Nidal Khalid Nasrallah v. U.S. Attorney General ( 2019 )


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  •                Case: 17-13105      Date Filed: 02/14/2019     Page: 1 of 13
    [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 17-13105
    ________________________
    Agency No. A089-427-907
    NIDAL KHALID NASRALLAH,
    Petitioner,
    versus
    U.S. ATTORNEY GENERAL,
    Respondent.
    ________________________
    Petition for Review of a Decision of the
    Board of Immigration Appeals
    _______________________
    (February 14, 2019)
    Before TJOFLAT, WILLIAM PRYOR, and GILMAN, * Circuit Judges.
    GILMAN, Circuit Judge:
    *
    Honorable Ronald Lee Gilman, United States Circuit Judge for the Sixth Circuit, sitting by
    designation.
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    Petitioner Nidal Khalid Nasrallah, a native and citizen of Lebanon, pleaded
    guilty to two counts of receiving stolen property in interstate commerce. An
    immigration judge (IJ) determined that one of those convictions made Nasrallah
    subject to removal as an alien convicted of a crime involving moral turpitude, but
    granted him a deferral of removal under the Convention Against Torture (CAT).
    On appeal, the Board of Immigration Appeals (BIA) held that the IJ erred by
    granting Nasrallah a deferral and ordered his removal.
    Nasrallah filed a timely petition for review, arguing that (1) the IJ acted with
    prejudicial bias, (2) the BIA erred in determining that Nasrallah’s conviction
    constituted a “crime involving moral turpitude,” (3) the BIA erred in concluding
    that Nasrallah committed a “particularly serious crime,” and (4) the BIA erred in
    overturning the IJ’s determination that Nasrallah was eligible for a deferral of
    removal under the CAT. For the reasons set forth below, we DENY IN PART
    AND DISMISS IN PART Nasrallah’s petition for review.
    I.    BACKGROUND
    Nasrallah was 17 years old when he entered the United States on a tourist
    visa in 2006. He became a lawful permanent resident the following year.
    On November 11, 2011, the United States government filed an indictment
    against Nasrallah, charging him under 
    18 U.S.C. § 2315
     with eight felony counts
    of receiving stolen property in interstate commerce. The indictment alleged that
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    Nasrallah knowingly purchased and received stolen cigarettes for the purpose of
    resale. He allegedly purchased at least 273 cases of cigarettes, with a total
    wholesale value of $587,096, in the course of eight separate transactions between
    December 2010 and August 2011.
    Pursuant to a plea bargain agreement, Nasrallah pleaded guilty to two of the
    eight counts, and the government dismissed the others. Nasrallah was then
    sentenced to 12 months’ imprisonment on each count, to be served concurrently.
    He was also ordered to forfeit all monetary proceeds from the resale of the stolen
    property. Nasrallah began his sentence in August 2014 after the district court
    permitted him to defer his sentence for one year so that Nasrallah could complete
    his college degree.
    While Nasrallah was incarcerated, U.S. Immigration and Customs
    Enforcement (ICE) determined that Nasrallah’s convictions under 
    18 U.S.C. § 2315
     rendered him removable as an alien convicted of an “aggravated felony.”
    The relevant statute defines an “aggravated felony” to include “a theft offense
    (including receipt of stolen property) or burglary offense for which the term of
    imprisonment [is] at least one year.” 
    8 U.S.C. § 1101
    (a)(43)(G). This prompted
    Nasrallah to request the district court to reduce his prison sentence from one year
    to 364 days, which the court did. As a result, Nasrallah was not classified as an
    aggravated felon under 
    8 U.S.C. § 1101
    (a)(43)(G).
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    The government subsequently sought to remove Nasrallah under 
    8 U.S.C. § 1227
    (a)(2)(A)(i), which permits the removal of any alien convicted of a “crime
    involving moral turpitude” committed within five years after the date of admission
    for which a sentence of one year or longer may be imposed. Nasrallah then
    applied for withholding of removal and CAT protection because these forms of
    relief allow an individual convicted of a crime involving moral turpitude to avoid
    removal. In Nasrallah’s application, he alleged that he would be tortured and
    persecuted in Lebanon by groups such as Hezbollah and ISIS because of his Druze
    religion and western ties.
    Nasrallah claimed that, while living in Lebanon, he and a friend encountered
    members of Hezbollah on a mountain. The Hezbollah members shot guns in the
    air and shouted for Nasrallah and his friend to stop. Nasrallah ran away and
    jumped off a cliff to escape, severely injuring his back.
    The government also contended that Nasrallah had been convicted of a
    particularly serious crime, making him ineligible for withholding of removal. See
    
