Babray Hanan v. Michael B. Mukasey ( 2008 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 07-1203
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Babray Hanan, *
*
Petitioner, *
*
v. * Petition for Review from the
* Board of Immigration Appeals.
1
Michael B. Mukasey, Attorney *
General of the United States of *
America, *
*
Respondent. *
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Submitted: November 14, 2007
Filed: March 14, 2008
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Before MURPHY, HANSEN and GRUENDER, Circuit Judges.
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GRUENDER, Circuit Judge.
Babray Hanan, a citizen of Afghanistan, petitions for review of the Board of
Immigration Appeals’ (“BIA”) denial of his motion to reopen his immigration
proceedings. For the reasons discussed below, we deny the petition in part and
dismiss the remainder for lack of subject matter jurisdiction.
1
Michael B. Mukasey has been appointed to serve as Attorney General of the
United States of America and is substituted as respondent pursuant to Federal Rule of
Appellate Procedure 43(c)(2).
I. BACKGROUND
In 1980, Hanan, a member of the Pashtun ethnic group, was paroled into the
United States after the Soviet Union invaded Afghanistan.2 In 1983, a jury convicted
Hanan of importation of heroin, in violation of 21 U.S.C. §§ 952(a) and 960, and
possession of heroin with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1).
Hanan received concurrent sentences of three years’ imprisonment. He was released
after serving twenty-two months. In 1984, the Immigration and Naturalization Service
(“INS”) began exclusion proceedings because of Hanan’s conviction. Hanan filed
applications for asylum and withholding of deportation. The Immigration Judge (“IJ”)
denied these applications. The INS, however, did not remove Hanan because of the
political difficulties between the United States and Afghanistan. Instead, it permitted
Hanan to remain temporarily in the United States on parole status.
In 1999, Hanan filed a motion to reopen his immigration proceedings to seek
relief under the Convention Against Torture (“CAT”). His motion to reopen was
granted. In a 2002 hearing, Hanan presented evidence that the Taliban rose to power
after the Soviet Union left Afghanistan and that the Taliban harbored terrorist groups.
Hanan believed he would be targeted for torture by the Taliban authorities if he
returned to Afghanistan based on his Pashtun ethnicity. On October 23, 2002, the IJ
denied Hanan’s application for deferral of removal under CAT and ordered him
deported. The IJ determined that the Taliban was no longer in power and that the
allied forces protected the Kabul population, where Hanan previously lived. On April
6, 2004, the BIA affirmed this decision.
Hanan attempted to file a petition for review in this court before the REAL ID
Act of 2005 was enacted. On July 7, 2004, we dismissed his petition for lack of
2
A more detailed factual background can be found in this court’s previous
decision of Hanan v. Gonzales, 449 F.3d 834 (8th Cir. 2006).
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subject matter jurisdiction. See Hanan v. Ashcroft, No. 04-2010 (8th Cir. July 7,
2004). Hanan’s heroin convictions classified him as a “criminal alien” under 8 U.S.C.
§ 1252(a)(2)(C), and prior to the REAL ID Act, we lacked jurisdiction over a petition
for review from a final order of removal of a criminal alien. See 8 U.S.C. §
1252(a)(2)(C) (1996) (“Notwithstanding any other provision of law . . . 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 . . . §
1227(a)(2)(B) . . . .”). On August 9, 2004, Hanan filed a petition for a writ of habeas
corpus and a motion for a temporary restraining order. The district court granted a
temporary restraining order that permitted Hanan to stay in the United States while his
habeas petition was pending. In 2005, the REAL ID Act was enacted and gave us
jurisdiction to review “constitutional claims or questions of law” brought by criminal
aliens. See 8 U.S.C. § 1252(a)(2)(D). Hanan’s habeas petition was transferred to this
court from the district court. See REAL ID Act of 2005, Pub. L. No. 109-13, § 106(c),
119 Stat. 231, 311 (codified at 8 U.S.C. § 1252 note).
A panel of this court dismissed Hanan’s habeas petition for lack of subject
matter jurisdiction. Hanan v. Gonzales, 449 F.3d 834 (8th Cir. 2006). While the
REAL ID Act gave the panel jurisdiction to review constitutional claims and questions
of law, the panel held that Hanan only challenged the IJ’s factual determinations. Id.
at 837. The panel refused to consider country reports for years after the IJ’s decision
submitted by Hanan because the reports were not part of the administrative record. Id.at 837 n.3. The panel stated that Hanan would need to file a motion to reopen his case
to include those reports in the administrative record. Id.Following the panel’s directive, Hanan filed a motion to reopen his immigration
proceedings in order to have the more recent country reports considered. He argued
that although the United States-led coalition forces removed the Taliban in 2001, these
coalition forces do not control the entire country of Afghanistan. Instead, the warlord
forces in Afghanistan target and abuse Pashtuns, and the Taliban has since returned
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to continue fighting. He claims that he is likely to suffer torture if he returns to
Afghanistan because he opposes the Taliban. The Taliban would also target him
because he resided in the United States for many years and he is a Pashtun. According
to Hanan, the Taliban is opposed to people who accept the Western lifestyle and
targets Pashtuns to torture and kill them. With the Taliban’s and warlords’ continued
presence, Hanan argued that the Afghan government could not provide security to its
citizens throughout the country.
