Abdulkadir Mohamed v. William P. Barr ( 2020 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 20a0032n.06
No. 19-3116
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
ABDULKADIR IBRAHIM Jan 21, 2020
MOHAMED, DEBORAH S. HUNT, Clerk
Petitioner,
ON PETITION FOR REVIEW FROM
v.
THE UNITED STATES BOARD OF
IMMIGRATION APPEALS
WILLIAM P. BARR, Attorney
General,
Respondent.
BEFORE: DAUGHTREY, CLAY, and GRIFFIN, Circuit Judges.
CLAY, Circuit Judge. Petitioner Abdulkadir Ibrahim Mohamed asks this Court to review
the Board of Immigration Appeals’ denial of his motion to reopen removal proceedings. See 8
U.S.C. § 1229a(c)(7). For the reasons set forth below, we dismiss Mohamed’s petition for lack of
jurisdiction.
I. BACKGROUND
Petitioner Abdulkadir Ibrahim Mohamed is a citizen of Somalia who came to the United
States as a refugee in 2000. After moving to the United States, Mohamed applied for lawful
permanent resident status and became a green card holder in 2003. But Mohamed also acquired a
significant criminal history here, with several charges for crimes like breaking and entering and
aggravated criminal trespass.
In December 2008, while in jail after a conviction for breaking and entering, Mohamed
was issued a notice to appear alleging that he was removable from the United States. There were
several mistakes with this notice to appear. For example, the notice incorrectly claimed that
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Mohamed had not been legally admitted to the United States and cited the immigration law
provision for inadmissibility. Mohamed was also served with a “Notice of Intent to Terminate
Refugee Status” (A.R. at 388), despite already being a lawful permanent resident.
But the upshot was that the government accused Mohamed of committing a “crime
involving moral turpitude,” which would cost him his immigration status. (Id.at 392–93); see also
8 U.S.C. § 1182(a)(2)(A)(i) (“[A]ny alien convicted of . . . (I) a crime involving moral
turpitude . . . is inadmissible.”); cf. 8 U.S.C. § 1227(a)(2)(A)(i) (“Any alien who (I) is convicted
of a crime involving moral turpitude . . . , and (II) is convicted of a crime for which a sentence of
one year or longer may be imposed, is deportable.”); id. § 1227(a)(2)(A)(ii) (“Any alien who at
any time after admission is convicted of two or more crimes involving moral turpitude . . . is
deportable.”). Specifically, the notice to appear said Mohamed was convicted of two counts of
breaking and entering and one count of escape, all under Ohio law, and that these crimes each
involved moral turpitude. See Ohio Rev. Code Ann. § 2911.13 (breaking and entering); id.§ 2921.34 (escape).
A hearing was never held on Mohamed’s notice to appear. Instead, in February 2009,
Mohamed signed a “stipulated request for removal order and waiver of hearing,” essentially an
unconditional guilty plea in the immigration law context. (A.R. at 383–87.) In the stipulation,
Mohamed waived the right to counsel, admitted that “all of the factual allegations contained in the
[notice to appear] are true and correct as written,” and conceded that he “should be removed from
the United States based on those charges.” (Id. at 383–84.) Mohamed waived the right to any relief
from removal, designated Somalia as his country of removal, and said he had “no fear of returning
to that country.” (Id. at 384–85.) He also waived any right to appeal from any resulting order of
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removal. Based on this stipulation, the immigration judge ordered Mohamed to be removed from
the United States “as soon as possible.” (Id. at 381–82.)
It turns out “as soon as possible” was not very soon at all. Almost a decade later, the
Department of Homeland Security (“DHS”) had still not removed Mohamed. According to
Mohamed, this was because the conditions in Somalia were too dangerous for the United States to
deport people there. But in 2017, DHS attempted to remove Mohamed to Somalia. This attempt
was unsuccessful, and the deportation flight landed in Senegal before returning to the United
States. Back in the United States, Mohamed became a part of a class action lawsuit against DHS
related to this failed deportation flight. Despite this, after this Court denied a motion to stay,
Mohamed v. Barr, No. 19-3116 (6th Cir. Apr. 10, 2019) (order), Mohamed was removed to
Somalia on April 11, 2019.
