Karim, Nafez v. Keisler, Peter D. , 244 F. App'x 47 ( 2007 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued June 13, 2007
Decided July 31, 2007
Before
Hon. JOHN L. COFFEY, Circuit Judge
Hon. JOEL M. FLAUM, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 06-2176
NAFEZ KARIM, Petition for Review of an Order of the
Petitioner, Board of Immigration Appeals
v. No. A76 766 689
ALBERTO R. GONZALES, Attorney
General of the United States,
Respondent.
ORDER
Nafez Karim, a citizen of Jordan, petitions for review of an order of the Board
of Immigration Appeals denying his motion to reopen his immigration proceedings
so he could apply a second time for cancellation of removal and apply in the first
instance for asylum and relief under the Convention Against Torture. In the
motion Karim emphasizes that he recently discovered he has been sentenced to
imprisonment in Jordan for a crime he did not commit. The BIA found Karim’s
evidence “too general and unreliable” to demonstrate that he would likely be
imprisoned if he returned to Jordan. We dismiss Karim’s petition in part, and deny
it in part.
No. 06-2176 Page 2
Karim entered the United States on a student visa in 1987 and has since
married and had two children, presently four and two years old. The Immigration
and Nationality Services initiated removal proceedings against him in 2003.
Karim admitted the facts contained in the Notice to Appear and conceded
removability, but sought cancellation of removal under 8 U.S.C. § 1229b(b) based on
the economic hardship his children would experience living in Jordan.
An immigration judge denied Karim’s application because he failed to satisfy
§ 1229b(b)(1)(D), which requires that the hardship to his children be “exceptional
and extremely unusual.” See 8 U.S.C. § 1229b(b)(1)(D). The IJ explained that an
applicant cannot demonstrate exceptional hardship based on poor economic
conditions alone and concluded that Karim’s children should have little other
difficulty adjusting to life in Jordan because of their young age. The BIA affirmed,
adopting the IJ’s decision. Within 90 days, Karim filed the motion to reopen at
issue in this appeal.
To substantiate his belief that he would be wrongfully imprisoned if he
returned to Jordan, Karim presented two exhibits. First, he appended a peculiar
letter from his attorney in Jordan warning him not to return because a judgment
recorded in a so-called “Government computer” indicates he will be imprisoned for
an unidentified crime.1 Second, he produced a “Notification and subpoena Order”
dated January 2006 that was purportedly requested by Jordan’s “Registrar of
Amman First Instance Executive Court,” and which Karim claimed was verified by
the Jordanian consulate located in Chicago. Karim noted that he had hired a
Jordanian attorney after receiving the BIA’s decision, and the attorney discovered
the judgment in the process of renewing his passport. Karim insisted that he had
no reason to have discovered the judgment sooner. He next argued that “his
imprisonment in Jordan is directly correlated to the degree of hardship his U.S.
Citizen children would suffer” and thus that his cancellation-of-removal claim
should be reopened He also asserted that his discovery of his impending
imprisonment made him eligible to apply for asylum and relief under CAT. He
attached an incomplete asylum application that invoked both CAT and membership
in an unspecified social group.
The BIA denied Karim’s motion because it found his newly submitted
evidence “too general and unreliable” to merit reopening. The BIA specifically
noted three flaws in Karim’s submission: he (1) failed to provide background
1
Karim’s brief cryptically hints that the judgment against him stems from a lawsuit
“over a car” brought by a tribe that, he says, controls the courts in Jordan. Karim believes this
tribe has sued him because he is Palestinian and because his brother “ran off” with a woman
from the tribe.
No. 06-2176 Page 3
information about the criminal or civil justice systems in Jordan necessary to put
the “alleged conviction into context”2; (2) failed to explain why his attorney could not
have inquired further into the alleged conviction; and (3) failed to explain why the
subpoena was authenticated by the Jordanian consulate in Chicago rather than
pursuant to 8 C.F.R. § 287.6(b), which requires official records from foreign
countries to be certified by a United States Foreign Services officer stationed in the
country where such records are kept. Without such information, the BIA concluded,
it could not “assess the likelihood” that Karim would be imprisoned or subjected to
harm if he returned to Jordan. Karim petitioned for review.
Karim takes issue with the BIA’s rejection of his evidence as “too general and
unreliable.” He asserts that his newly submitted evidence—the letter from his
Jordanian attorney and the subpoena—is sufficiently specific and reliable to show
that he would be imprisoned for a crime he did not commit if he returned to Jordan.
That fate, in his view, establishes his prima facie eligibility for cancellation of
removal, asylum, and relief under CAT, and thus he contends that the BIA erred by
denying his motion.
