Hussein A.H.A. Al-Shishani v. U.S. Atty. Gen. ( 2009 )

  •                                                              [DO NOT PUBLISH]
                        FOR THE ELEVENTH CIRCUIT
                          ________________________                   FILED
                                                            U.S. COURT OF APPEALS
                                No. 08-15750                  ELEVENTH CIRCUIT
                                                                  JUNE 29, 2009
                            Non-Argument Calendar
                                                               THOMAS K. KAHN
                            Agency No. A078-741-716
                      Petition for Review of a Decision of the
                           Board of Immigration Appeals
                                (June 29, 2009)
    Before BLACK, BARKETT and WILSON, Circuit Judges.
          Petitioner Hussein Abdual Hadi Ahmad Al-Shishani, proceeding pro se,
    seeks review of the Board of Immigration Appeals’ (“BIA”) decision affirming the
    Immigration Judge’s (“IJ”) order finding him removable, dismissing his
    application for asylum, and denying both his application for withholding of
    removal under the Immigration and Nationality Act (“INA”) and relief under the
    United Nations Convention Against Torture and Other Cruel, Inhuman, or
    Degrading Treatment or Punishment (“CAT”).
          On appeal, Al-Shishani argues, first, that we should waive the one-year
    deadline for filing an asylum application, due to extraordinary circumstances.
    Second, Al-Shishani argues that his hearing before the IJ was fundamentally unfair
    because (i) the IJ was biased against him; (ii) he was not notified of a change in the
    asylum hearing date; (iii) he was not properly served with a notice to appear
    (“NTA”); (iv) he was physically and mentally ill during the hearing; and, (v) the
    interpreter was inadequate. Third, he challenges the BIA’s denial of his second
    motion to extend the briefing deadline and its refusal to accept his late-filed brief.
    Finally, he challenges the IJ’s adverse credibility finding and the denial of his
    withholding of removal and CAT claims.
          We review our subject matter jurisdiction de novo. Frech v. U.S. Att’y Gen.,
    491 F.3d 1277
    , 1280 (11th Cir. 2007). An alien can apply for asylum if he
    “demonstrates by clear and convincing evidence that the application has been filed
    within [one] year after the date of the alien's arrival in the United States.” 8 U.S.C.
    § 1158(a)(2)(B). The BIA may consider a late application “if the alien
    demonstrates . . . either the existence of changed circumstances which materially
    affect the applicant’s eligibility for asylum or extraordinary circumstances relating
    to the delay in filing an application within [one year].” 8 U.S.C. § 1158(a)(2)(D).
          Section 1158(a)(3), however, divests us of jurisdiction to review any such
    determination. 8 U.S.C. § 1158(a)(3) (“No court shall have jurisdiction to review
    any determination . . . under paragraph (2).”); Mendoza v. U.S. Att’y Gen., 
    327 F.3d 1283
    , 1287 (11th Cir. 2003). In addition, we have held that § 106(a)(1)(A)(ii)
    of the REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231, 310, which
    amended the INA to provide for appellate jurisdiction over “constitutional claims
    or questions of law,” did not affect our prior precedent addressing our jurisdiction
    to review untimely applications. See Chacon-Botero v. U.S. Att’y Gen., 
    427 F.3d 954
    , 957 (11th Cir. 2005) (per curiam); 8 U.S.C. § 1252(a)(2)(D).
          Here, Al-Shishani did not file his asylum application for sixteen years, and
    neither the IJ nor the BIA found that he had demonstrated an extraordinary
    circumstance to warrant such a delay. Because we lack jurisdiction to consider Al-
    Shishani’s untimely asylum claim, we dismiss his petition in this respect.
          As noted above, we review our subject matter jurisdiction de novo. Frech,
    491 F.3d at 1280. Furthermore, we “must inquire into subject matter jurisdiction
    sua sponte whenever it may be lacking.” Hernandez v. U.S. Att’y Gen., 
    513 F.3d 1336
    , 1339 (11th Cir. 2008) (per curiam), cert. denied, 
    129 S. Ct. 44
    “[A]bsent a cognizable excuse or exception, we lack jurisdiction to consider a
    claim raised in a petition for review unless the petitioner has exhausted his
    administrative remedies with respect thereto.” Amaya-Artunduaga v. U.S. Att’y
    463 F.3d 1247
    , 1250 (11th Cir. 2006) (per curiam) (internal quotation marks
    and citation omitted). This requirement ensures that the BIA has a full opportunity
    to consider “the niceties and contours of the relevant arguments.” Id. at 1250.
          While constitutional challenges to the INA procedures and some due process
    claims may not require exhaustion if the BIA did not “have the power to adjudicate
    those claims,” where the BIA can remedy the constitutional claim, “the exhaustion
    requirement applies with full force.” Sundar v. INS, 
    328 F.3d 1320
    , 1325 (11th
    Cir. 2003) (holding that an alien should have exhausted his due process claim that
    the IJ’s and BIA’s application of an immigration statute violated the Constitution
    because “[i]t was within the BIA’s authority to reconsider and change its
          When jurisdiction is present, we review constitutional challenges de novo.
    Ali v. U.S. Att’y Gen., 
    443 F.3d 804
    , 808 (11th Cir. 2006) (per curiam). “[T]he
    Fifth Amendment entitles aliens to due process of law in deportation proceedings.”
