Khan v. Garland ( 2021 )

Case: 21-60372 Document: 00516086751 Page: 1 Date Filed: 11/09/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
___________
FILED
November 9, 2021
No. 21-60372
___________ Lyle W. Cayce
Clerk
Ahsan Habib Khan,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
______________________________
Petition for Review of an Order of the
Board of Immigration Appeals
Agency No. A213 195 895
______________________________
Before Elrod, Oldham,* and Wilson, Circuit Judges.
Per Curiam:**
Ahsan Habib Khan, a native and citizen of Bangladesh, applied for
asylum, withholding of removal, and relief under the Convention Against
Torture (CAT). An Immigration Judge (IJ) denied his applications, and
Khan appealed that decision to the Board of Immigration Appeals (BIA).
*
Judge Oldham would grant the motion for summary disposition.
**
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 21-60372 Document: 00516086751 Page: 2 Date Filed: 11/09/2021
No. 21-60372
Khan now requests that we review the BIA’s dismissal of his appeal. The
government has moved for summary disposition, arguing that Khan failed to
present the issues he raises here before the BIA, thereby forfeiting them. We
agree that Khan’s contentions are unavailing because we have no jurisdiction
to entertain claims that petitioners fail to exhaust administratively under
8 U.S.C. § 1252(d). Omari v. Holder, 562 F.3d 314, 318 (5th Cir. 2009).
Nevertheless, summary disposition is inappropriate here.
Summary disposition is appropriate in very limited circumstances,
generally when the motion for such goes unopposed. As we have often said
before, “[t]he summary affirmance procedure is generally reserved for cases
in which the parties concede that the issues are foreclosed by circuit
precedent.” United States v. Oduu, 564 F. App’x 127, 129 (5th Cir. 2014).
When the party adverse to the motion for summary disposition opposes the
motion, that party presumably does not concede that the issues are
foreclosed, even though governing precedent might very well dictate the
eventual outcome sought by the moving party. See Vasquez-Hernandez v.
Holder, 542 F. App’x 382, 383 (5th Cir. 2013) (noting that petitioner
“opposes the motion” and concluding that “[s]ummary disposition is not
appropriate in this case” even though respondent had argued—correctly—
that petitioner’s “issues [were] foreclosed” by circuit precedent); see also,
e.g., United States v. Monshizadeh, 679 F. App’x 359, 360 (5th Cir. 2017) (“In
this appeal, Monshizadeh does not concede that the first issue he raises is
foreclosed and opposes the Government’s motion for summary affirmance.
Therefore, we deny the Government’s motion for summary
affirmance[] . . . .”).
Here, Khan has filed a response opposing the government’s motion
for summary disposition. In consideration of Khan’s opposition, we
conclude that summary disposition is not appropriate. However, because
Khan’s “initial brief, the government’s motion, and [Khan’s] response
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Case: 21-60372 Document: 00516086751 Page: 3 Date Filed: 11/09/2021
No. 21-60372
adequately address the parties’ positions,” we elect to deny Khan’s petition
without further briefing. Banaga-Alcaraz v. Lynch, 628 F. App’x 332, 333 (5th
Cir. 2016); see also, e.g., United States v. Ramirez, 845 F.3d 578, 579 (5th Cir.
2016); Torres-Ortega v. Holder, 543 F. App’x 473, 475 (5th Cir. 2013); United
States v. Davis, 454 F. App’x 383, 385 (5th Cir. 2011); United States v. Eddins,
451 F. App’x 395, 397 (5th Cir. 2011); United States v. Newman, 453 F. App’x
478, 479 (5th Cir. 2011); Zamora-Garcia v. Gonzales, 161 F. App’x 397 (5th
Cir. 2006).
For the foregoing reasons, we DENY the government’s opposed
motion for summary disposition, DISPENSE with further briefing, and
DENY Khan’s petition for review.
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