Adnan Issaq v. Eric Holder, Jr. ( 2010 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-2288
A DNAN I. ISSAQ,
Petitioner,
v.
E RIC H. H OLDER, JR., Attorney General
of the United States,
Respondent.
Petition for Review from an Order
of the Board of Immigration Appeals.
No. A 075 056 464
A RGUED D ECEMBER 4, 2009—D ECIDED A UGUST 17, 2010
Before P OSNER, R IPPLE, and W OOD , Circuit Judges.
W OOD , Circuit Judge. In 1997, Adnan Issaq, a citizen
of Iraq, moved with his parents and three siblings from
Syria to the United States, where they were admitted
as refugees. Issaq and his family are Christians of
Assyrian descent. His father, a native of Iraq, and his
mother, a Syrian, were married in Syria but settled in
Baghdad, Iraq, where Issaq was born in 1978. Fearing
2 No. 09-2288
religious persecution, Issaq’s parents took the family to
Syria in 1991. There they remained through late 1997, until
their application for refugee status was approved and
they came to the United States. Once here, the family
settled in DuPage County, Illinois, just west of Chicago.
Issaq became a permanent resident of the United States
in 2001.
Unfortunately, Issaq developed a drug habit, which
led to other crimes and ultimately to the removal pro-
ceedings now before us. Issaq was charged with com-
mitting a number of residential burglaries near his home
in late 2005. He pleaded guilty to one count, and in
March 2007 an Illinois court sentenced him to 180
days in prison and two years of probation, including
inpatient substance-abuse treatment. In May 2007, after
Issaq had served his prison term, the DuPage County
Jail released him to a rehabilitation program called the
Treatment Alternatives for Safe Communities. Issaq soon
blew the chance he had been given. Two months into
the program, Treatment Alternatives expelled him for
using drugs and for arranging with others to bring
drugs into the treatment facility. Issaq’s expulsion
violated the terms of his probation, and a warrant
issued for his arrest. He remained on the loose until
December 2007, when a local police officer pulled his
car over after a traffic violation. Issaq gave the officer
his brother’s driver’s license and attempted to flee when
he was asked to follow the officer to the police station.
This led to new charges, to which Issaq pleaded guilty.
The court sentenced him to five years’ imprisonment as
the penalty for violating his probation for the residential
No. 09-2288 3
burglary, and it imposed an additional year, to run con-
currently, for obstruction of justice in connection with
the new conviction for the traffic violation.
I
When Issaq’s problems with the law came to the at-
tention of the Department of Homeland Security (“DHS”),
it initiated proceedings in which it charged that Issaq
was removable as an alien convicted of an aggravated
felony. 8 U.S.C. § 1227(a)(2)(A)(iii). At an October 2008
hearing before an Immigration Judge (“IJ”), Issaq con-
ceded that residential burglary, a Class 1 felony in Illinois,
720 ILCS 5/19-3(b), is an “aggravated felony” within the
meaning of the Immigration and Nationality Act (“INA”),
see 8 U.S.C. §§ 1101(a)(43)(G) and 1227(a)(2)(A)(iii). A
month later, Issaq applied for asylum, withholding of
removal, and relief under the Convention Against Torture
(“CAT”). In his application, Issaq asserted that because
of his identity as an Assyrian Christian, he faced life-
threatening persecution and torture at the hands of
Muslim extremists if he were returned to Iraq.
The IJ held a hearing on Issaq’s case on December 17,
2008. The judge began by confirming that Issaq was
ineligible for asylum because his residential burglary
offense was an aggravated felony. Next, the judge
found that Issaq’s crime was “particularly serious” (an-
other term of art under the INA), and thus he was
barred from withholding of removal by 8 U.S.C.
§ 1231(b)(3)(B)(ii). This left just one question: whether
4 No. 09-2288
Issaq was entitled to relief in the form of withholding of
removal under the CAT.
