Kporlor v. Holder

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

RICHARD RONALD KPORLOR, 

Petitioner,

v.

 No. 08-2363

ERIC H. HOLDER, JR., Attorney

General,

Respondent.



On Petition for Review of an Order of

the Board of Immigration Appeals.

Argued: January 26, 2010

Decided: March 5, 2010

Before WILKINSON, NIEMEYER, and MICHAEL,

Circuit Judges.

Petition dismissed by published opinion. Judge Wilkinson

wrote the opinion, in which Judge Niemeyer and Judge

Michael joined.

COUNSEL

ARGUED: Shimica D. Gaskins, COVINGTON & BURL-

ING, LLP, Washington, D.C., for Petitioner. Kiley L. Kane,

UNITED STATES DEPARTMENT OF JUSTICE, Washing-

ton, D.C., for Respondent. ON BRIEF: Caroline Brown,

2 KPORLOR v. HOLDER

COVINGTON & BURLING, LLP, Washington, D.C., for

Petitioner. Tony West, Assistant Attorney General, Civil

Division, John S. Hogan, Senior Litigation Counsel, Office of

Immigration Litigation, UNITED STATES DEPARTMENT

OF JUSTICE, Washington, D.C., for Respondent.

OPINION

WILKINSON, Circuit Judge:

Richard Kporlor is a Liberian citizen in his late twenties

who has lived in the United States as a lawful permanent resi-

dent since September 2001. After returning from a trip to

Liberia, Kporlor was detained when officials found that he

had a criminal record, and removal proceedings were initiated

against him. Kporlor filed claims for asylum, withholding of

removal, and protection under the United Nations Convention

Against Torture (CAT), but the Immigration Judge (IJ)

reviewing the case found that none had merit. Kporlor

appealed only the withholding of removal order, and the

Board of Immigration Appeals (BIA) affirmed. Kporlor has

now petitioned this court for review of that claim and his

CAT claim.

We must dismiss Kporlor’s petition because 8 U.S.C.

§ 1252(a)(2)(C) strips us of jurisdiction to review BIA denials

of withholding of removal in cases involving certain criminal

aliens. Additionally, we lack jurisdiction to review Kporlor’s

CAT claim because Kporlor did not appeal the IJ’s denial of

that claim to the BIA and thus did not exhaust his administra-

tive remedies. See 8 U.S.C. § 1252(d)(1).

I.

The parties do not dispute that Kporlor committed crimes

which subject him to removal. Indeed, Kporlor admits that he

KPORLOR v. HOLDER 3

"has been convicted of a crime of moral turpitude," Br. of

Petitioner at 20, triggering removal under 8 U.S.C. §

1182(a)(2)(A)(i)(I). He was convicted in August 2003 of

Grand Larceny, Va. Code Ann. § 18.2-95, and of Procuring a

Vehicle with Intent to Defraud, Va. Code Ann. § 18.2-206.1

Kporlor explained to the IJ that the underlying behavior for

these offenses consisted of taking several taxi cab rides for

which he could not pay. Additionally, Kporlor testified that he

was convicted of identity fraud and of two violations of a pro-

tective order against him sought by his ex-fiance, although

those crimes did not form the basis for his removability.

Although the convictions in this case occurred in 2003,

Kporlor was not detained until April 10, 2007, when he

applied for reentry into the country after a trip to Liberia. He

was charged with removability under 8 U.S.C.

§ 1182(a)(2)(A)(i)(I) as a criminal alien convicted of a crime

involving moral turpitude.2

In response, Kporlor applied for asylum, withholding of

removal, and protection under CAT. He claimed he feared to

return to Liberia because he had been tortured and forced by

the Liberian government to serve as a child soldier in the

early 1990’s during Liberia’s Civil War and believed he

would face future persecution there as a result.

1

The record is unclear as to whether Kporlor was convicted of Grand

Larceny, Va. Code Ann. § 18.2-95, or Petit Larceny, Va. Code Ann.

§ 18.2-96. Both the IJ’s Memorandum of Decision and the government’s

briefing indicate Grand Larceny, while petitioner’s brief and a printout

from the Virginia Courts Case Information system indicate Petit Larceny.

The parties do not discuss this apparent inconsistency, however, and it is

not dispositive in the present case.