After the failed deportation flight but before his later removal, Mohamed—represented by
counsel—also sought to reopen his 2009 removal proceedings. In his motion to reopen, Mohamed
asked for relief in the form of asylum, withholding of removal, and protection under the
Convention Against Torture (“CAT”). Because a motion to reopen must normally be filed within
ninety days of an order of removal (as opposed to nine years), Mohamed also claimed that
conditions in Somalia had changed since 2009, excusing his late filing.
Mohamed claimed four changes in Somalia’s country conditions that could support his
motion to reopen:
(1) terrorist groups such as Al Shabaab and ISIS-Somalia have
recently increased the number of targeted attacks against Somali
civilians and the Western-backed military forces in the country in
an organized effort to overthrow the weak Somali government;
(2) Al Shabaab has infiltrated the Somali government institutions;
(3) Al Shabaab exercises de facto government control over
significant Somali territory; and (4) Mr. Mohamed is now a high-
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profile Americanized Somali and plaintiff in a class action lawsuit
that has attracted international media attention.
(A.R. at 202.) Based on these changes, Mohamed feared he would be persecuted or killed upon his
return to Somalia.
The immigration court rejected Mohamed’s motion, saying that he failed to demonstrate a
material change in country conditions in Somalia. First, while Mohamed claimed that Al-Shabaab
and ISIS-Somalia have stepped up attacks against civilians and Western-backed forces, the
immigration judge noted that “the number of civilian deaths caused by Al-Shabaab has stayed the
same or decreased since 2009.” (Id. at 98.) The immigration judge also pointed to evidence that,
in 2009, fighting between Somali military forces and terrorist groups resulted in thousands of
civilian deaths, while Al-Shabaab caused 880 civilian deaths in 2017.
Second, the immigration court found that instead of Al-Shabaab having infiltrated Somali
government institutions after 2009, it had actually done so by 2009, meaning there had not been a
change in country conditions. Specifically, the judge noted that starting in 2008, in regions under
its control, Al-Shabaab “established governing structures” including police, courts, and other
governmental services. (Id. (quoting A.R. at 258).) He also pointed to Mohamed’s expert, who
said that Al-Shabaab “maintains a presence in Mogadishu and elsewhere in Somalia,” implying
that this presence is not new. (Id. (quoting A.R. at 284).)
Third, the immigration judge similarly found that Al-Shabaab’s de facto control over
Somali territory had not increased, and if anything had decreased since 2009. The judge noted that
Al-Shabaab had captured “major urban and economic centers” starting in 2008, and any recent
acquisitions of territory were simply regaining areas lost since 2010. (Id. (quoting A.R. at 257).)
Finally, the immigration court held that Mohamed’s status as a “high-profile Americanized
Somali and plaintiff in a class action lawsuit” was a change in personal conditions, not country
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conditions, and so could not support the late filing of a motion to reopen. (Id. at 98–99.) In sum,
the judge found that “the situation in Somalia has remained the same” since Mohamed signed his
stipulated removal in 2009, and so he denied the motion to reopen. (Id. at 99.)
Mohamed then appealed to the Board of Immigration Appeals (“BIA”), criticizing the
immigration judge’s findings on country conditions in Somalia. Mohamed argued that the
immigration judge ignored significant increases of displacement within Somalia, that the
infiltration of the Somali government had to be a new phenomenon because the currently
recognized government (the Federal Government of Somalia, or FGS) did not exist until 2012, and
that Al-Shabaab recently gained control of large areas of Somalia. Mohamed also claimed that his
role in the lawsuit could support a change in country conditions because the failed deportation
flight garnered significant publicity within Somalia.
