Zine v. Mukasey

• Decision Date: 19 February 2008
• Docket Number: No. 06-4127.,No. 06-3002.,06-3002.,06-4127.
• Citation: 517 F.3d 535
• Parties: L'Aid ZINE, also known as Hafed Benchellali, Petitioner, v. Michael B. MUKASEY,<SMALL><SUP>1</SUP></SMALL> Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

517 F.3d 535

L'Aid ZINE, also known as Hafed Benchellali, Petitioner, v. Michael B. MUKASEY,¹ Respondent.

No. 06-3002.

No. 06-4127.

United States Court of Appeals, Eighth Circuit.

Submitted: October 15, 2007.

Filed: February 19, 2008.

Benjamin R. Casper, argued, West St. Paul, MN, for appellant.

Andrew J. Oliveira, argued, U.S. Dept. of Justice, Office of Immigration Litigation, Washington, DC, for appellee.

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

LOKEN, Chief Judge.

L'Aid Zine, a native and citizen of Algeria, fled that country in April 1996 and later used a fraudulent French passport to enter the United States under the Visa Waiver Program ("VWP"). Zine filed an application for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT") on July 21, 2000. After six hearings over a three-year period, the immigration judge ("IJ") denied the application, finding that Zine's testimony was not credible and therefore he failed to prove that he applied for asylum within one year of arriving in the United States, or that he is eligible for asylum, withholding of removal, or CAT relief. The Board of Immigration Appeals (BIA) affirmed and then denied Zine's timely motion to reconsider or reopen its decision. Zine petitions for review of both orders. We consolidated and now deny the petitions for review.

I. The Order Denying Asylum, Withholding of Removal, and CAT Relief

In support of his application, Zinc testified that he was seized by Algerian security officers in February 1992 because he sympathized with a major Islamic opposition party. Imprisoned for two years at a military detention center in the desert, Zine was exposed to harsh living conditions, beaten with rifle butts, and tortured with electric wires. After release in 1994, he was twice arrested by Algerian special forces after police officers were killed in his neighborhood; each time, he was denied food and tortured. In March 1996, Zine was conscripted into the Algerian military where he trained for twenty-five days before escaping because he feared having to kill innocent people if he stayed in the military. He made his way to Turkey by way of Tunisia, using a visitor visa and Algerian passport and intending to get to Europe and apply for asylum. Instead, he remained in Turkey for three years before a relative in Canada provided money to fly to Thailand. While in Turkey, Zine's family in Algeria received a letter from an Islamic terrorist organization threatening to kill Zine because he had briefly served in the military, and military police detained two of his brothers and told the family they were trying to capture Zine for deserting.

After arriving in Thailand, Zine purchased a fraudulent French passport bearing his photo but the name Hafed Benchellali. He testified that he destroyed his Algerian passport and flew by way of China to San Francisco, arriving on August 3, 1999, and entering under the VWP. This Program allows the Attorney General to waive the visa requirement and permit citizens of a select list of nations, including France but not Algeria, to visit the United States for up to ninety days. See 8 U.S.C. § 1187(a). After arriving, Zine destroyed the French passport and his 1-94 entry card but kept a photocopy of the portion of the 1-94 card that is retained by the entering alien. He settled in Minneapolis, overstayed the allowed VWP period, and applied for asylum. The INS issued a removal notice and placed him in an "asylum only" proceeding. See 8 U.S.C. § 1187(b); 8 C.F.R. § 1208.2.

The asylum-only hearings were repeatedly continued to allow the parties to gather additional evidence. Zine presented facsimile copies of documents from Algeria, including letters from friends and family generally supporting his testimony, a document allegedly provided upon his release from the detention center, a threat letter from a "Covenant of God" organization, and a 1996 military summons. He testified that his family mailed the originals of these documents, but they never arrived. An expert on Algeria testified that Zine's testimony was generally consistent with reports of the armed conflicts between the Algerian military and Islamic rebel groups between 1992 and 1998. Zine testified that, if he is removed to Algeria, he fears prison, torture, or death at the hands of the government based upon his perceived association with anti-government political organizations, or that he will be killed by terrorists because of his brief time in the Algerian military.

The IJ found Zine's testimony not credible. The IJ denied asylum, withholding of removal, and CAT relief "due to the negative credibility finding and the lack of objective, credible supporting documentation." The IJ also denied asylum on an additional ground—because Zine destroyed his fraudulent passport and entry card and presented no other evidence documenting his place and time of arrival, he failed to prove by clear and convincing evidence that he applied for asylum within one year after arriving in the United States. See 8 U.S.C. § 1158(a)(2)(B).

