Zayed v. Gonzales , 139 F. App'x 689 ( 2005 )

No. 03-3614
File Name: 05a0606n.06
Filed: July 19, 2005
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
NABEEL HUSNI ZAYED, )
)
Petitioner, )
)
v. ) ON PETITION FOR REVIEW OF
) AN ORDER OF THE BOARD OF
ALBERTO GONZALES, Attorney General of ) IMMIGRATION APPEALS
the United States, )
)
Respondent. )
Before: NELSON and COLE, Circuit Judges, and SARGUS, District Judge.*
DAVID A. NELSON, Circuit Judge. This matter comes before us on a petition for
review of an order in which the Board of Immigration Appeals denied the petitioner’s
requests for asylum and voluntary departure. The question presented is whether the
petitioner received a full and fair opportunity to demonstrate his eligibility for asylum,
thereby satisfying the requirements of the Due Process Clause of the Constitution. We are
not persuaded that the administrative proceedings at issue were conducted in a manner that
denied the petitioner due process. Accordingly, and because we lack jurisdiction to review
the merits of the asylum claim, the petition for review will be denied.
*
The Honorable Edmund A. Sargus, Jr., United States District Judge for the Southern
District of Ohio, sitting by designation.
No. 03-3614
Page 2
I
The petitioner, Nabeel Zayed, is a Palestinian native of the West Bank area in the
Middle East. Mr. Zayed’s citizenship is a matter of dispute. The immigration judge found
him to be a citizen of the Kingdom of Jordan, but Zayed maintains that he is stateless.
Mr. Zayed entered the United States in January or February of 1989. In 1991 an
immigration judge, or “IJ,” found him removable. The IJ denied an application for asylum
and withholding of removal. A request for voluntary departure was granted. The Board
dismissed Zayed’s administrative appeal in 1992, and in 1993 the Board denied a motion to
reopen.
Mr. Zayed returned to the West Bank in late 1993 or early 1994. He stayed there only
a few months, however, re-entering the United States in March of 1994. Zayed subsequently
overstayed his visa, was placed in removal proceedings, and filed a new application for
asylum, withholding of removal, and voluntary departure. At an initial hearing on the new
application, the immigration judge designated Israel as the country to which Mr. Zayed
would be removed if his requests for relief were denied.
Mr. Zayed’s current claim for asylum is based both on the Israeli government’s refusal
to grant Palestinians the rights and privileges of citizenship and on threats from Palestinians
to kill Zayed and his family as “collaborators” with the Israelis. Mr. Zayed testified that his
brother was killed in March of 1999 after a leaflet identified the brother as a “traitor” who
No. 03-3614
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worked with Israelis and “snitch[ed]” on Palestinians to the Israeli government. Mr. Zayed
expressed fear that he also would be killed if he returned to Israel.
The immigration judge denied Mr. Zayed’s application and, despite the earlier
designation of Israel, ordered Zayed removed to Jordan. The judge found Zayed to be a
citizen of Jordan on the basis of a Jordanian passport and other evidence presented by the
government. On the merits of the application for asylum and withholding of removal, the
judge questioned Mr. Zayed’s credibility but held that his testimony, even if believed, did
not establish the statutory grounds for relief. The judge denied Zayed’s request for voluntary
departure on the ground that he had abused that privilege in the past.
Mr. Zayed appealed to the Board, which dismissed the appeal. The Board held that
Mr. Zayed had not presented evidence of a material change in circumstances since the denial
of his first asylum application. It rejected Zayed’s argument that he did not have sufficient
notice that Jordan might be designated as the country to which he would be removed. It also
rejected Zayed’s argument that the immigration judge should have continued the asylum case
pending resolution of a visa application that had been filed by Zayed’s wife on his behalf.
Finally, the Board affirmed the denial of voluntary departure.
Mr. Zayed filed a timely petition for review.
No. 03-3614
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II
Once an alien has applied for asylum and the application has been denied, a
subsequent application may not be considered unless the alien demonstrates the existence of
changed circumstances that materially affect his eligibility for asylum. See 8 U.S.C. §
1158(a)(2)(C) and (D). Where the Attorney General determines that the alien has not
demonstrated changed circumstances, “[n]o court shall have jurisdiction to review” the
determination. Id. § 1158(a)(3). As we have seen, the Attorney General’s designee – the
Board – concluded that Mr. Zayed “did not present evidence of materially changed
circumstances since our earlier evaluation of his asylum claim.” Accordingly, the merits of
Zayed’s asylum claim are not before us.
Insofar as Mr. Zayed asserts a denial of fundamental fairness in the hearing on his
asylum claim, however, thereby raising a constitutional issue, we may consider the assertion.
See Gjyzi v. Ashcroft, 386 F.3d 710, 714 (6th Cir. 2004), where we acknowledged our
jurisdiction to decide whether, in the course of making a determination that is unreviewable
under § 1158(a)(2), the Board violated an alien’s right to due process.
We do not have jurisdiction to review the denial of Mr. Zayed’s request for voluntary
departure. See 8 U.S.C. § 1229c(f). In addition, Zayed waived any argument with respect
to withholding of removal by failing to raise it in his brief to this court. See Kalaj v.