Issaq testified that he believed that he would be
tortured in Iraq on account of his religion. His belief
was based solely on his membership in the group of
Assyrian Christians; he offered no reason why he in
particular would be singled out. Cross-examination
revealed that he was unaware of the fact that there are
approximately a million Christians currently living in
Iraq. Issaq’s father, Isho Shamoon, testified that the
entire extended family has now left Iraq. Shamoon
shared the opinion that his son would be killed if he
were returned. Radicals, he stated, had been asking
about the family, and a former neighbor warned him
that “they” were looking for Shamoon. This was enough
to endanger the son as well, Shamoon thought. Issaq’s
mother, Leila Youkhana, also testified. She mentioned
pressure on Christian women in Iraq to adopt Muslim
dress, and she too predicted that Issaq would be killed
if he were sent back.
The IJ found all of this testimony credible but insuf-
ficient to warrant relief under the CAT. Iraq, the judge
observed, has undergone “vast changes” since 1991, when
Issaq’s family left the country. Given the number of
Christians, and even Christians of Assyrian ethnicity,
the court found no basis for the family’s dire predictions
of death or torture. Indeed, the court found no evidence
apart from these opinions about the likelihood of tor-
ture. He acknowledged the fact that there is social fric-
tion and violence in Iraq today, but that alone was not
No. 09-2288 5
enough to show that Issaq would be tortured by a public
official, or that the government would condone his torture
by others. Notably, however, the IJ had nothing to say
about an International Religious Freedom Report that
Issaq had tendered in support of his petition on the day
of the hearing. See http://www.state.gov/g/drl/rls/ irf/2008/
108483.htm (last visited August 13, 2010). That Report
catalogued several incidents in Iraq of abuse against
Assyrian Christians. It also noted, under the heading
“Abuses by Rebel or Foreign Forces or Terrorist Organi-
zations” that
[m]any individuals from various religious groups
were targeted because of their religious identity or
secular leanings. Acts committed against them in-
cluded not only harassment and intimidation but
also kidnapping and murder. The general lawless-
ness that permitted criminal gangs, terrorists, and
insurgents to victimize citizens with impunity af-
fected persons of all ethnicities and religious groups.
The magnitude of sectarian attacks, while difficult
to track, appeared to decline during the reporting
period. While such incidents were progressively
fewer, Shi’a in Sunni-dominated neighborhoods,
Sunnis in Shi’a-dominated neighborhoods, and reli-
gious minorities in both Sunni- and Shi’a-dominated
neighborhoods reported receiving death threat letters
demanding that they leave their homes, and in many
cases individuals either complied or were killed.
The IJ concluded by denying Issaq’s request for relief
under the CAT and ordering him removed to Iraq.
6 No. 09-2288
The Board of Immigration Appeals (“Board”) found that
the IJ had “adequately and correctly addressed the
issues presented.” In response to Issaq’s objection to the
finding that he was ineligible for withholding of removal,
the Board noted that once a crime is determined to be
particularly serious, there is no need for an additional
finding that the person is a danger to the community.
Even if he were not ineligible for withholding, the
Board continued, he could not prevail on the merits
because the record did not establish that his life or
freedom would be threatened in Iraq on the ground of
his race, religion, nationality, membership in a par-
ticular social group, or political opinion. See 8 U.S.C.
§ 1231(b)(3)(A). Nor did Issaq prove that it was
more likely than not that he would be tortured for any
cognizable reason if removed to Iraq. See 8 C.F.R.
§ 1208.16(c). Finally, the Board rejected without explana-
tion Issaq’s complaint that the IJ erred by failing to con-
sider the International Religious Freedom Report in
his analysis. Overall, it thought, he had received a fair
hearing and an acceptable explanation. Acting through
a single member, the Board thus dismissed his appeal.