On December 29, 2006, the BIA denied his motion to reopen. It first found that
the motion was untimely under 8 C.F.R. § 1003.2(c) because it was filed more than
ninety days after the BIA’s decision. It then acknowledged that it may still consider
the motion if the motion “[t]o apply or reapply for asylum or withholding of
deportation [was] based on changed circumstances arising in the country of
nationality.” 8 C.F.R. § 1003.2(c)(3)(ii). The BIA held that Hanan did not
demonstrate that this exception applied to his motion. It found that Hanan only
generally stated that he feared the Taliban and that he did not connect his “very
generalized fear of return to the evidence of country conditions submitted with his
motion.” The BIA also noted that “he has not demonstrated that the Afghanistan
government acquiesces, consents, or participates in torture committed by the Taliban
or against persons of Pashtun ethnicity or who have had lengthy residence in the
United States.” Hanan filed a petition for review in this court.
II. DISCUSSION
As an initial matter, we must determine whether we have jurisdiction to review
the BIA’s denial of Hanan’s motion to reopen. Generally, we have jurisdiction to
review “a final order of removal.” 8 U.S.C. § 1252(a)(1). “Implicit in the grant of
authority to review a final BIA order is the authority to review an order denying a
motion to reopen the final order.” Jalloh v. Gonzales, 423 F.3d 894, 895 (8th Cir.
2005). However, our jurisdiction to review final orders of removal and denials of
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motions to reopen final orders is limited. If an alien is a criminal alien under 8 U.S.C.
§ 1252(a)(2)(C), our jurisdiction to review his denial of a motion to reopen a final
order of removal is limited to constitutional claims and questions of law. 8 U.S.C. §
1252(a)(2)(C)-(D); see Cruz v. Attorney Gen. of the United States, 452 F.3d 240, 246-
47 (3d Cir. 2006) (“[I]f an alien is removable for having committed one of the
offenses enumerated in 8 U.S.C. § 1252(a)(2)(C), we lack jurisdiction to review a
denial of a motion to reopen, except to the extent that it raises constitutional claims
or questions of law.”). We review constitutional claims and questions of law de novo.
See Mohamed v. Gonzales, 477 F.3d 522, 525 (8th Cir. 2007).
Hanan acknowledges that he is a criminal alien under 8 U.S.C. § 1252(a)(2)(C),
but he argues that his petition raises a constitutional claim because the BIA violated
his due process rights when it denied his motion to reopen.3 Hanan’s due process
argument primarily consists of his claim that the BIA incorrectly found that Hanan did
not show changed circumstances to permit the BIA to consider his untimely motion
to reopen. We reject Hanan’s attempt to characterize a factual question as a
constitutional question. See Mouawad v.Gonzales, 485 F.3d 405, 411 (8th Cir. 2007)
(dismissing, in part, for lack of jurisdiction because Mouawad did not “raise any
colorable constitutional challenges or questions of law as to the IJ’s determinations
that Mouawad failed to meet the deadline and failed to show sufficient extraordinary
or changed circumstances”). We lack jurisdiction to review factual findings. See
Purwantono v. Gonzales, 498 F.3d 822, 824 (8th Cir. 2007) (“Whatever the precise
scope of the ‘constitutional claims or questions of law’ under the terms of the REAL
ID Act, the statute’s conferral of jurisdiction does not extend to review of the agency’s
findings of fact . . . .”).
3
Hanan also argues that the BIA erred by not reopening the proceedings on its
own motion as permitted by 8 C.F.R. § 1003.2(a). We lack jurisdiction to review this
discretionary decision. See Tamenut v. Mukasey, No. 05-4418, slip op. at 2 (8th Cir.
Mar. 11, 2008) (en banc) (per curiam).
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Hanan also argues that the BIA violated his due process rights by failing to
consider the country reports and his affidavit that he submitted with the motion to
reopen. Because an allegation of wholesale failure to consider evidence implicates
due process, we have jurisdiction to review this constitutional question. See Tun v.
Gonzales, 485 F.3d 1014, 1025 (8th Cir. 2007) (stating that the Fifth Amendment’s
Due Process Clause entitles an alien to a fair hearing in removal proceedings where
he may “fairly present evidence, offer arguments, and develop the record”); see also
8 U.S.C. § 1229a(b)(1) (“The immigration judge shall . . . receive evidence . . . .”).
However, the BIA specifically mentioned the country reports and Hanan’s affidavit
in its order and ultimately held that “[Hanan] does not relate his very generalized fear
of return to the evidence of country conditions submitted with his motion.” The
record does not support Hanan’s claim that the BIA did not consider his submissions,
and we reject his due process argument.
Hanan next raises the legal argument that the BIA used an incorrect definition
of acquiescence in its CAT analysis. He contends that the BIA failed to acknowledge
that the Afghan government could acquiesce in the torture if it was aware of the
torture and failed to intervene. See 8 C.F.R. § 1208.18(a)(7) (“Acquiescence of a
public official requires that the public official, prior to the activity constituting torture,
have awareness of such activity and thereafter breach his or her legal responsibility
to intervene to prevent such activity.”). In its order, the BIA first correctly cited 8
C.F.R. § 1208.18, the regulatory provision that includes the full definition of
acquiescence. While the BIA did not repeat the definition found in § 1208.18, it then
held that “[Hanan] has not demonstrated that the Afghanistan government acquiesces,
consents, or participates in torture committed by the Taliban . . . .” We find no
support in the record for Hanan’s claim that the BIA used the incorrect definition of
acquiescence, especially when it cited to the provision containing the correct
definition.
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III. CONCLUSION
For the foregoing reasons, we deny Hanan’s petition for review regarding his
constitutional argument that the BIA did not properly consider the submitted country
reports and Hanan’s affidavit and his legal argument that the BIA used the incorrect
standard for acquiescence. We dismiss the remainder of his petition for lack of
subject matter jurisdiction.
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