The BIA affirmed the immigration judge’s decision, finding that Mohamed failed to
sufficiently establish changed country conditions. Specifically, the BIA held that the evidence
presented did not establish (1) a “material increase in attacks” by Al-Shabaab and ISIS-Somalia
since 2009, (2) that Al-Shabaab infiltrated the Somali government after 2009 instead of by 2009,
or (3) that Al-Shabaab exercised “de facto governmental control” over more territory in 2018 than
in 2009. (Id. at 4.) Further, the BIA agreed with the immigration judge that Mohamed’s class-
action involvement was a change in personal, not country conditions, and that the record did not
show “that the way Al-Shabaab treats Americanized Somalis has materially changed since 2009.”
(Id.)
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Mohamed then petitioned this Court for review, largely raising the same arguments as in
his appeal to the BIA.1 The government, however, says that we lack the authority to review the
BIA’s decision. This is because Mohamed’s removability was based on his conviction for a crime
involving moral turpitude, which strips this Court of jurisdiction. See 8 U.S.C. § 1252(a)(2)(C).
Mohamed responded by noting, for the first time, that his convictions were not actually for crimes
involving moral turpitude, which if true would mean there was no basis for his removal at all. In
support of this, Mohamed does not argue that his stipulation was not knowingly and voluntarily
made, but rather says that it cannot supplant this Court’s independent legal judgment as to whether
his conviction was for a crime involving moral turpitude. Finally, Mohamed argues that even if
the jurisdictional bar did apply, we could still review the BIA’s decision because its errors
regarding changed country conditions were so egregious that they amount to legal, rather than
factual errors.
II. DISCUSSION
A threshold question of jurisdiction stands between this Court and Mohamed’s claims.
According to the government, because Mohamed’s underlying order of removal is based on the
inadmissibility provision for crimes involving moral turpitude, the Immigration and Nationality
Act (“INA”) bars us from reviewing his petition. Mohamed responds by arguing that his
convictions were not for crimes involving moral turpitude, and that even if the jurisdictional bar
applies, the BIA’s factual mistakes on changed country conditions were so severe that they were
transformed into questions of law, which this Court can still review.
While Mohamed may be correct about the nature of his underlying convictions, his order
of removal became final in 2009, and Mohamed cannot collaterally challenge it now. Thus, the
1
Mohamed appears to have dropped his argument regarding the increase in territory under
Al-Shabaab’s de facto control.
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jurisdictional bar applies, regardless of the specific crimes listed in Mohamed’s stipulated order of
removal. Furthermore, while certain factual errors can be so extreme as to raise a question of law,
this is not the case here: the BIA considered and rejected Mohamed’s arguments based on evidence
in the administrative record. Accordingly, we lack jurisdiction to review Mohamed’s claims, and
so his petition for review must be dismissed.
A. Jurisdictional Bar from Mohamed’s Stipulation of Removability
The government argues that this Court lacks jurisdiction over Mohamed’s petition because
of the jurisdictional bar found in 8 U.S.C. § 1252(a)(2)(C). That provision, titled “orders against
criminal aliens,” provides that “no court shall have jurisdiction to review any final order of removal
against an alien who is removable by reason of having committed a criminal offense covered in”
various sections of the INA. 8 U.S.C. § 1252(a)(2)(C). One of those sections, § 1182(a)(2), is the
provision Mohamed was charged under in his notice to appear. That statute provides that “any
alien convicted of, or who admits having committed, . . . (I) a crime involving moral turpitude . . .
is inadmissible.” Id. § 1182(a)(2)(A)(i).
In response, Mohamed says that despite his stipulation of removability under § 1182(a)(2),
the jurisdictional bar should not apply. This is because the crimes listed in his notice to appear are
not actually crimes involving moral turpitude (which, in addition to lifting the jurisdictional bar,
would actually undermine the legal basis for his removal altogether).