    8 U.S.C. § 1231
    (b)(3)(B)(ii). Nasrallah argued that his conviction under 
    18 U.S.C. § 2315
     neither involved moral turpitude nor was a particularly serious crime.
    According to the indictment, however, Nasrallah knowingly purchased the
    cigarettes in question believing that they were obtained from violent thefts in
    which individuals hijacked trucks and robbed guarded storage facilities. Nasrallah
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    also procured $249,500 in cash to purchase the cigarettes, which the government
    contends is an indication of a significant level of criminal sophistication and
    organization.
    The IJ concluded that Nasrallah could be removed both because he had
    committed a crime involving moral turpitude and because he had committed a
    particularly serious crime. In explaining her reasoning, the IJ noted that cigarette
    trafficking is connected to organized crime and terrorist groups. Although nothing
    in the record suggests that Nasrallah was directly involved with such organizations,
    the IJ reasoned that “all participation in the black market runs the risk of
    supporting these entities” and “motivating their dangerous criminal activities.”
    The IJ nevertheless determined that Nasrallah was eligible for deferral of
    removal under the CAT because he had established a clear probability of torture in
    Lebanon. She relied on Nasrallah’s chance encounter with Hezbollah, background
    evidence that the Lebanese government acquiesces in Hezbollah activity, and
    information that ISIS targets the Druze in Syria and Lebanon. Moreover, the IJ
    found that Nasrallah’s “western ties” could subject him to torture if he were
    removed.
    Both the government and Nasrallah appealed the IJ’s decision to the BIA.
    On appeal, the BIA agreed with the IJ’s conclusion that Nasrallah’s convictions
    involved moral turpitude and were particularly serious crimes, but reversed the IJ’s
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    grant of CAT protection. The BIA determined that Nasrallah’s single encounter
    with Hezbollah did not constitute past torture and that generalized civil strife in
    Lebanon did not show that Nasrallah would “personally be targeted for harm rising
    to the level of torture if removed to Lebanon.” This timely petition for review
    followed.
    II.   ANALYSIS
    A.      Standard of review
    “We review only the [BIA]’s decision, except to the extent that it expressly
    adopts the IJ’s opinion.” Najjar v. Ashcroft, 
    257 F.3d 1262
    , 1284 (11th Cir. 2001).
    “This court reviews administrative fact findings under the highly deferential
    substantial evidence test.” Adefemi v. Ashcroft, 
    386 F.3d 1022
    , 1026–27 (11th Cir.
    2004) (en banc). “In sum, findings of fact made by administrative agencies, such as
    the BIA, may be reversed by this court only when the record compels a reversal;
    the mere fact that the record may support a contrary conclusion is not enough to
    justify a reversal of the administrative findings.” 
    Id. at 1027
    . We review
    conclusions of law de novo. Rivera v. U.S. Att’y Gen., 
    487 F.3d 815
    , 820 (11th
    Cir. 2007).
    B.      Alleged prejudicial bias
    Nasrallah alleges that the IJ exhibited prejudicial bias by suggesting a
    potential connection between Nasrallah’s black-market transactions and organized
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    crime or terrorist activity. The IJ asked Nasrallah’s counsel for background
    evidence about these organizations and the black market and then justified her
    decision by using the evidence produced. Nasrallah further alleges that the IJ
    prejudicially connected him to terrorism because of his Middle Eastern origins.
    The BIA concluded that the IJ did not exhibit bias. It noted that an IJ must
    evaluate “the overall level of harm to the community” arising from any crimes
    committed by an immigrant. The IJ found no evidence that Nasrallah was
    personally involved in organized crime or terrorism, but she noted that illicit
    cigarette trafficking often supports such activities. As stated by the IJ, “all
    participation in the black market runs the risk of supporting these entities.”
    Nasrallah has failed to demonstrate that the IJ’s decision exhibits bias or that
    her request for background information was based on Nasrallah’s race, religion, or
    national origin. IJs have broad discretion to conduct their hearings, although an IJ
    may violate a petitioner’s due process rights by failing to act as “an impartial trier
    of fact.” Matter of Lam, 
    14 I. & N. Dec. 168
    , 171 (B.I.A. 1972); see also Bi Qing
    Zheng v. Lynch, 
    819 F.3d 287
    , 297 (6th Cir. 2016) (noting that IJs must “ensure
    that their positions as neutral arbiters do not take on that of advocates”). We
    conclude that Nasrallah has failed to identify any prejudicial bias or impermissible
    advocacy by the IJ.
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    C.     Crime involving moral turpitude
    Nasrallah next argues that the BIA erred in classifying his conviction as a
    crime involving moral turpitude. We review questions of statutory interpretation,
    such as whether an offense involves a crime of moral turpitude, “de novo, but defer
    to the interpretation of the BIA if it is reasonable.” Cano v. U.S. Att’y Gen., 
    709 F.3d 1052
    , 1053 (11th Cir. 2013).
    The term “crime involving moral turpitude” is not defined by statute. But
    this court in Cano stated that it involves “[a]n act of baseness, vileness, or
    depravity in the private and social duties which a man owes to his fellow men, or
    to society in general, contrary to the accepted and customary rule of right and duty
    between man and man.” 
    Id.
     (alteration in original) (quoting United States v.
    Gloria, 
    494 F.2d 477
    , 481 (5th Cir. 1974)). “Whether a crime involves the
    depravity or fraud necessary to be one of moral turpitude depends upon the
    inherent nature of the offense, as defined in the relevant statute, rather than the
    circumstances surrounding a defendant’s particular conduct.” Itani v. Ashcroft,
    
