Wambura v. Barr

• Citation: 980 F.3d 365
• Decision Date: 13 November 2020
• Docket Number: No. 19-1360,19-1360
• Parties: Mokorya Cosmas WAMBURA, Petitioner, v. William P. BARR, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

980 F.3d 365

Mokorya Cosmas WAMBURA, Petitioner,

v.William P. BARR, Attorney General, Respondent.

No. 19-1360

United States Court of Appeals, Fourth Circuit.

Argued: September 11, 2020

Decided: November 13, 2020

ARGUED: Jeffrey A. Clair, LAW OFFICES OF JEFFREY CLAIR, Washington, D.C., for Petitioner. Gregory A. Pennington, Jr., UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Joseph H. Hunt, Assistant Attorney General, Carl McIntyre, Assistant Director, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Before HARRIS, RICHARDSON, and QUATTLEBAUM, Circuit Judges.

Petition for review granted in part, denied in part and remanded by published opinion. Judge Quattlebaum wrote the opinion, in which Judge Richardson joined. Judge Harris wrote a concurring opinion.

QUATTLEBAUM, Circuit Judge:

In this appeal, we are presented with two questions related to aliens seeking protection under the United States immigration laws. First, once the requirements for removability are met, does the government have the burden to prove that the amount of loss caused by the alien's fraud conviction is $10,000 or more for purposes of an alien's eligibility for asylum and withholding of removal under the Immigration and Nationality Act ("INA"), and for protection under the Convention Against Torture ("CAT")? Second, does 8 U.S.C. § 1229a(c)(4)(B) require an immigration judge ("IJ") to: (1) provide an alien with advanced notice of the need to offer corroborating evidence, and (2) make a finding as to whether such corroborating evidence was reasonably available if the needed corroborating evidence was not provided?

As to the first question, we conclude the burden of proof lies not with the government, but with the alien seeking relief from removal. As to the second, we conclude that advanced notice is not required, but that the IJ must make a finding on the availability of corroborating evidence as described below. Therefore, for the following reasons, we grant in part and deny in part the petition for review, and remand for further proceedings consistent with this opinion.

I.

Mokorya Cosmas Wambura ("Wambura") is a native and citizen of Tanzania. He was admitted lawfully to the United States on a student visa and later became a lawful permanent resident in 2005. Approximately eight years later, Wambura was charged with various crimes related to a conspiracy to fraudulently secure a residential mortgage loan and obtain federally subsidized rent using a stolen identity. Under this scheme, Wambura secured a mortgage in the amount of $375,000, and collected $29,186 in rent. Wambura ultimately pled guilty to conspiracy to commit wire fraud, aggravated identity theft and conspiracy to commit wire and mail fraud. He was sentenced to 60 months in prison and ordered to pay $434,867.65 in restitution.

Under the INA, a lawful permanent resident can be removed if convicted of certain crimes. 8 U.S.C. § 1227(a)(2). After Wambura completed his sentence, the Department of Homeland Security ("DHS") commenced removal proceedings against him based on his prior convictions. More specifically, the DHS charged that Wambura should be removed for two independent reasons: (1) he had been convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct and (2) he had been convicted of an aggravated felony as defined in 8 U.S.C. § 1101(a)(43)(M) relating to an offense that involves fraud or deceit in which the loss to the victims exceeds $10,000. A.R. 427–29.¹

Wambura, in turn, applied for asylum and withholding of removal under the INA and for protection under CAT. In seeking this relief, he claimed that he would be tortured if he returned to Tanzania because of his membership and role in Chadema, an opposition political party in that country. Wambura also applied for cancellation of removal.

Wambura appeared at the removal hearing pro se although the IJ continued the hearing date several times to allow Wambura the opportunity to obtain counsel. The IJ concluded that Wambura was removable based on his aggravated felony and crime involving moral turpitude convictions and, because of those same convictions, he was ineligible for cancellation of removal or asylum.

At a subsequent hearing to consider Wambura's application for withholding of removal and protection under CAT, the IJ determined that, due to the length of his sentence under these convictions, Wambura was also ineligible for withholding of removal under either CAT or the INA. Thus, the only relief he could pursue was a deferral of removal under CAT.

