Abdulmalik Abdulla v. Attorney General United States ( 2020 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 19-1167
_____________
ABDULMALIK MAHYOUB MULHI ABDULLA,
Petitioner
v.
ATTORNEY GENERAL OF THE
UNITED STATES OF AMERICA,
Respondent
_____________
On Petition for Review of an Order of the
Board of Immigration Appeals
(No. A041-706-347)
Immigration Judge: Nelson V. Padilla
____________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
November 19, 2019
____________
Before: CHAGARES, MATEY, and FUENTES, Circuit
Judges.
(Filed: August 20, 2020)
Julie A. Goldberg, Esq.
Goldberg & Associates
5586 Broadway, 3rd Floor
Suite 716
Bronx, NY 10463
Counsel for Petitioner
Claire Workman, Esq.
Senior Litigation Counsel
Don G. Scroggin, Esq.
Trial Attorney
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Washington, DC 20044
Counsel for Respondent
____________
OPINION OF THE COURT
___________
CHAGARES, Circuit Judge.
Abdulmalik Mahyoub Mulhi Abdulla petitions for
review of the Board of Immigration Appeals’ (“BIA”) order
denying his motion for certification of late-filed appeal. After
an immigration judge (“IJ”) ordered Abdulla removed from
the United States, Abdulla had 30 days to appeal that order to
the BIA but did not do so for 78 days. Abdulla moved the
BIA to exercise its discretion to permit the late-filed appeal,
citing the exceptional circumstances presented by his appeal,
2
which raises several claims of ineffective assistance of
counsel. Because we conclude that the BIA’s discretion in
the context of this case is not cabined by law, regulation, or a
settled course of prior agency action, we lack jurisdiction to
review the BIA’s decision not to self-certify the late-filed
appeal and will dismiss the petition for review in part. We
also conclude that we lack jurisdiction to review Abdulla’s
unexhausted merits claim and non-colorable due process
claim. And because Abdulla’s other claims are unavailing,
we will deny the petition in part.
I.
Abdulla was born in Yemen in 1976 to two Yemeni
parents. In 1986, when Abdulla was nine years old, his father
became a naturalized United States citizen. Three years later,
Abdulla’s parents legally separated and then divorced.
Abdulla and his brother, Fawaz Abdulla, joined their father in
the United States in May 1990, and Abdulla became a lawful
permanent resident at that time. Abdulla contends that in that
same year, his father filed N-600 applications to naturalize
both children, but that due to former counsel’s ineffective
assistance, this documentation was not made part of the
Administrative Record. While Fawaz Abdulla received proof
of United States citizenship in 1995, Abdulla claims that his
application was never processed for reasons unknown. 1
In 2014, Abdulla was convicted of food stamp fraud,
wire fraud, and aiding and abetting, in the United States
District Court for the District of Maryland. In March 2017,
1
According to the United States Department of
Homeland Security (“DHS”), Abdulla’s N-400 naturalization
application was filed in 1996 and denied in 2009.
3
DHS issued a Notice to Appear (“NTA”) alleging that
Abdulla was not a United States citizen and that as a result of
his federal criminal convictions, he was subject to removal.
DHS served the NTA on Abdulla in January 2018. The NTA
served on Abdulla at that time did not specify the date and
time of Abdulla’s first hearing, providing only that the date
and time of the hearing remained to be set.
In Abdulla’s removal hearing before the IJ, Abdulla’s
prior counsel argued that Abdulla had acquired derivative
United States citizenship based on the law in effect at the time
of his birth, and that Abdulla therefore could not be removed
from the United States. Abdulla’s prior counsel also moved
to terminate the removal proceedings, contending that DHS
had failed to establish that Abdulla’s convictions were
aggravated felonies under the Immigration and Nationality
Act (“INA”). The motion to terminate did not, however, raise
any argument that the NTA was improper because of its
failure to provide the date and time of Abdulla’s first hearing
or that the immigration court lacked jurisdiction as a result of
Abdulla’s derivative citizenship, both of which Abdulla now
identifies as failures amounting to constitutionally ineffective
assistance of counsel. Abdulla similarly faults his prior
counsel for failing to bring any claims for relief under INA §
212(h) (waiver of inadmissibility for certain crimes).
