him removed on that basis nor relied on the aggravated felony conviction in denying Unuakhaulu's application for withholding of removal and for relief under CAT. We conclude that 8 U.S.C. § 1252(a)(2)(C) divests us only of jurisdiction to review orders of removal that are actually based on a petitioner's prior aggravated felony conviction.¹ We therefore have jurisdiction to review the BIA's nondiscretionary denial of withholding, which was not predicated on Unuakhaulu's aggravated felony. Reaching the substance of Unuakhaulu's petition, however, we deny it as without merit.

I.

Unuakhaulu was admitted to the United States as a visitor on January 17, 1986. In February 1997, he was convicted of conspiracy to traffic in counterfeit credit cards in violation of 18 U.S.C. § 371 and sentenced to 18 months in prison. Thereafter, the former Immigration and Naturalization Service initiated proceedings against Unuakhaulu, charging him with (1) being subject to removal as an alien convicted of an aggravated felony, see § 1227(a)(2)(A)(iii),² and (2) as an alien who remained as a visitor beyond the time authorized, see § 1227(a)(1)(B). As shown in the transcript of the merits hearing, the IJ sustained the charges against him, finding that Unuakhaulu's prior conviction for credit card fraud was an aggravated felony and that he had remained as a visitor in the United States beyond the time authorized. Unuakhaulu then applied for withholding of removal and for relief under CAT.

Subsequently, the government contended that even though Unuakhaulu received only 18 months' imprisonment for his prior conviction, his credit card fraud was a "particularly serious crime" that should make him ineligible for withholding of removal under § 1231(b)(3)(B). The IJ disagreed,

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finding that the crime was not particularly serious and that Unuakhaulu was eligible for withholding of removal.

As to the merits of his withholding of removal claim, Unuakhaulu sought withholding based on his membership in the Ogoni tribe in Nigeria. According to his testimony, the Nigerian government engaged in tribal genocide of the Ogoni people, seizing their land in the delta region for its oil and arresting and executing Ogonis solely because of their opposition to the government. He claimed that the Nigerian government seized his father's land in 1987.

Unuakhaulu provided no evidence to corroborate his claim that he was a member of the Ogoni tribe. He acknowledged that he was not a member of any Ogoni organization in the United States. He said that he had friends who were members of the Ogoni tribe in the Los Angeles area (where the hearing took place) who perhaps could have corroborated his tribal membership, but he did not ask any of them to testify on his behalf.

Unuakhaulu's mother lives in Lagos, Nigeria, but has not suffered any persecution on account of her Ogoni membership. His seven siblings left Nigeria because of the treatment of the Ogoni. His uncle, a leader of the Movement to Save the Ogoni People, was imprisoned in 1994 because he fought for Ogoni rights and protested the government's seizure of Ogoni land and its arrest and torture of the Ogoni people. His uncle is still in prison, although Unuakhaulu did not know where. He claimed that his uncle is mentioned in an Amnesty International report that was in evidence, but he provided no documentation to corroborate that the person mentioned in the report was indeed his uncle.

Unuakhaulu admitted that he was not politically active when he lived in Nigeria. When asked if there was any way the Nigerian government could identify him in order to subject him to persecution or torture, Unuakhaulu conceded that "[b]ecause I am not politically involved with any organization, there is no way of identifying me."

The IJ denied Unuakhaulu's application for withholding of removal and for relief under CAT, and ordered Unuakhaulu removed. The order of removal³ provided: "It is hereby ordered that the respondent's application for withholding of removal to Nigeria and relief under the Torture Convention be denied. It is further ordered that the respondent be removed from the United States to Nigeria." [AR 56.] The IJ did not state the basis upon which Unuakhaulu was being ordered removed and did not refer to either of the two charges in the Notice to Appear — (1) being subject to removal as an alien convicted of an aggravated felony, see § 1227(a)(2)(A)(iii), or (2) as an alien who remained as a visitor beyond the time authorized, see § 1227(a)(1)(B). Unuakhaulu appealed the IJ's decision denying him withholding of removal and relief under CAT to the BIA, which dismissed his appeal without an opinion. Unuakhaulu now timely petitions this court for review of the BIA's order.

II.

The initial question is whether § 1252(a)(2)(C) divests this court of jurisdiction to review the BIA's order of removal

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and denial of withholding. The government argues that it does. We have jurisdiction "to determine whether jurisdiction exists." Matsuk v. INS, 247 F.3d 999, 1000-01 (9th Cir.2001) (quoting Flores-Miramontes v. INS, 212 F.3d 1133, 1135 (9th Cir.2000)).

Section 1252(a)(2)(C) is a jurisdiction-stripping provision that precludes our "review [of] any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in section ... 1227(a)(2)(A)(iii)...." Section 1227(a)(2)(A)(iii) in turn specifies that "[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable [i.e., removable]."⁴ Nonetheless, an alien such as Unuakhaulu deemed removable because of his aggravated felony may in limited circumstances still be eligible for withholding of removal if the aggravated felony is not a "particularly serious crime." See § 1231(b)(3)(B)(ii).

For purposes of determining whether the § 1231(b)(3)(B)(ii) exception applies, the statute construes "particularly serious crime" differently depending upon the type of relief being sought. In the context of asylum, a person convicted of an aggravated felony "shall be considered to have been convicted of a particularly serious crime," and is thus automatically barred from asylum relief in removal proceedings. See §§ 1158(b)(2)(A)(ii), (B)(i); United States v. Corona-Sanchez, 291 F.3d 1201, 1210 n. 8 (9th Cir.2002) (en banc) (noting that aggravated felons are "barred from eligibility for asylum" under §§ 1158(b)(2)(A)(ii), (B)(i)).⁵ In the context of withholding of removal, however, the bar to relief is more narrowly construed: an aggravated felony conviction is considered to be a particularly serious crime (1) automatically, if the applicant was sentenced "to an aggregate term of imprisonment of at least five years"; or (2) if the Attorney General, in his discretion, determines that an aggravated felony conviction resulting in a sentence of fewer than five years was in fact a particularly serious crime. See § 1231(b)(3)(B). We lack jurisdiction to review the latter denial of withholding based upon this exercise of the Attorney General's discretion. Matsuk, 247 F.3d at 1002. In Matsuk, however, we left open the "still narrower question" of whether the court has jurisdiction to review "non-discretionary denials of withholding" — that is, a...