    298 F.3d 1213
    , 1215–16 (11th Cir. 2002). To decide whether an offense
    constitutes a crime involving moral turpitude, we apply a categorical approach and
    look to the statutory definition of the crime rather than to the underlying facts of
    the conviction. Cano, 709 F.3d at 1053. Any conviction under a statute
    categorically involves moral turpitude when “the least culpable conduct necessary
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    to sustain a conviction under the statute meets the standard of a crime involving
    moral turpitude.” Gelin v. U.S. Att’y Gen., 
    837 F.3d 1236
    , 1241 (11th Cir. 2016)
    (citation omitted).
    Nasrallah was convicted of receiving stolen property, in violation of
    
    18 U.S.C. § 2315
    . A defendant violates this provision when he “receives,
    possesses, conceals, stores, . . . sells, or disposes of any goods, wares, or
    merchandise, securities, or money of the value of $5,000 or more . . . which have
    crossed a State or United States boundary . . . , knowing the same to have been
    stolen, unlawfully converted, or taken.” 
    Id.
     The Board and our sister circuits have
    consistently held that a crime involving the receipt of stolen property involves
    moral turpitude if it “specifically requires knowledge of the stolen nature of the
    goods.” See Matter of Salvail, 
    17 I. & N. Dec. 19
    , 20 (B.I.A. 1979); accord De
    Leon v. Lynch, 
    808 F.3d 1224
    , 1232 (10th Cir. 2015); Hashish v. Gonzales, 
    442 F.3d 572
    , 576 n.4 (7th Cir. 2006); De Leon-Reynoso v. Ashcroft, 
    293 F.3d 633
    , 637
    (3d Cir. 2002); Michel v. I.N.S., 
    206 F.3d 253
    , 263 (2d Cir. 2000); United States v.
    Castro, 
    26 F.3d 557
    , 558 n.1 (5th Cir. 1994).
    Nasrallah argues, however, that receiving stolen property in interstate
    commerce in violation of 
    18 U.S.C. § 2315
     is not categorically a crime of moral
    turpitude because that section lacks a separate element of unlawful or fraudulent
    intent. But there is no requirement that a crime of moral turpitude have a separate
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    intent element. Punishment under 
    18 U.S.C. § 2315
     requires that the defendant
    have knowledge that the items were stolen, unlawfully converted, or taken. That is
    enough to qualify as a crime involving moral turpitude and thus bar Nasrallah from
    withholding of removal. See Matter of Salvail, 17 I. & N. Dec. at 20.
    D.     Particularly serious crime
    Binding precedent holds that “[t]his Court lacks jurisdiction to review a final
    order of removal if the alien is removable under 
    8 U.S.C. § 1227
    (a)(2)(A)(i) for
    being convicted of a crime involving moral turpitude within five years of
    admission for which a sentence of one year or longer may be imposed.” Keungne
    v. U.S. Att’y Gen., 
    561 F.3d 1281
    , 1283 (11th Cir. 2009) (citing 
    8 U.S.C. § 1252
    (a)(2)(C); Vuksanovic v. U.S. Att’y Gen., 
    439 F.3d 1308
    , 1310 (11th Cir.
    2006)). A petitioner so convicted is subject to what this court has referred to as the
    “criminal-alien jurisdictional bar.” See Jeune v. U.S. Att’y Gen., 
    810 F.3d 792
    , 806
    n.12 (11th Cir. 2016).
    Nasrallah is subject to this jurisdictional bar because of his conviction. We
    therefore lack jurisdiction to review whether Nasrallah’s conviction involved a
    particularly serious crime. See Keungne, 
    561 F.3d at 1283
    . Our review is limited
    to “constitutional claims or questions of law.” See 
    8 U.S.C. § 1252
    (a)(2)(D).
    Nasrallah contends that the IJ and the BIA misapplied factors used to
    determine whether he committed a particularly serious crime because he was
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    convicted of a crime “solely against property.” He argues that crimes against
    property are less likely to be considered a particularly serious crime. But see
    Matter of Frentescu, 
    18 I. & N. Dec. 244
    , 247 (B.I.A. 1982) (recognizing that
    “there may be instances where crimes (or a crime) against property will be
    considered” particularly serious crimes), superseded in part by amendment to
    