In May 2018, the IJ denied Abdulla’s motion to
terminate and sustained the charge of removability against
Abdulla. Abdulla’s prior counsel then petitioned for asylum,
withholding of removal, and relief under the Convention
Against Torture (“CAT”) on his behalf. In his application for
asylum and withholding of removal, Abdulla explained that
he feared harm if he returned to Yemen as a result of the civil
4
war, noting specifically that the Houthi rebels are hostile
towards Sunni Muslims such as himself and that while he
opposes violence, he fears that the Yemeni military would
force him to fight.
On October 4, 2018, the IJ denied Abdulla’s petition
and ordered him removed from the United States. Abdulla’s
appeal to the BIA was due on November 5, 2018, but it was
not filed until December 21, 2018, shortly after Abdulla
retained new counsel. That appeal included both a motion for
an emergency stay of removal and a motion for certification
of Abdulla’s late-filed appeal. In support of the motion for
certification of late-filed appeal, Abdulla noted that the BIA
has previously held that where a case presents exceptional
circumstances, the BIA may certify the case to itself even
though it was filed after the deadline. Abdulla contended that
his failure to file a timely appeal occurred for reasons that
were both beyond his control and exceptional, because while
detained, he reasonably expected that his prior counsel would
act to preserve his appeal rights and that upon learning that
prior counsel had failed to do so, he acted with “speed,
diligence, and zeal” in asking new counsel to seek to
prosecute his appeal. Administrative Record 22. Abdulla
sought to present on appeal his principal argument — that he
is a United States citizen — as well as his alternative claims
to relief that he is eligible for (a) adjustment of status or
waiver of inadmissibility and (b) asylum, withholding of
removal, and CAT relief.
On January 10, 2019, the BIA, noting that the appeal
was untimely by seven weeks, found that Abdulla failed to
demonstrate exceptional circumstances for certification of the
5
appeal and accordingly dismissed the appeal. This timely
petition for review followed.
II.
The BIA had jurisdiction to hear Abdulla’s appeal
under 8 C.F.R. §§ 1003.1(b)(3) and 1240.15. As we hold
infra, we lack jurisdiction to review the BIA’s discretionary
decision to decline to self-certify Abdulla’s appeal as well as
Abdulla’s unexhausted merits claim.2 However, we do have
jurisdiction to review Abdulla’s legal claim for derivative
United States citizenship under 8 U.S.C. § 1252(b)(5). See
Espichan v. Att’y Gen., 945 F.3d 794, 796 (3d Cir. 2019).
We also have jurisdiction to review Abdulla’s legal claim that
the immigration court lacked jurisdiction to conduct the
removal proceedings because of the NTA’s failure to state the
date and time of his initial hearing. See Nkomo v. Att’y
Gen., 930 F.3d 129, 132 (3d Cir. 2019) (exercising
jurisdiction over identical claim). Finally, we have
jurisdiction to review “colorable” due process claims.
Calderon-Rosas v. Att’y Gen., 957 F.3d 378, 384 (3d Cir.
2020) (quoting Pareja v. Att’y Gen., F.3d 180, 186 (3d Cir.
2010)).
2
Although we conclude that we lack jurisdiction over
Abdulla’s challenge to the BIA’s decision not to exercise its
discretion to self-certify the late-filed appeal, we have
jurisdiction to determine our own jurisdiction. See Orie v.
Dist. Att’y Allegheny Cnty., 946 F.3d 187, 190 n.7 (3d Cir.
2019).
6
We exercise plenary review over Abdulla’s due
process claim and questions of law. Yusupov v. Att’y Gen.,
650 F.3d 968, 977 (3d Cir. 2011).
III.