II
In his petition for review in this court, Issaq raises
two arguments: first, that the Board erred when it charac-
terized his crime as “particularly serious” and for that
reason decided that he was ineligible for withholding of
removal, and second, that it committed legal error when
it determined that he could not qualify for relief under
No. 09-2288 7
the CAT. Citing 8 U.S.C. § 1252(a)(2)(C), the government
responds that this court lacks jurisdiction to adjudicate
the petition. It acknowledges that we would be auth-
orized to review the Board’s decision if Issaq’s petition
raised a constitutional or other question of law, see 8
U.S.C. § 1252(a)(2)(D), but it asserts that his petition fails
to do so.
A
We consider first Issaq’s effort to qualify for with-
holding of removal. His initial problem arises because
of the provision of the INA depriving the courts of juris-
diction to review any part of a removal order based on
a finding that the alien is an aggravated felon:
Notwithstanding any other provision of law (statutory
or nonstatutory) . . . and except as provided in sub-
paragraph (D), 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 section . . . 1227(a)(2)(A)(iii)
[which includes aggravated felonies] . . . of this
title . . . .
§ 1252(a)(2)(C). Notwithstanding the superficially abso-
lute nature of this language (apart from the exception
for subparagraph (D)), we have decided that it still
permits us to decide whether the person before the court
is the one who committed the crime, and whether the
crime was properly characterized as an aggravated
felony. E.g., Guerrero-Perez v. INS, 242 F.3d 727, 730 (7th
Cir. 2001).
8 No. 09-2288
More importantly for Issaq’s petition, subparagraph (D)
carves out an exception to the jurisdictional bar for
“constitutional claims or questions of law.” 8 U.S.C.
§ 1252(a)(2)(D). In applying this part of the statute, it
is important to distinguish between legal claims that
may be unlikely to prevail from claims that are so
lacking in substance that they should not be adjudicated
at all. In our view, Issaq’s arguments fall in the former
category, not the latter.
The first problem we must address, however, is
whether Issaq’s legal arguments are beside the point,
because the Board offered an alternative, fact-based
reason for denying relief. In its order, the Board said:
We further find that the respondent has not estab-
lished his eligibility for withholding of removal even
if he was not barred from consideration. He has not
established that his life or freedom would be threat-
ened in Iraq, a country he left 18 years ago, because
of his race, religion, nationality, membership in a
particular social group, or political opinion.
Issaq’s only argument about this part of the case is that
the Board’s decision rested on a flawed hearing before
the IJ. He phrases this as a due process argument, al-
though it would be better cast as an argument that he
did not receive the fair hearing to which he is entitled
under the statute. See Khan v. Mukasey, 517 F.3d 513, 518
(7th Cir. 2008). The key problem, as he sees it, was the
IJ’s failure to consider the International Religious
Freedom Report.
Issaq has continued in his petition for review to pur-
sue this argument. Although his brief does not make it
No. 09-2288 9
clear whether he wishes to make this point with respect
to both withholding and the CAT, or just the CAT, the
Report is pertinent to both (setting aside the issue
whether his crime was “particularly serious”), and so we
will give him the benefit of the doubt and consider it
for both theories. In our view, his contention that the
record on which the IJ and Board relied was deficient
is enough to support a legal argument with respect to
the Board’s alternate holding. It is troublesome that the
IJ made no mention of the Report. The Board seems to
have relied on a presumption of procedural regularity
and to have assumed that the IJ read and took ac-
count of the Report, but we have no idea whether this
is so. Normally, we require the Board to discuss the
key evidence that the parties have presented. See, e.g.,
Gebreeyesus v. Gonzales, 482 F.3d 952, 954 (7th Cir. 2007)
(citing Kay v. Ashcroft, 387 F.3d 664, 674 (7th Cir. 2004), and
Mansour v. INS, 230 F.3d 902, 908 (7th Cir. 2000)). But
Issaq cannot obtain a remand on this ground unless
he can show prejudice from any violation that occurred.
