Al-Mousa v. Gonzales , 166 F. App'x 746 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 14, 2006
Charles R. Fulbruge III
No. 05-20174 Clerk
ABDEL ALRAHMAN AL-MOUSA
Petitioner - Appellant
versus
ALBERTO R. GONZALES, et al.
Respondents - Appellees
Appeal from the United States District Court
for the Southern District of Texas
(No. H-04-4189)
Before GARWOOD, BENAVIDES, and OWEN, Circuit Judges.
PER CURIAM:*
Petitioner-Appellant Abdel Alraham Al-Mousa (“Al-Mousa”)
challenges the district court’s denial of his petition for habeas
corpus on the basis that he is entitled to relief under the
Convention Against Torture (“CAT”).
I. FACTS & PROCEEDINGS
A. Background
Al-Mousa was deported to his native country, Syria,
approximately one year ago. He testified before the Immigration
*
Under 5TH CIR. R. 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opinion should not be published and is not precedent except under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 CIR. R. 47.5.4.
Judge (“IJ”) that he left his home in Hama, Syria in 1982 after
units of the Syrian military massacred several members of his
family in an action against the city of Hama, which at the time was
a stronghold of militant opposition to the Syrian government. Al-
Mousa testified that he became an outspoken critic of the Syrian
government following the massacre, and was subsequently imprisoned
and tortured for three months. After his release, he resided in
Jordan until 1992, when he moved to the United States.
B. Proceedings
In February 1998, the government initiated deportation
proceedings against Al-Mousa because he was present in the United
States in violation of United States law,1 and he was convicted of
making false statements to immigration authorities, a crime of
moral turpitude.2 Al-Mousa then petitioned for asylum on the basis
that he feared torture at the hands of the Syrian government if he
was deported. The IJ found that Al-Mousa was not a credible
witness and, as there was no corroborating evidence to support Al-
Mousa’s alleged anti-government statements, the IJ denied asylum.
The Board of Immigration Appeals (“BIA”) affirmed the IJ’s decision
without discussion. Al-Mousa then appealed to this court, and we
denied his appeal in an unpublished opinion.
In March 2004, the government took Al-Mousa into custody
1
8 U.S.C. § 1227(a)(1)(B).
2
Id. at § 1227(a)(2)(A)(i).
2
pending deportation. Al-Mousa petitioned the district court for a
writ of habeas corpus in November 2004 alleging, inter alia, that
the government was deporting him in violation of its obligations
under the CAT. The district court dismissed the petition on the
basis that it lacked jurisdiction because Al-Mousa could have
raised his CAT claim on direct review before either the BIA or this
court, but he failed to do so. Al-Mousa appeals from this order.
II. ANALYSIS
At the outset, the parties dispute whether we should treat
this case as an appeal of a denial of a habeas corpus petition
under 28 U.S.C. § 2241, or a petition for review under the Real ID
Act of 2005, which became effective May 11, 2005 —— while this
appeal was pending. The Real ID Act amends the Immigration and
Nationality Act to eliminate habeas review of orders of removal.
Specifically, the law provides that:
Notwithstanding any other provision of law (statutory or
non-statutory), including section 2241 of Title 28, or
any other habeas corpus provision... a petition for
review filed with an appropriate court of appeals in
accordance with this section shall be the sole and
exclusive means for judicial review of an order of
removal issued under any provision of this chapter.3
Although Congress was silent as to the effect of the Real ID Act on
§ 2241 cases pending on appeal, we have held that “habeas petitions
on appeal as of May 11, 2005... are properly converted into
3
8 U.S.C. § 1252(a)(5).
3
petitions for review.”4 Accordingly, we will treat Al-Mousa’s
appeal as a petition for review.
Section 1252(d) provides that we may review a petition only
if, inter alia, the alien exhausts his administrative remedies. An
alien can fulfill this obligation by raising the issue on direct
appeal to the BIA.5 Here, Al-Mousa could have raised his CAT claim
on direct review before either the BIA or this court, but he failed
to raise his CAT claim until now. Accordingly, under section
1252(d), we cannot review Al-Mousa’s claim because he failed to
exhaust his administrative remedies.
Al-Mousa contends that he is excused from the requirement that
he exhaust his administrative remedies under Eduard v. Ashcroft.6
Al-Mousa’s reliance on Eduard is misplaced. In Eduard, the
petitioners alleged facts that may have entitled them to asylum
under CAT in their petition, but they failed to expressly identify
CAT as the legal theory under which they sought relief until the
case was on direct review.7 Under those circumstances, we held
that the petitioners had sufficiently raised a CAT claim and
remanded to the IJ for reconsideration.8 Al-Mousa’s situation is
4
Rosales v. Bureau of Immigration and Customs Enforcement,
426 F.3d 733, 736 (5th Cir. 2005).
5
Roy v. Ashcroft, 389 F.3d 132, 137 (5th Cir. 2004).
6
379 F.3d 182 (5th Cir. 2004).
7
Id. at 185.
8
Id. at 196.
4
distinctly different. In Eduard the CAT had come into force before
the alien executed his asylum application. Here, by contrast, the
CAT did not come into force until after Al-Mousa had appealed to
the BIA; the CAT came into effect while his appeal was pending
before the BIA, but before he filed his brief with the BIA;
notwithstanding that the CAT was in effect when that brief was
filed it makes no mention of the CAT (nor was any mention of the
CAT made in Al-Mousa’s appeal to this court). While he stated in
his petition for asylum that he feared torture if deported to
Syria, Al-Mousa —— unlike the Eduard petitioners —— never
identified CAT as one of the legal theories underlying his claim to
the BIA or to this court on direct review. Simply alleging facts
without articulating a legal theory for recovery is insufficient to
exhaust administrative remedies as to the unstated legal theory.
Instead, an alien must at the very least place the BIA on notice of
the legal theory to which those facts apply during the direct
review process. Thus, Al-Mousa’s argument is unpersuasive.
Moreover, Al-Mousa is not entitled to relief because under 8 U.S.C.
§ 1252(d)(2) “[a] court may review a final order of removal only if
. . . another court has not decided the validity of the order,
unless the reviewing court finds that the petition presents grounds
that could not have been presented in the prior judicial
proceeding.”
III. CONCLUSION
5
For the foregoing reasons, Al-Mousa’s petition for review is
DENIED.
6