Abdulla asks us to review the BIA’s decision not to
self-certify his late-filed appeal. We lack jurisdiction to do so
here.
The BIA is empowered by regulation to exercise
appellate jurisdiction over procedurally improper appeals,
where it chooses to self-certify such an appeal. See 8 C.F.R.
§ 1003.1(c) (“Jurisdiction by certification”). This regulation
provides:
The Board in its discretion may review any . . .
case [arising under its appellate jurisdiction] by
certification without regard to the provisions of
§ 1003.7 if it determines that the parties have
already been given a fair opportunity to make
representations before the Board regarding the
case, including the opportunity [to] request oral
argument and to submit a brief.
Id. (emphasis added).
The Administrative Procedure Act provides for
judicial review of final agency actions except where judicial
review is precluded by statute or where “agency action is
committed to agency discretion by law.” 5 U.S.C. § 701(a).
Agency action is deemed “committed to agency discretion by
law,” id., where a law is drawn “so that a court would have no
7
meaningful standard against which to judge the agency’s
exercise of discretion,” Heckler v. Chaney, 470 U.S. 821, 830
(1985).
Section 1003.1(c) provides that the BIA “may” self-
certify an appeal “in its discretion,” without any limiting
language, meaning that there is no standard by which we can
review the BIA’s exercise of discretion. Nor do other
regulations or statutes provide us with a benchmark for
review of this agency action. So we lack jurisdiction to
review this discretionary decision.
Abdulla contends that we can review the BIA’s
decision because in other cases, the BIA has made clear its
power to self-certify appeals that present “exceptional
circumstances.” See Matter of Liadov, 23 I&N Dec. 990, 993
(BIA 2006) (noting that “[w]here a case presents exceptional
circumstances, the Board may certify a case to itself under 8
C.F.R. § 1003.1(c)”). According to Abdulla, the BIA erred in
determining that his appeal did not present extraordinary
circumstances. 3 But the BIA has not elaborated the content
of that standard, making it impossible for us to determine
whether a given case does or does not present the type of
“extraordinary circumstances” that might merit self-
certification of a late-filed appeal.
3
Abdulla bases his claim of extraordinary
circumstances primarily on his arguments that he acquired
derivative citizenship and that his NTA’s defects deprived the
immigration court of jurisdiction. As we explain below, those
arguments are foreclosed under our binding precedent.
8
While this question is one of first impression in this
Court, we are also guided by our earlier jurisprudence in a
related area. In our decision in Sang Goo Park v. Attorney
General, we considered a petitioner’s request that we review
the BIA’s denial of his request for “sua sponte” reopening
under 8 C.F.R. § 1003.2(a). 846 F.3d 645, 647 (3d Cir.
2017). Under that regulation as well, “the BIA may reopen a
case at any time,” and it “has held . . . that it will do so only in
extraordinary circumstances.” Id. at 647–48. We noted that
the agency’s “discretion in this area is . . . so broad . . . that
we have no meaningful way to review it, thereby depriving us
of jurisdiction over orders denying sua sponte reopening.” Id.
at 648.
In Sang Goo Park, we explained two exceptions to our
lack of jurisdiction to review orders denying sua sponte
reopening. First, we have held that “when the BIA relies on
an incorrect legal premise in denying a motion to reopen sua
sponte . . . . we may exercise jurisdiction . . . and remand to
the BIA so that it may exercise its sua sponte authority under
the correct legal framework.” Id. at 651 (citation omitted).
Second, we held under the “settled course exception” that we
may exercise jurisdiction over the denial of sua sponte
reopening if a petitioner can “establish that the BIA has
limited its discretion via a policy, rule, settled course of
adjudication, or by some other method, such that the BIA’s
discretion can be meaningfully reviewed for abuse.” Id. at
653. However, we concluded that the BIA cases cited by the
petitioner “d[id] not lead to the reasonable inference that the
BIA ha[d] done so here.” Id. at 656.