    Reno v. Flores, 
    507 U.S. 292
    , 306, 
    113 S. Ct. 1439
    , 1449 (1993). Accordingly,
    aliens must receive “notice and an opportunity to be heard in their removal
    proceedings.” Fernandez-Bernal v. U.S. Att’y Gen., 
    257 F.3d 1304
    , 1310 n.8 (11th
    Cir. 2001). To prevail on a due process challenge, however, an alien must show
    substantial prejudice – namely, that the outcome would have differed “in the
    absence of the alleged procedural deficiencies.” Patel v. U.S. Att’y Gen., 
    334 F.3d 1259
    , 1263 (11th Cir. 2003).
          We lack jurisdiction over Al-Shishani’s claims that the IJ was biased against
    him and that he was not notified of a change in the asylum hearing date because he
    did not exhaust these arguments in his notice of appeal to the BIA. These claims
    constitute due process claims within the scope of the BIA’s authority. It was
    within the BIA’s authority to review the transcript of the asylum hearing,
    determine whether the IJ’s actions demonstrated bias against Al-Shishani and in
    favor of the government, or that he did not receive adequate notice of the date
    change, and if so, to remand the matter for a new hearing. Accordingly, we
    dismiss his petition in this respect.
          With regard to Al-Shishani’s remaining due process claims – that he was not
    properly served with a NTA, that he was ill during the asylum hearing, and that his
    interpreter was inadequate – he has failed to show how these alleged deficiencies
    prejudiced his case. First, he did, in fact, appear at the initial removal proceeding.
    Second, the IJ granted at least six continuances during the ensuing ten months
    before the asylum hearing to ensure that Al-Shishani had sufficient time to prepare
    his case. Al-Shishani has not explained what he would have done differently but
    for his illness. Finally, he has not identified any specific mistranslations. Thus, we
    deny Al-Shishani’s petition in this respect.
          “[N]o court shall have jurisdiction to review . . . any other decision or action
    of the Attorney General . . . the authority for which is specified under this
    subchapter to be in the discretion of the Attorney General. . . .” 8 U.S.C.
    § 1252(a)(2)(B)(ii). “The phrase ‘specified under this subchapter’ refers to
    subchapter II of Chapter 12, 8 U.S.C. §§ 1151-1378.” Zafar v. U.S. Att’y Gen.,
    461 F.3d 1357
    , 1361 (11th Cir. 2006).
          By contrast, we have jurisdiction to review discretionary decisions which are
    governed by federal regulations. Id. Such decisions are reviewed for abuse of
    discretion. Id. at 1364. The BIA abuses its discretion when its decision is arbitrary
    and capricious. Montano Cisneros v. U.S. Att’y Gen., 
    514 F.3d 1224
    , 1226 (11th
    Cir. 2008) (citation omitted).
          Under the federal regulations, an alien in custody generally has 21 days in
    which to file a brief to the BIA, but, “upon written motion, [the BIA] may extend
    the period for filing a brief or a reply brief for up to 90 days for good cause
    shown.” 8 C.F.R. § 1003.3(c)(1). Furthermore, “[i]n its discretion, the [BIA] may
    consider a brief that has been filed out of time.” Id. “In the interests of fairness
    and the efficient use of administrative resources,” extension requests are
    disfavored. See BIA Practice Manual, § 4.7(c)(i). Accordingly, it is the BIA’s
    policy to grant a first briefing extension, but to only grant second requests “in rare
    circumstances.” Id. at § 4.7(c)(i)(A). Likewise, the BIA only will consider
    allowing a late-filed brief if it is accompanied by a motion that “set[s] forth in
    detail the reasons for the untimeliness” and is supported by “affidavits,
    declarations, or other evidence.” See Id. at § 4.7(d). Even then, it “rarely”
    considers the motion. Id.
          As an initial matter, we have jurisdiction to review denials of motions to
    extend the briefing deadline because they are governed by the federal regulations.
    Nevertheless, the BIA did not abuse its discretion by denying Al-Shishani’s second
    request to extend the briefing deadline. The BIA’s policy of denying second
    requests “in the interests of fairness and the efficient use of administrative
    resources” is not arbitrary and capricious, and Al-Shishani has failed to show how
    his request satisfied the “rare circumstances” exception. Likewise, the BIA did not
    abuse its discretion by refusing to accept Al-Shishani’s untimely brief because its
    policy of requiring petitioners to explain the reasons for the untimeliness in a
    motion supported by evidence is not arbitrary and capricious. Moreover, the
    record does not reflect that he filed such a motion. Accordingly, we deny the
    petition in this respect.
           Where the BIA addresses, sua sponte, issues – such as the propriety of an
    adverse credibility finding, or the denial of withholding of removal and CAT
    claims on the merits – that an alien does not exhaust in his notice of appeal or
    supporting brief, we “cannot say the BIA fully considered the petitioner’s claims,
    as it had no occasion to address the relevant arguments. . . .” Amaya-Artunduaga,
    463 F.3d at 1250-51. Accordingly, we lack jurisdiction to review such arguments
    on appeal. Id.
           Here, the BIA addressed the IJ’s adverse credibility determination and the
    substantive denial of Al-Shishani’s withholding of removal and CAT requests sua
    sponte, but we cannot say that it fully considered the relevant arguments.
    Accordingly, we lack jurisdiction to review these unexhausted issues on appeal,
    and we dismiss the petition in this respect.
          Upon review of the record and the parties’ briefs, we discern no reversible
    error. Accordingly, we dismiss in part and deny in part the petitioner’s petition for