The trouble for Mohamed comes from the procedural posture of this case. Instead of having
directly challenged his order of removal, Mohamed comes to this Court on review of a motion to
reopen removal proceedings. And in Mohamed’s motion to reopen, he did not challenge the order
of removal based on whether the underlying crime involved moral turpitude. Nor does he claim
that his stipulation was not knowingly and voluntarily made. Presumably, this is because the INA
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sets a ninety-day time limit on filing a motion to reopen based on these claims. See 8 U.S.C.
§ 1229a(c)(7)(C)(i).
Mohamed instead moved to reopen proceedings in order to apply for asylum, withholding
of removal, and CAT relief, and based this request on changed country conditions in Somalia. See
id. § 1229a(c)(7)(C)(ii) (providing no time limit for moving to reopen based on changed country
conditions). In short, this means Mohamed did not challenge his “removability” at all—the relief
he seeks only serves to prevent the actual removal of an otherwise removable noncitizen.
The question is then, if Mohamed is not challenging his underlying removability, does the
jurisdictional bar still apply based on his incorrect stipulation to having committed a crime
involving moral turpitude? Based on the language of the INA, prior case law, and general
principles of finality, we believe the answer is yes.
First, under the INA, a stipulation of removability is “a conclusive determination of the
alien’s removability from the United States.” 8 U.S.C. § 1229a(d). While this “conclusive
determination” would fall if the stipulation itself were invalid, see, e.g., United States v. Baptist,
759 F.3d 690, 696 (7th Cir. 2014) (discussing a challenge to a stipulated removal order based on
the stipulation not being knowing and voluntary), Mohamed does not challenge his stipulation in
this proceeding. Similarly, this Court has previously indicated that the application of
§ 1252(a)(2)(C)’s jurisdictional bar to a motion to reopen turns on the basis for removability cited
in the underlying removal order, Zakar v. Sessions, 739 F. App’x 774, 776–77 (6th Cir. 2018),
suggesting that we should not look through the order in this collateral posture. Thus, finding
Mohamed not to be removable on the basis listed in his stipulation would undercut the
requirements of § 1229a(d).
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Second, Mohamed’s order of removal was made final through his failure to appeal to this
Court when the immigration judge entered the order in 2009. This finality is jurisdictional because
it is rooted in the INA’s deadline for appeals. 8 U.S.C. § 1252(b)(1); see also, e.g., Juarez-Chavez
v. Holder, 515 F. App’x 463, 465–66 (6th Cir. 2013) (finding that a noncitizen could not challenge
a stipulated removal order because of the time limit in § 1252(b)(1)); Gor v. Holder, 607 F.3d 180,
185 (6th Cir. 2010) (“This time limitation is enforced strictly, and courts lack jurisdiction to review
a BIA decision when a petitioner fails to seek judicial review of an order within the applicable
time period.”).
The Supreme Court confirmed this view in Stone v. INS, 514 U.S. 386 (1995). In Stone, a
noncitizen appealed an order of removal to the BIA and his appeal was denied. Id. at 388–89.
Instead of immediately appealing, he first filed a motion to reopen with the BIA, which was later
denied as frivolous. Id. at 389. After that denial, Stone sought review in this Court, challenging
both the underlying removal order and the denial of his motion to reopen.
The Supreme Court dismissed Stone’s challenges to any part of his underlying removal
order. Id. at 389–90. This is because the INA’s time limits for appeal were jurisdictional, and so
even though Stone filed a motion to reopen, the order of removal became final when that time limit
expired. Id. at 405–06. Applying this principle here, Mohamed cannot now challenge a necessary
component of the stipulated order of removal, which became final back in 2009.