Neither of the Sang Goo Park exceptions, even if they
are applicable to this case, permit review of Abdulla’s
9
petition. The BIA did not rely on any incorrect legal premise
in declining to self-certify the appeal. Nor has Abdulla
identified any manner in which the BIA has limited its own
discretion in this area such that that discretion can be
reviewed for abuse. Notwithstanding the similarities between
Sang Goo Park and this case, Abdulla presents no argument
explaining why a different outcome should result here. Nor
can we discern one.
In concluding that, as a general matter, we lack
jurisdiction to review the BIA’s decision not to self-certify an
appeal, we join the Courts of Appeals for the Second, Eighth,
Ninth, and Tenth Circuits. See Idrees v. Barr, 923 F.3d 539,
543 (9th Cir. 2019) (“Because we do not have jurisdiction to
review the IJ and BIA’s decision not to certify [the
petitioner’s] . . . claim, we dismiss his appeal of the failure to
certify.”); Vela-Estrada v. Lynch, 817 F.3d 69, 71 (2d Cir.
2016) (same); Liadov v. Mukasey, 518 F.3d 1003, 1011 (8th
Cir. 2008) (concluding that “the BIA’s refusal to self-certify
was an unreviewable action committed to the agency’s
discretion”); Mahamat v. Gonzales, 430 F.3d 1281, 1284
(10th Cir. 2005) (holding that “insofar as [the petitioner]
argues that the BIA should have certified his case for review
under 8 C.F.R. § 1003.1(c),” the court “lack[s] jurisdiction”).
And while our sister Courts of Appeals have identified
certain limited exceptions to this rule, those exceptions
largely track those identified in Sang Goo Park. Compare,
e.g., Vela-Estrada, 817 F.3d at 71 n.1 (“Where, in denying
certification, the BIA misperceives the law or misunderstands
its own jurisdiction, it is appropriate to remand to allow the
BIA to consider its authority.”), with Sang Goo Park, 846
F.3d at 651 (“[W]hen the BIA relies on an incorrect legal
10
premise in denying a motion to reopen sua sponte . . . . we
may exercise jurisdiction . . . and remand to the BIA so that it
may exercise its sua sponte authority under the correct legal
framework.” (citation omitted)). Compare also Idrees, 923
F.3d at 543 n.3 (“We do not hold that judicial review of the
BIA’s refusal to certify a case is never appropriate. In other
contexts, we have held that, even where a regulation commits
a matter to agency discretion, the court may review the
decision if there is ‘law to apply’ in doing so.” (citation
omitted)), with Sang Goo Park, 846 F.3d at 653 (identifying
the “settled course exception” to our lack of jurisdiction to
review the BIA’s denial of a motion to reopen sua sponte).
For the same reasons that Sang Goo Park’s exceptions do not
permit review of Abdulla’s claim, the exceptions identified by
our sister Courts of Appeals are also unavailing.
Accordingly, we cannot exercise jurisdiction over
Abdulla’s claim that the BIA erred in declining to self-certify
his late-filed appeal, and we will dismiss the petition in part.4
IV.
Abdulla next argues that the immigration court lacked
jurisdiction because DHS failed to prove his removability by
clear and convincing evidence, relying on the Supreme
Court’s decision in Nijhawan v. Holder, 557 U.S. 29 (2009).
4
Abdulla raises various merits arguments in support of
his claim that the BIA abused its discretion in declining to
self-certify his late-filed appeal. Because we conclude that
we lack jurisdiction to review that discretionary decision, we
only discuss one of his merits claims, in section IV below,
which Abdulla raises separately.
11
The Government responds that Abdulla failed to exhaust his
merits arguments, and that we therefore lack jurisdiction to
review this claim. In support of this proposition, the
Government cites our decision in Bejar v. Ashcroft, in which
we noted that 8 U.S.C. § 1252 requires the exhaustion of
administrative remedies “prior to seeking judicial review of a
final . . . removal order” and held that the “failure [to] timely .