    8 U.S.C. § 1253
    (h)(2), as recognized in Matter of C-, 
    20 I. & N. Dec. 529
    , 533
    (B.I.A. 1992).
    Nasrallah’s challenge, which asks us to reweigh the factors involved in that
    discretionary determination, does not involve a constitutional claim or a question
    of law. See Fynn v. U.S. Att’y Gen., 
    752 F.3d 1250
    , 1252 (11th Cir. 2014)
    (“Argument that the IJ or BIA abused its discretion by improperly weighing
    evidence is . . . insufficient to state a legal or constitutional claim.”). This court
    therefore lacks jurisdiction to review the BIA’s particularly-serious-crime
    determination regarding Nasrallah.
    E.     Deferral of removal
    Nasrallah’s final argument is that the BIA should have granted him a
    deferral of removal under the CAT. To qualify for such a deferral of removal, an
    applicant must demonstrate that he or she will more likely than not be tortured in
    the country of removal. Torture is defined as:
    (1) [A]n act causing severe physical or mental pain or suffering;
    (2) [that is] intentionally inflicted; (3) for a proscribed purpose; (4) by
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    or at the instigation of or with the consent or acquiescence of a public
    official who has custody or physical control of the victim; and (5) not
    arising from lawful sanctions.
    Matter of V-X-, 
    26 I. & N. Dec. 147
    , 153 (B.I.A. 2013) (citing 
    8 C.F.R. § 1208.18
    (a)). Under the relevant CAT regulations, the perpetrator must have
    specifically intended to inflict severe physical or mental pain or suffering.
    
    8 C.F.R. § 1208.18
    (a)(5).
    The BIA determined that Nasrallah’s isolated chance encounter with the
    members of Hezbollah on a mountain in Lebanon did not constitute torture under
    the CAT. Although the incident was undoubtedly traumatizing for Nasrallah and
    his friend, the BIA reached this conclusion because there is no evidence that the
    Hezbollah members “specifically intended to inflict such severe pain or suffering.”
    See Jean-Pierre v. Att’y Gen., 
    500 F.3d 1315
    , 1323 (11th Cir. 2007) (citing
    
    8 C.F.R. § 1208.18
    (a)(5)); see also Cole v. Holder, 
    659 F.3d 762
    , 773 (9th Cir.
    2011) (“Acts that merely have the foreseeable result of inflicting harm are not
    sufficient; the actor [must] intend the actual consequences of his conduct.”
    (alteration in original) (internal quotation marks and citation omitted)). Because
    Nasrallah presented no other instances of alleged past torture, the BIA found as a
    matter of law that he had not been tortured in Lebanon. We agree with the BIA’s
    determination.
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    Nasrallah also contends that the BIA erred in determining that he would not
    likely be singled out for torture if he was removed. A determination about the
    likelihood of future harm, however, is a finding of fact, not a question of law. See
    Cole v. U.S. Att’y Gen., 
    712 F.3d 517
    , 533 (11th Cir. 2013) (holding that “we
    cannot review the BIA’s decision that [petitioner] would not be tortured” because
    “[t]he likelihood of harm is a factual question” and the criminal-alien jurisdictional
    bar applies). This restricts our review of the BIA’s CAT determination to
    Nasrallah’s legal and constitutional claims. See id.; Keungne, 
    561 F.3d at 1283
    .
    We therefore lack jurisdiction to review Nasrallah’s argument about the likelihood
    of future harm in Lebanon.
    III.   CONCLUSION
    For all the reasons set forth above, we DENY IN PART AND DISMISS IN
    PART Nasrallah’s petition for review.
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