Third, the finality of Mohamed’s order of removal is further cemented by the law-of-the-
case doctrine. Under this doctrine, “[a] party who could have sought review of an issue or a ruling
during a prior appeal is deemed to have waived the right to challenge that decision thereafter, for
‘[i]t would be absurd that a party who has chosen not to argue a point on a first appeal should stand
better as regards the law of the case than one who had argued and lost.’” United States v. Adesida,
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129 F.3d 846, 850 (6th Cir. 1997) (second alteration in original) (quoting Fogel v. Chestnutt,
668 F.2d 100, 109 (2d Cir. 1981)). “This doctrine exists for good reason—it discourages ‘perpetual
litigation’ and promotes finality in proceedings by requiring that parties seek review of a claim in
the first appeal.” Burley v. Gagacki, 834 F.3d 606, 619 (6th Cir. 2016) (quoting United States v.
McKinley, 227 F.3d 716, 719 (6th Cir. 2000)). This concern is precisely why the INA only allows
late motions to reopen based on changed country conditions, 8 U.S.C. § 1229a(c)(7)(C)(ii), an
issue that by definition could not be raised in an earlier stage of the proceedings.
At bottom, Mohamed seeks to challenge the legal basis for his removal even though he
stipulated to his removability and failed to seek review within the required timeline. In this far
later procedural stance, we must take his order of removal as a given, which means the INA’s
jurisdictional bar applies to this case. Perhaps there is some other way for Mohamed to challenge
his stipulated removal order. Cf. INS v. St. Cyr, 533 U.S. 289, 298–301 (2001) (discussing the
interplay between habeas corpus and immigration proceedings); Ragbir v. Homan, 923 F.3d 53,
73–77 (2d Cir. 2019) (same); Juarez-Chavez, 515 F. App’x at 467 (same). But absent such a
challenge, Mohamed cannot attack the legal basis of his underlying removal order to get around
the INA’s jurisdictional bar nearly a decade after that order became final.
B. Question-of-Law Exception to the Jurisdictional Bar
Even though the jurisdictional bar under § 1252(a)(2)(C) applies, this does not spell the
end of Mohamed’s case. This is because the INA includes an exception to that provision for
“review of constitutional claims or questions of law.” 8 U.S.C. § 1252(a)(2)(D); accord Serrato-
Soto v. Holder, 570 F.3d 686, 688 (6th Cir. 2009).
Normally, the BIA’s determination of changed country conditions is a question of fact, and
so would not escape the jurisdictional bar. E.g., Pepaj v. Mukasey, 509 F.3d 725, 727–28 (6th Cir.
2007); Almuhtaseb v. Gonzales, 453 F.3d 743, 748 (6th Cir. 2006). “[T]he existence of ‘changed
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circumstances’ that materially affect eligibility for asylum is a predominantly factual
determination, which will invariably turn on the facts of a given case.” Almuhtaseb, 453 F.3d at
748 (quoting Ramadan v. Gonzales, 427 F.3d 1218, 1221–22 (9th Cir. 2005), withdrawn, 479 F.3d
646 (9th Cir. 2007) (per curiam)). And when a claim “relies on contesting . . . factual
determinations rather than on statutory construction or a constitutional claim,” the jurisdictional
bar remains intact. Pepaj, 509 F.3d at 728 (quoting Almuhtaseb, 453 F.3d at 748).
But we have previously noted that, in certain extreme cases, the BIA’s errors in assessing
changed country conditions can amount to a question of law. Shabo v. Sessions, 892 F.3d 237,
239–40 (6th Cir. 2018). This is because, while application of the changed country conditions
exception is normally a factual question, “[f]actual errors can qualify as legal errors when
‘important facts have been totally overlooked and others have been seriously mischaracterized.’”
Id. (quoting Ventura-Reyes v. Lynch, 797 F.3d 348, 360 (6th Cir. 2015)). “[W]hether the BIA
correctly considered, interpreted, and weighed the evidence presented,” however, “is not a
constitutional issue or question of law. Such a question is instead factual.” Id. at 239 (citation
omitted) (quoting Arestov v. Holder, 489 F. App’x 911, 916 (6th Cir. 2012)).