Pursuing such relief, Wambura testified that, while in the United States, he participated in activities involving Chadema. He explained his activities included serving as a leader in Chadema USA, organizing and participating in a demonstration protesting election results in Tanzania and writing letters to the United Nations and a blog about human rights violations in Tanzania. He testified that he believed that if returned to Tanzania, he would be tortured because of his relationship with Chadema. At the hearing, he acknowledged that his participation ended over five years ago when his prison sentence began. But Wambura claimed that his father recently told him he is being followed by the secret police in Tanzania.

The issue of corroborating evidence arose at the hearing. The IJ asked Wambura if he had evidence corroborating his testimony. He claimed he was unable to provide it since he was unable to access his email account.

Orally and in a written order, the IJ denied all claims. She went through the evidence presented by Wambura and other materials he submitted in support of his claims that he would be tortured if he returned to Tanzania. The IJ noted that it was Wambura's burden to prove that he is eligible for deferral of removal under CAT, but ultimately she concluded that his position was "totally and completely based on speculation." J.A. 14. She stated that Wambura has made "absolutely no showing that these past affiliations, which are now half a decade old, could cause the respondent any problems if he is returned to his home country." J.A. 15. She gave Wambura a "mixed credibility finding" and determined that Wambura had not set forth any credible reasons to support his contention that, if he is returned, he will be harmed and tortured. The IJ also addressed Wambura's failure to produce corroborating evidence. She noted that while Wambura indicated that his father told him he was being followed by the secret police, there was no letter from the father or information to corroborate Wambura's contentions. She noted that no local Chadema members testified or offered statements, letters or affidavits in support of Wambura's contentions.

Wambura appealed the IJ's decision to the Board of Immigration Appeals ("BIA"). The BIA affirmed and dismissed Wambura's appeal, finding Wambura removable and ineligible for asylum or withholding of removal. The BIA affirmed the IJ's determination on removability based on Wambura's conviction for an aggravated felony and concluded there was sufficient evidence of loss to the victims of over $10,000. It further noted the IJ's finding that Wambura was also removable for having been convicted of two crimes of moral turpitude not arising out of a single scheme of criminal conduct but explained that Wambura waived any challenge to that determination by failing to appeal it. The BIA then determined that the IJ did not make an explicit credibility finding and thus assumed Wambura's credibility for purposes of his appeal. Even assuming credibility, the BIA affirmed the IJ's denial of Wambura's application for deferral of removal under CAT because Wambura failed to meet his burden that it was more likely than not he would be tortured upon return to Tanzania.

After the BIA dismissed his appeal, Wambura timely petitioned for judicial review of the BIA's decision. We have jurisdiction to review final orders of the BIA pursuant to 8 U.S.C. §§ 1252(a)(1) and (a)(2)(D). See Huaman-Cornelio v. Bd. of Immigration Appeals , 979 F.2d 995, 999 (4th Cir. 1992) (final orders in deportation proceedings come from the BIA, the highest administrative tribunal, and, thus, the court of appeals reviews the findings and order of the BIA); see also Nasrallah v. Barr , ––– U.S. ––––, 140 S. Ct. 1683, 1688, 207 L.Ed.2d 111 (2020) (confirming our jurisdiction to consider legal and factual challenges to the denial of relief under CAT).²

II.

We first address Wambura's argument that the government bore the burden of establishing the amount of the loss to the victims of the "aggravated felony" that the IJ determined barred Wambura's claims for relief from removal under the INA and CAT.³ He argues the amount of the restitution order established by the plea agreement failed to satisfy this burden. In support of this argument, he relies on Nijhawan v. Holder , where, in reviewing a determination by the BIA that the petitioner committed an aggravated felony as defined in 8 U.S.C. § 1101(a)(43)(M)(i) and thus was removable, the Supreme Court held that the government has the burden to show the amount of loss by clear and convincing evidence. Nijhawan v. Holder , 557 U.S. 29, 42, 129 S.Ct. 2294, 174 L.Ed.2d 22 (2009).

Wambura's reliance on Nijhawan is misplaced. He is right that the government has the burden of establishing by clear and convincing evidence that an alien is removable in the first place, including the amount of loss involved in an aggravating felony that serves as the basis for the removal. 8 U.S.C. § 1229a(c)(3)(A). But while that was the issue in Nijhawan , it is not the issue here.

Here, the DHS charged that Wambura was removable because he had been convicted of two crimes involving moral turpitude, and an "aggravated felony" which includes "an offense that ... involves fraud or deceit in which the loss to the...