See Bayo v. Napolitano, 593 F.3d 495, 506 (7th Cir. 2010)
(en banc). The excerpt of the Report that we set out
above indicates that the problem of violence is pervasive
throughout Iraq; nothing suggests that every Assyrian
Christian faces a better than even chance of being
tortured or killed, nor is there anything in it to suggest
that Issaq faces a particular risk. Although the ques-
tion seems close to us, we conclude that the Report
is not enough on its own to support a finding that any
persecution Issaq would face would occur at the hands
of government agents, or would otherwise be con-
doned by the government.
10 No. 09-2288
In case we are wrong about that, and the evidence
including the Report would have supported withholding,
we think it prudent to turn to Issaq’s other argument
for this relief. The INA states that “an alien who has
been convicted of an aggravated felony (or felonies) for
which the alien has been sentenced to an aggregate
term of imprisonment of at least 5 years shall be con-
sidered to have committed a particularly serious crime.”
8 U.S.C. § 1231(b)(3)(B), final paragraph. It adds that
the Attorney General is also entitled to determine that,
“notwithstanding the length of sentence imposed, an
alien has been convicted of a particularly serious crime.”
Id. The question Issaq is raising is how to interpret the
phrase “aggregate term of imprisonment.” Whether an
agency correctly interprets a statute is a question of
law. See Huang v. Mukasey, 534 F.3d 618, 620 (7th Cir.
2008). Issaq argues that the term refers only to the sen-
tence that appears in the court’s initial judgment. With
that in mind, he points out that his initial sentence for
the residential burglary was 180 days’ imprisonment
plus two years’ probation; it was not until he violated
the terms of his probation that the sentence was ex-
tended by another five years. Focusing exclusively on
the initial sentence, he draws the conclusion that his
crime was not a “particularly serious” one.
Issaq’s position, however, disregards the use of the
word “aggregate” in § 1231(b)(3)(B)’s final paragraph. If
Congress had meant to look solely to the initial term of
imprisonment, it would have used different language.
Instead, it said “aggregate term,” a phrase that rules out
No. 09-2288 11
such a narrow reading. We conclude that all periods of
imprisonment associated with a particular conviction
must be counted toward the five years specified in the
statute. Issaq’s residential burglary crime thus led to
an aggregate of more than five years’ imprisonment
and was a “particularly serious” felony for purposes of
§ 1231(b)(3)(B). This makes it unnecessary for us to
decide whether the Attorney General abused his discre-
tion in characterizing the crime as “particularly seri-
ous” notwithstanding the length of the sentence.
The government complains that Issaq did not present
his argument about the meaning of the statute to the
Board, and thus (it says) our jurisdiction is barred on a
different ground—failure to exhaust. It is true that an
alien must exhaust “all administrative remedies avail-
able to the alien as of right,” 8 U.S.C. § 1252(d)(1), and
that this includes the obligation first to present to the
Board any arguments that lie within its power to address.
Ghaffar v. Mukasey, 551 F.3d 651, 655 (7th Cir. 2008). This
is not, however, a jurisdictional rule in the strict sense
that the Supreme Court has emphasized we must follow.
See Marin-Rodriguez v. Holder, 2010 WL 2757321 (7th Cir.
July 14, 2010) (No. 09-3105) (discussing Morrison v. Nat’l
Austl. Bank Ltd., 130 S. Ct. 2869 (2010); Reed Elsevier, Inc. v.
Muchnick, 130 S. Ct. 1237 (2010); and Union Pac. R.R. v.
Bhd. of Locomotive Eng’rs, 130 S. Ct. 584 (2009)). It is a case-
processing rule that limits the arguments available to
an alien in this court when those arguments have not
been raised properly at the agency level. Korsunskiy v.
Gonzales, 461 F.3d 847, 849-50 (7th Cir. 2006).
12 No. 09-2288
Before the IJ and the Board, Issaq stressed his argu-
ment that disentitlement to withholding of removal
should be conditioned on two findings, not just one: both
the commission of a particularly serious crime and a
finding that the person was a danger to the community.