Mohamed claims that this case involves an extreme error because the BIA ignored “the
increased terrorist threat posed by the rise of ISIS-Somalia,” ignored and conflated “evidence that
Al-Shabaab infiltrated the Federal Government of Somalia (‘FGS’) by 2009,” and ignored the
changed country conditions caused by Mohamed’s “increased public notoriety and media attention
due to the failed December 7, 2017 deportation flight.” (Pet’r’s Br. at 10.) But a review of the
administrative record shows this is not the case, and that what Mohamed frames as totally
overlooking his evidence actually amounts to a dispute over what his evidence showed. Such a
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disagreement does not implicate a question of law, and so it cannot provide us with jurisdiction
over Mohamed’s petition.
For example, the BIA affirmed the immigration judge’s finding that Mohamed had shown
“no material increase in attacks . . . by Al-Shabaab and ISIS-Somalia since 2009.” (A.R. at 4.)
While Mohamed complains that the immigration judge ignored ISIS-Somalia by focusing instead
on the decrease in civilian deaths caused by Al-Shabaab, this was in the course of a discussion of
Mohamed’s “fail[ure] to demonstrate an increase in attacks . . . by Al-Shabaab and ISIS-Somalia.”
(A.R. at 98 (emphasis added).) Instead of ignoring Mohamed’s evidence as to ISIS-Somalia, this
suggests that the immigration judge considered it but rejected Mohamed’s claim of increased
terrorist activity based on other evidence in the record, such as the simultaneous decrease in
activity from Al-Shabaab.
Mohamed’s other claims fare no better. On his claim regarding Al-Shabaab’s infiltration
of the Somali government, the immigration judge found this did not amount to changed country
conditions, since Al-Shabaab controlled major governmental functions in Somalia beginning in
2008. While Mohamed is correct that this is not the same as the FGS, which was established after
2009, this is a distinction without a difference with respect to the threat he faces from Al-Shabaab
in Somalia. Similarly, the immigration judge was correct to construe Mohamed’s evidence
regarding his status as a “high-profile Americanized Somali and plaintiff in a class action lawsuit”
as reflecting a change in personal, not country circumstances. (A.R. at 98–99.) Looking instead to
conditions in Somalia, the immigration judge found that Mohamed failed to show, as a factual
matter, “that the way Al-Shabaab treats Americanized Somalis has changed since 2009.” (Id. at
99.)
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The board’s “decision to highlight some pieces of evidence in the record over others when
reaching those conclusions” cannot transform Mohamed’s complaints into questions of law, as his
petition really asks us to perform an “impermissible review of [the BIA’s] fact-finding rather than
an assessment of whether [it] committed constitutional or legal error.” Ventura-Reyes, 797 F.3d at
360; see also Arestov, 489 F. App’x at 916 (“[C]laims that [the BIA] failed to emphasize certain
factors in a petitioner’s case . . . are not subject to review.”). And when limited by the jurisdictional
bar, this Court cannot “inquire whether [it] would have weighed or interpreted a particular set of
facts differently.” Ventura-Reyes, 797 F.3d at 360. But this is exactly what Mohamed asks us to
do in his motion to reopen.
Far from having “totally overlooked” Mohamed’s claims, Shabo, 892 F.3d at 239–40
(emphasis omitted) (quoting Ventura-Reyes, 797 F.3d at 360), the immigration judge and the BIA
considered each of his arguments and rejected them based on the evidence. These findings were
not “so clearly wrong as to constitute a legal error that escapes the jurisdictional bar,” Ventra-
Reyes, 797 F.3d at 361, and so Mohamed’s petition must be dismissed.
III. CONCLUSION
Because Mohamed’s order of removal became final in 2009, the INA’s jurisdictional bar
applies to his claims even if the order incorrectly concluded that his convictions were for crimes
involving moral turpitude. And while this Court can still decide questions of law, Mohamed’s
challenges to the BIA’s findings on changed country conditions ask us to resolve factual issues,
not legal ones. This Court lacks jurisdiction to consider Mohamed’s claims, and so we dismiss his
petition for review.
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