2

Lawful permanent residents such as Kporlor generally are "not . . .

regarded as seeking an admission into the United States for purposes of

the immigration laws," 8 U.S.C. § 1101(a)(13)(C), but Kporlor’s conduct

falls within an exception for violations of Section 1182(a)(2), and as such

he could be charged as removable. See 8 U.S.C. § 1101(a)(13)(C)(v).

4 KPORLOR v. HOLDER

The IJ held multiple hearings and eventually denied Kpor-

lor’s withholding and CAT applications,3 finding that Kpor-

lor’s testimony was not credible and that documentary

evidence from both sides indicated that child soldiers were

not used by Liberian government forces at the time Kporlor

claimed he was conscripted by them. Although Kporlor testi-

fied to truly horrible experiences as a child, including asser-

tions that he was beaten, had boiling water and melted wax

poured on his body, had the bottoms of his feet cut open, and

was shot in both legs, the IJ found that multiple inconsisten-

cies undermined his assertions.

Perhaps more importantly, Kporlor admitted that he had

recently made two separate trips to Liberia, and the IJ found

that he had "stayed for lengthy periods of time, without suf-

fering any harm." Further, the IJ noted that the fact of Kpor-

lor’s "repeated travel to Liberia undermines both his

credibility and his claim that he would fear for his safety if

returned there." While Kporlor claimed that he had to sneak

in and out of the country on both trips, his travel documents

were stamped with regular entry and exit stamps from the

main airport in Monrovia, Liberia’s capital city. Kporlor

claimed that the stamps were forged but provided no evidence

in support.

Kporlor also failed to provide any support for his claim that

he was forced into making the two Liberia trips after facing

possible desertion charges from the United States Marine

Corps. Indeed, not only did Kporlor fail to produce any docu-

mentation of the purported desertion charges, but he also

failed even to provide evidence (beyond his own assertion) to

show that he was ever in the Marine Corps at all.

3

The IJ did not rule on Kporlor’s asylum application because it was not

made within one year of his arrival in the United States, as required by 8

U.S.C. § 1158(a)(2)(B). Kporlor did not appeal this decision, and it is not

before us.

KPORLOR v. HOLDER 5

After the IJ denied Kporlor’s applications for withholding

of removal and CAT protection, Kporlor, acting through pro

bono counsel, appealed only the withholding of removal deci-

sion to the BIA. He contested the IJ’s determination that he

was not credible. The BIA affirmed the decision, noting that

"the Immigration Judge’s credibility determination is not

‘clearly erroneous’ in this case."

Following the BIA’s affirmation, Kporlor filed a pro se

brief, now appealing both his withholding and CAT claims.

This court appointed new counsel and asked for discussion of

whether the BIA erred in not addressing the CAT claim in its

disposition. Importantly for the current appeal, new counsel

acknowledged that Kporlor "did not appeal his CAT claim to

the BIA," and thus that "[t]he BIA did not review the IJ’s

denial" of that claim. Br. of Petitioner at 18. Because ques-

tions exist about our jurisdiction over both of Kporlor’s

claims, we must resolve them before we can even consider the

merits of his contentions. As we find that we have no jurisdic-

tion, we dismiss Kporlor’s petition.

II.

Federal appellate courts determine de novo whether they

have subject matter jurisdiction to decide a case. Saintha v.

Mukasey, 516 F.3d 243, 248 (4th Cir. 2008); Tillman v. Reso-

lution Trust Co., 37 F.3d 1032, 1034 (4th Cir. 1994). Jurisdic-

tional strictures are always important, but nowhere more so

than where Congress has set those strictures in an area impli-

cating foreign affairs. See Jama v. Immigration and Customs

Enforcement, 543 U.S. 335, 348 (2005) ("Removal decisions

. . . ‘may implicate our relations with foreign powers’ and

require consideration of ‘changing political and economic cir-

cumstances.’") (quoting Mathews v. Diaz, 426 U.S. 67, 81

(1976)). Kporlor attempts in his pro se brief to challenge the

IJ and the BIA’s denial of his application for withholding of

removal under 8 U.S.C. § 1231(b)(3). He argues that the IJ

improperly weighed the evidence he presented in support of

6 KPORLOR v. HOLDER

his assertions that he had been tortured and faced a future risk

of injury. However, the fact that Kporlor also admits that he

committed a crime involving moral turpitude divests us of

jurisdiction to review the claim.