See § 1231(b)(3)(B)(ii) (no withholding when “the alien,
having been convicted by final judgment of a partic-
ularly serious crime is a danger to the community of the
United States”). In addition, however, he did raise the
point about his initial term of imprisonment. We are not
inclined to find failure to exhaust, particularly as there
is some value in clarifying the scope of the statute.
B
Issaq also argued that he was entitled to relief under the
CAT. Once again, the government argues that we have
no jurisdiction to consider his argument, this time be-
cause Issaq was convicted of a “particularly serious”
crime and also because of the Board’s finding that his
case fails on the facts. In the end, we agree with the
government that his case has no merit, but we reach
that conclusion by a somewhat different path.
Although petitions for withholding of removal and
petitions for relief under the CAT are treated very simi-
larly, the regulations governing the CAT add one addi-
tional form of relief for a petitioner:
Protection under the Convention Against Torture
will be granted either in the form of withholding of
removal or in the form of deferral of removal.
No. 09-2288 13
8 C.F.R. § 1208.16(c)(4) (emphasis added). Section 1208.17
provides more details about the deferral of removal
process:
An alien who: has been ordered removed; has been
found under § 1208.16(c)(3) to be entitled to protec-
tion under the Convention Against Torture; and is
subject to the provisions for mandatory denial of
withholding of removal under § 1208.16(d)(2) or (d)(3)
[which include commission of a particularly serious
crime], shall be granted deferral of removal to the
country where he or she is more likely than not to
be tortured.
8 C.F.R. § 1208.17(a). Additional provisions of the regula-
tion make it clear that deferral of removal is at least
potentially a more restricted form of relief than with-
holding. For example, deferral does not confer on the
alien any lawful or permanent immigration status;
deferral will not necessarily result in the alien being
released from the custody if the alien is subject to
such custody; and deferral does not protect against re-
moval to a different country from the one in which
the alien is likely to be tortured. § 1208.17(b).
This court has struggled with the question whether
judicial review of orders denying relief under the CAT
based on the commission of an aggravated felony is
jurisdictionally barred. Compare Tunis v. Gonzales, 447
F.3d 547, 549 (7th Cir. 2006) (stating that an aggravated
felony bars review except under the CAT), with Petrov
v. Gonzales, 464 F.3d 800, 802 (7th Cir. 2006) (holding
that even a CAT claim is barred from review if it results
14 No. 09-2288
in a final order of removal that rests on a finding that
an aggravated felony was committed). In Petrov, we
pointed out that Tunis addressed only the effect of
§ 1252(a)(2)(B), which prohibits review of decisions com-
mitted to the discretion of the Attorney General or the
Secretary of Homeland Security, but that it was neces-
sary also to take into account the effect of § 1252(a)(2)(C),
which bars review of final orders of removal against
certain criminal aliens.
The Supreme Court’s decision in Negusie v. Holder, 129
S. Ct. 1159 (2009), underscores the need for precision
in evaluating the many different kinds of claims that
can arise under the immigration laws. There the Court
was concerned with the so-called “persecutor bar”
that applies to aliens who have persecuted others
on a prohibited basis. See 8 U.S.C. § 1101(a)(42). The
persecutor bar applies to those seeking asylum or with-
holding of removal, but “[i]t does not disqualify an
alien from receiving a temporary deferral of removal
under the Convention Against Torture . . . .” 129 S. Ct. at
1162; see also id. at 1178 n.1 (Thomas, J., dissenting)
(discussing the remedy of deferral of removal).
This raises the question whether a decision under the
CAT to deny even deferral of removal falls within the
jurisdiction-stripping provisions of either § 1252(a)(2)(B)
or § 1252(a)(2)(C). In our view, the answer is no. Once
an alien succeeds in proving the factual prerequisites
for relief under the CAT, we understand Negusie to hold
that some kind of remedy (complete with judicial review)
is available, even for persons such as persecutors, whose
No. 09-2288 15
claims for asylum or withholding of removal are barred
and unreviewable. Consistently with Tunis, then, relief
under the CAT is not barred by the ban on reviewing
discretionary decisions imposed by § 1252(a)(2)(B).