Zine timely appealed to the BIA. The notice of appeal asserted that the denial of asylum "was incorrect as a matter of law" because the IJ's adverse credibility finding lacked factual support in the record and the IJ gave inadequate weight to Zine's supporting evidence. His lengthy brief to the BIA argued that he is entitled to asylum because he presented credible, sufficient testimony and documentary evidence establishing past persecution and a well-founded fear of future persecution by the Algerian government on account of his political opinion and associations. On the untimeliness issue, Zine argued that it was error to place him in an asylum-only proceeding based upon an August 1999 VWP entry document and then find that his consistent testimony corroborating the 94 photocopy failed to prove entry within one year of his July 2000 application.

The BIA in a two-paragraph Order adopted and affirmed the decision of the IJ "that there are not exceptional circumstances sufficient to overcome [Zine's] failure to timely file his application for asylum, and that without credible testimony [Zine] is not eligible for withholding of removal or relief under the [CAT]." The BIA added that, "[w]ith respect to the adverse credibility finding, we are not persuaded that it is clearly erroneous." See 8 C.F.R. § 1003.1(d)(3)(i) (BIA standard of review).

On appeal, Zine argues that the BIA erred in concluding that the IJ's adverse credibility finding was not clearly erroneous. Therefore, he argues, we should vacate the order denying asylum and withholding of removal and remand for further agency proceedings.² The government argues that we lack jurisdiction to consider either the asylum claim or the withholding of removal claim for two distinct reasons. The argument pertaining to asylum is clearly correct. The argument pertaining to withholding of removal is more complex.

A. Asylum. The statute governing asylum provides that "[n]o court shall have jurisdiction to review any determination" denying an asylum application as untimely. 8 U.S.C. § 1158(a)(3). We have consistently held that this provision bars judicial review of the agency's resolution of the relevant issues of fact. See Bejet-Viali Al-Jojo v. Gonzales, 424 F.3d 823, 827 (8th Cir.2005) (extraordinary circumstances issue); Aden v. Ashcroft, 396 F.3d 966, 968 (8th Cir.2005) (timeliness issue). As Zine raises no colorable constitutional challenge or question of law that might avoid this jurisdictional bar, see Mouawad v. Gonzales, 485 F.3d 405, 411 (8th Cir.2007), we lack jurisdiction to review the denial of asylum.

B. Withholding of Removal. The statute governing judicial review of removal orders provides that we may review a final order of removal only if "the alien has exhausted all administrative remedies available to the alien as of right." 8 U.S.C. § 1252(d)(1). The Attorney General's regulations governing administrative appeals to the BIA provide that the alien "must specifically identify the findings of fact, the conclusions of law, or both, that are being challenged." 8 C.F.R. § 1003.3(b). Here, Zine's notice of appeal and brief to the BIA specifically challenged the denial of asylum but not the denial of withholding of removal. Accordingly, the government argues, we lack jurisdiction to consider the denial of withholding of removal because Zine failed to exhaust his administrative remedies for this claim. Zine responds that this exhaustion issue is not jurisdictional. He urges us to consider the merits of the issue because asylum and withholding of removal are specifically linked in the regulations³ and because the BIA specifically addressed withholding of removal in affirming the IJ's decision.

Resolving the parties' conflicting contentions would embroil us in unsettled questions of immigration law. Our prior decisions are inconsistent on the question whether the failure to raise an issue before the BIA is a jurisdictionally-fatal failure to exhaust an administrative remedy for purposes of 8 U.S.C. § 1252(d)(1), or simply raises the non jurisdictional question whether review of that issue is precluded by the doctrine of administrative exhaustion. Compare Sultani v. Gonzales, 455 F.3d 878, 884 (8th Cir.2006), with Frango v. Gonzales, 437 F.3d 726, 728-29 (8th Cir.2006), and Etchu-Njang v. Gonzales, 403 F.3d 577, 581-84 (8th Cir.2005). To further complicate matters, there is disagreement among our sister circuits on the related question whether a claim or issue not presented to the BIA, but considered by the BIA sua sponte, is jurisdictionally barred for failure to exhaust administrative remedies. Compare Amaya-Artunduaga v. U.S. Attorney General, 463 F.3d 1247, 1250-51 (11th Cir.2006), with Sidabutar v. Gonzales, 503 F.3d 1116, 1118-22 (10th Cir.2007). We conclude that we need not enter this thicket because the issue presented in this...