. . appeal to the BIA . . . constitutes a failure to exhaust
administrative remedies.” 324 F.3d 127, 132 (3d Cir. 2003).
Abdulla replies that he exhausted his administrative remedies
by raising his merits claims to the BIA in his untimely filing,
because that filing “demonstrate[d] exceptional circumstances
and ineffective assistance of counsel.” Abdulla Reply Br. 8.
Abdulla does not address Bejar but instead relies on
our holding in Lin v. Attorney General that “so long as an
immigration petitioner makes some effort, however
insufficient, to place the Board on notice of a straightforward
issue being raised on appeal, a petitioner is deemed to have
exhausted her administrative remedies.” 543 F.3d 114, 121
(3d Cir. 2008). But Lin did not involve a claimed failure to
exhaust due to an untimely appeal to the BIA. The petitioner
in that case did timely appeal the immigration court’s
decision, and the question presented was whether or not the
petitioner had failed to put the BIA on notice of a specific
claim raised in the petition for review. See id. at 119–22.
Nothing in Lin calls into question our holding in Bejar. For
these reasons, we agree with the Government that Abdulla
failed to exhaust this merits argument, and we therefore lack
12
jurisdiction to review it. We will dismiss the petition in part
with respect to this claim.5
V.
Abdulla also contends that he was not the proper
subject of removal proceedings and that the immigration
court did not have jurisdiction for two additional reasons.
Neither of these arguments are availing.
First, Abdulla contends that the immigration court
lacked jurisdiction because he is a United States citizen.
Since he was never formally naturalized, his claim is that he
qualified for derivative citizenship through his father’s
naturalization, under the law at the time, former 8 U.S.C. §
5Abdulla bases his due process claim on his arguments
that his prior counsel was ineffective for failing to raise his
derivative citizenship status or that the defective NTA
divested the immigration court of jurisdiction over his
removal. As we explain below, those arguments are
foreclosed squarely by our binding precedent. And in the
context of “a petitioner seeking discretionary relief” who
asserts “ineffective assistance of counsel or procedural due
process claims,” we have jurisdiction only to review
“colorable [constitutional] claims or questions of law.”
Calderon-Rosas, 957 F.3d at 384 (quotation marks omitted)
(alteration in original). Given the outright foreclosure of
Abdulla’s legal arguments by our precedent, his due process
arguments are not colorable, so we therefore lack jurisdiction
to consider them. Cf. id. at 386 (“Because Calderon-Rosas’s
due process claims are also colorable on their merits . . . our
review of those claims is a proper exercise of jurisdiction.”).
13
1432(a). But as we have interpreted that statute — in binding
precedent — Abdulla is statutorily ineligible for derivative
citizenship. In order for a child to be eligible for derivative
citizenship under that provision, the parents must legally
separate before the custodial parent becomes naturalized. See
Jordan v. Att’y Gen., 424 F.3d 320, 330 (3d Cir. 2005)
(noting that “a child seeking to establish derivative
citizenship under § 1432(a) must prove,” inter alia, “that his
[parent] was naturalized after a legal separation from his
[other parent]” (quoting Bagot v. Ashcroft, 398 F.3d 252, 257
(3d Cir. 2005))). Abdulla does not dispute that he fails to
satisfy this requirement. He instead contends that Jordan was
wrongly decided, but under Third Circuit I.O.P. 9.1 we are
bound by that decision.
Second, because Abdulla’s NTA failed to provide the
date and time of his first hearing, Abdulla contends that the
immigration court never obtained jurisdiction, relying on the
Supreme Court’s decision in Pereira v. Sessions, 138 S. Ct.
2105 (2018). But we rejected this argument in Nkomo v.
Attorney General, 930 F.3d 129 (3d Cir. 2019), and under
Third Circuit I.O.P. 9.1, we are bound by Nkomo.
For these reasons, Abdulla’s challenges to the
jurisdiction of the immigration court fail. We will therefore
deny his petition in part.
VI.
For the foregoing reasons, we will deny the petition for
review in part and dismiss in part.
14