No one argued in Petrov that the remedy of deferral of
removal requires a distinct analysis, and so we cannot
take Petrov as the last word on that point. And indeed,
if an alien is attempting to challenge only a final order
of removal, as opposed to a deferral of removal, then
there is nothing to criticize in the holding of Petrov. If,
however, the alien also sought and might have been
entitled to the inherently non-final remedy of deferral
of removal, then § 1252(a)(2)(C) (which speaks only of
a final order) appears to be inapplicable.
This possibility appears to be of little help for Issaq,
because nothing in the record suggests that he was
seeking a deferral of removal. He relied instead on the
argument that his due process rights were violated by
the IJ’s failure to read and take into account the facts in
the International Religious Freedom Report. As we noted
earlier, to the extent that the IJ indeed overlooked this
evidence, there is a potential problem. But it is not one
that allows Issaq to prevail in the end, because he
cannot show how he was prejudiced by the IJ’s error.
Even taking the Report into account, the link to govern-
mental action is too weak, and the evidence showing
that Issaq would be tortured or killed is too conclusory.
For these reasons, the petition for review is D ENIED.
16 No. 09-2288
R IPPLE, Circuit Judge, concurring. I join in the judgment
of the court, and its fine opinion with the exception of
its jurisdictional discussion pertaining to claims for
deferral of removal under the Convention Against Tor-
ture. I understand the court to take the view that, in
spite of 8 U.S.C. § 1252(a)(2)(C), which bars review of
final orders of removal against certain criminal aliens,
this court does have jurisdiction to review claims re-
garding the denial of deferral of removal made by such
aliens. Our jurisdiction extends, according to the majority
opinion, not only to those petitions raising constitutional
claims and questions of law, see id. § 1252(a)(2)(D),
but also to claims by a covered alien that the Board’s
determination regarding the likelihood of torture upon
repatriation is not supported by substantial evidence,
see Maj. op. at 14-15.
As the court acknowledges, id. at 15, this question
is not squarely presented in the case before us and, there-
fore, need not be decided at this time. Furthermore, I find
the court’s reliance on Negusie v. Holder, 129 S. Ct. 1159
(2009), Petrov v. Gonzales, 464 F.3d 800 (7th Cir. 2006), and
Tunis v. Gonzales, 447 F.3d 547 (7th Cir. 2006), to be a
relatively thin reed upon which to base the conclusion
regarding our jurisdiction that the court reaches today.
Moreover, although one of our sister circuits has
indeed reached the same result on an entirely different
basis, see Lemus-Galvan v. Mukasey, 518 F.3d 1081, 1083
(9th Cir. 2008), the court neither discusses nor criticizes
that approach. Nor does it discuss the opposing view.
See Saintha v. Mukasey, 516 F.3d 243, 248-49 (4th Cir. 2008)
No. 09-2288 17
(dismissing, for lack of jurisdiction, a petition seeking
review of a decision denying deferral of removal after
concluding that § 1252(a)(2)(C) applied to the deferral
claim and that the exception for constitutional claims
or questions of law did not apply).
I think the better course is to follow the approach of
some of our other sister circuits and reserve judgment
until the issue is squarely presented and fully briefed
and argued before us. See De La Rosa v. Holder, 598 F.3d
103, 107 (2d Cir. 2010) (noting the Ninth Circuit posi-
tion but expressly declining to decide the issue because
the petition only presented a question of law concerning
eligibility for deferral); Cherichel v. Holder, 591 F.3d 1002,
1009, 1017 (8th Cir. 2010) (noting that the jurisdiction-
stripping provision generally applies to CAT claims, but
deciding the case under the question of law exception
without any discussion of further exemptions to the
criminal alien jurisdiction-stripping provision that would
preserve review of such aliens’ deferral claims).
8-17-10