No. 03-3614
Page 5
Gonzales, 127 Fed. Appx. 766, 768 (6th Cir. 2005).1 The only question before us, therefore,
is whether Mr. Zayed had a fair opportunity to demonstrate his eligibility for asylum.
A
Mr. Zayed argues that his hearing was fundamentally unfair because the immigration
judge ordered him removed to Jordan, rather than to Israel, without having given him prior
notice that Jordan was under consideration. He relies on case law establishing that an order
of removal to a particular country violates an alien’s due process rights when the alien has
had no opportunity to address his or her fear of persecution in that country. See Kuhai v.
INS, 199 F.3d 909, 913-14 (7th Cir. 1999); Andriasian v. INS, 180 F.3d 1033, 1041 (9th Cir.
1999).
Kuhai and Andriasian are distinguishable from this case, in our view, because Mr.
Zayed had reason to be aware that Jordan might be designated as the country of removal.
The document charging Zayed with removability alleged that he was a citizen of Jordan.
1
There might be some tension between Kalaj and another of our unpublished
decisions, Gao v. Ashcroft, No. 03-4169, 2005 WL 1285643 (6th Cir. May 23, 2005). In Gao,
we held that an alien did not waive her claim for withholding of removal by focusing in her
brief on the denial of asylum. See Gao, 1995 WL 1286543, at *2. We think that Gao is
distinguishable, however, because the petitioner there “explicitly challenged the IJ’s and the
BIA’s credibility determination as a basis for dismissing all of her claims.” Id. In the case
at bar, Mr. Zayed specifically identified his claims for asylum and voluntary departure as the
claims that should have been granted. He has never suggested that his argument as to those
claims was intended to apply to all of his claims, including the one for withholding of
removal.
No. 03-3614
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Zayed held a Jordanian passport and had previously claimed to be a Jordanian citizen. He
denied having Jordanian citizenship at the initial hearing, to be sure, and the immigration
judge designated Israel at that time. But the judge advised the parties in advance of the
merits hearing that designation of the country of removal remained an issue. Then, on the
day of the hearing, without objection from Zayed’s lawyer, the judge took evidence on the
question. We are satisfied that Mr. Zayed, unlike the petitioners in Kuhai and Andriasian,
had a fair opportunity to demonstrate that he feared persecution in the country that was
ultimately designated.
Indeed, Mr. Zayed actually testified about his fear of living in Jordan, saying that he
could be targeted there by the family of the man who killed his brother or by an organization
to which that man belonged. At no time did Zayed or his lawyer suggest that he was
unprepared to present additional evidence in that regard. Mr. Zayed sought a continuance
both before and during the merits hearing, but nothing in the record suggests that his grounds
for doing so related to the designation question. In these circumstances, we are not
persuaded that the manner in which Jordan was designated as the country of removal
constituted a denial of due process.
B
Mr. Zayed also argues that he was denied a fair hearing by reason of the immigration
judge’s admission of two documents. One was a message from the American Consulate in
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Jerusalem to an INS office in Cleveland stating that “as a Jordanian citizen Mr. Zayed can
travel to Jordan and is able to return there in the event he does not wish to return to
Jerusalem.” Mr. Zayed objected to the admission of this document on the ground that the
inquiry that prompted it was not available. The second document was a United States
Department of State report on human rights in Israel and its occupied territories. This report
was admitted without objection.
We do not believe that the immigration judge’s admission of these documents was
improper. But if the IJ did err, we do not think the error rises to the level of a due process
violation. The demands of due process are satisfied if an asylum applicant is given “a
reasonable opportunity to examine the evidence against him, to present evidence on his own
behalf, and to cross-examine witnesses presented by the Government.” Mikhailevitch v. INS,
146 F.3d 384, 391 (6th Cir. 1998) (internal quotation marks omitted). A due process violation
occurs only when the proceeding is “so fundamentally unfair that the alien was prevented
from reasonably presenting his case.” Colmenar v. INS, 210 F.3d 967, 971 (9th Cir. 2000)
(internal quotation marks omitted). That is not the situation here.
C
Mr. Zayed’s final argument is that the immigration judge should have continued the
merits hearing pending reconsideration of a visa petition filed by Zayed’s wife on his behalf.
Mr. Zayed moved for the continuance about a month before the hearing, and the immigration
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judge denied the motion. Zayed renewed the motion on the day of the hearing, citing both
the pending visa petition and the State Department’s failure to render a requested advisory
opinion on Zayed’s asylum claim. Again the immigration judge declined to grant the
continuance.
The refusal to continue the merits hearing did not compromise Mr. Zayed’s due
process rights. Although Zayed asserts that he “would be eligible for immediate adjustment
to lawful permanent resident status[] if his wife’s [visa] petition were timely reconsidered,”
we have no reason to suppose that the wife’s petition would have been granted on
reconsideration. And we have good reason to suppose otherwise: Mr. Zayed’s wife was
herself placed in removal proceedings on a charge that she had fraudulently obtained a visa.
See Zayed v. United States, 368 F.3d 902, 904 (6th Cir. 2004). In these circumstances, we
are not persuaded that Mr. Zayed suffered any prejudice as a result of the denial of his
motions for a continuance.
The petition for review is DENIED.