Motions to reopen are “strongly disfavored,” and the BIA’s decision to deny a
motion to reopen is reviewed for an abuse of discretion. Selimi v. Ashcroft, 360 F.3d
736, 739 (7th Cir. 2004). The BIA may deny a motion to reopen if, among other
reasons, the petitioner fails to establish prima facie eligibility for the underlying
relief sought. Fessehaye v. Gonzales, 414 F.3d 746, 754 (7th Cir. 2005); Awad v.
Ashcroft, 328 F.3d 336, 341 (7th Cir. 2003).
Initially Karim addresses his eligibility for cancellation of removal. He
argues that the BIA erred in denying his motion since, in his opinion, his children
would face “exceptional and extremely unusual hardship” if he were imprisoned and
could not work. See 8 U.S.C. § 1229b(b)(1)(D). The government counters that 8
U.S.C. § 1252(a)(2)(B) strips this court of jurisdiction to hear Karim’s argument.
Karim does not respond to the government.
We agree with the government’s point. Karim seeks review of an exercise of
discretion regarding cancellation of removal under § 1229b, but decisions under
that section are not reviewable by the federal courts. 8 U.S.C. § 1252(a)(2)(B)(i)
(“ . . . no court shall have jurisdiction to review . . . any judgment regarding the
granting of relief under section 1182(h), 1182(i), 1229b, 1229c, or 1255 of this title”);
Martinez-Maldonado v. Gonzales, 437 F.3d 679, 683 (7th Cir. 2006) (jurisdiction
2
The subpoena does not explain whether the underlying matter is criminal or civil. Nor
does it indicate whether Karim is a party to the underlying matter or simply a potential
witness.
No. 06-2176 Page 4
lacking to review BIA’s denial of motion to reopen based on determination that
hardship would not be “exceptional and extremely unusual”); Dave v. Ashcroft, 363
F.3d 649, 652 (7th Cir. 2004). Accord Patel v. United States Att’y Gen., 334 F.3d
1259, 1262 (11th Cir. 2003); Rodriguez v. Ashcroft, 253 F.3d 797, 800 (5th Cir.
2001). And nothing in the REAL ID Act of 2005 alters that result here because
Karim raises neither “constitutional claims” nor “questions of law.” 8 U.S.C.
§ 1252(a)(2)(D); see Mireles v. Gonzales,433 F.3d 679, 968 (7th Cir. 2006).
Karim next deals with his request to apply for asylum. He argues without
elaboration that the BIA erred in denying reopening because, according to Karim,
the letter from his attorney and the subpoena demonstrate that he has a reasonable
fear of future persecution.
The BIA did not abuse its discretion by finding Karim’s evidence “too general
and unreliable” to form the basis of such a showing. If an asylum applicant seeks
reopening based on previously unavailable evidence, the BIA may still deny the
motion if the applicant fails to demonstrate a reasonable likelihood that he could
ultimately establish his eligibility. See Kay v. Ashcroft, 387 F.3d 664, 674 (7th Cir.
2004); Awad v. Ashcroft, 328 F.3d 336, 341 (7th Cir. 2003). In Karim’s case, he
would have to demonstrate that his fear of future persecution is both subjectively
genuine and grounded in an objectively reasonable basis. See Gomes v. Gonzales,
473 F.3d 746, 755 (7th Cir. 2007); Ahmed v. Ashcroft, 348 F.3d 611, 618 (7th Cir.
2003). This he cannot do. Nothing in this record, for instance, provides background
information about the judicial system in Jordan that would explain the significance
of the subpoena, let alone suggests why the recipient of a subpoena in Jordan
should reasonably fear imprisonment. In any event, Karim did not explain why
imprisonment in his case would have amounted to “persecution.” “[T]he asylum
statute . . . requires persecution ‘on account of’ one of the five protected statutory
grounds [race, religion, nationality, membership in a social group, or political
opinion].” Tamas-Mercea v. Reno, 222 F.3d 417, 425 (7th Cir. 2000); 8 U.S.C.
§ 1101(a)(42)(A). See also Wang v. Gonzales, 445 F.3d 993, 998 (7th Cir. 2006)
(concluding that alien’s failure to demonstrate she was persecuted “because of” her
membership in enumerated group “doom[ed]” her claim); Kharkhan v. Ashcroft, 336
F.3d 601, 605 (7th Cir. 2003) (same).
Karim finally argues that the BIA should have granted his motion because he
established his prima facie eligibility for relief under CAT. But because Karim has
not met the more lax burden of proof to demonstrate prima facie eligibility for
asylum, there is no need for us to consider his eligibility under the more stringent
standards that apply to CAT. See 8 C.F.R. § 208.16(c)(2); Shmyhelskyy v. Gonzales,
477 F.3d 474, 481-82 (7th Cir. 2007).
No. 06-2176 Page 5
For these reasons, we DISMISS Karim’s petition for review of his
cancellation-of-removal claim, and DENY Karim’s petition for review of his asylum
and CAT claims.