This admission is an understandable one. The Supreme

Court long ago explained in the immigration context that

"[w]hatever else the phrase ‘crime involving moral turpitude’

may mean in peripheral cases, the decided cases make it plain

that crimes in which fraud was an ingredient have always

been regarded as involving moral turpitude." Jordan v. De

George, 341 U.S. 223, 232 (1951). At a minimum, Kporlor’s

conviction for violating Va. Code Ann. § 18.2-206 by procur-

ing a vehicle with intent to defraud qualifies as a morally tur-

pitudinous act.

The relevant statute, 8 U.S.C. § 1252(a)(2)(C), states as fol-

lows:

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 rea-

son of having committed a criminal offense covered

in section 1182(a)(2) [or several other sections of

Title 8].

In turn, Sections 1182(a)(2)(A)(i) and (i)(I) direct that, sub-

ject to certain exceptions not relevant here, "any alien con-

victed of, or who admits having committed . . . a crime

involving moral turpitude . . . is inadmissible." We have noted

that Section 1252(a)(2)(C) bars review completely except

when it is necessary to determine whether a petitioner actually

has triggered the statute’s jurisdiction stripping provision.

See, e.g., Jahed v. Acri, 468 F.3d 230, 233, 237 (4th Cir.

2006) (no jurisdiction under 1252(a)(2)(C) except to evaluate

whether petitioner was an alien who committed a prohibited

criminal offense); Afeta v. Gonzales, 467 F.3d 402, 403-04,

408 (4th Cir. 2006) (same); Alim v. Gonzales, 446 F.3d 1239,

KPORLOR v. HOLDER 7

1246-51 (11th Cir. 2006) (same); Bosede v. Mukasey, 512

F.3d 946, 950-51 (7th Cir. 2008) (same, but reviewing purely

constitutional claim under Section 1252(a)(2)(D)); Berhe v.

Gonzales, 464 F.3d 74, 86-87 (1st Cir. 2006) (same). But see

Morales v. Gonzales, 478 F.3d 972, 980-81 (9th Cir. 2007);

Unuakhaulu v. Gonzales, 416 F.3d 931, 934-37 (9th Cir.

2005). In the present case, there is no argument that Kporlor

is an alien, and he admits that he has committed a crime

involving moral turpitude, thus subjecting him to removal. Br.

of Petitioner at 20.

Section 1252(a)(2)(C)’s phrase "any final order of

removal" is a broad one that precludes our consideration of

the subsidiary issue of withholding of removal, a claim that

is typically asserted to defend against a removal charge.

While the resolution of a withholding claim need not itself

rest on whether an alien committed a criminal act, it can only

be triggered by a charge of removability. See 8 U.S.C.

§ 1231(b)(3)(A) (removal not allowed if alien’s life or free-

dom threatened due to race, religion, nationality, membership

in a social group, or political opinion). Indeed, the IJ’s "order

of removal" in this case makes clear that Kporlor was remov-

able precisely because he had committed a crime of moral tur-

pitude and that the denial of his application for withholding

of removal followed from that charge. The withholding peti-

tion is neither separate from nor independent of the removal

order, and courts have routinely applied the jurisdictional bar

of Section 1252(a)(2)(C) to withholding claims. See, e.g.,

Jahed, 468 F.3d at 233, 237; Afeta, 467 F.3d at 403-04, 408;

Alim, 446 F.3d 1239, 1246-51. It cannot thus be said that

Kporlor’s withholding claim is exempt from Section

1252(a)(2)(C)’s flat prohibition against review of "any final

order of removal against an alien" who has committed a crime

of moral turpitude.

There is a statutory exception to Section 1252(a)(2)(C),

added as part of the 2005 REAL ID Act and codified in 8

U.S.C. § 1252(a)(2)(D), but it covers only claims that raise

8 KPORLOR v. HOLDER

constitutional or legal issues, neither of which are present in

this case. See, e.g., Mbea v. Gonzales, 482 F.3d 276, 278 n.1

(4th Cir. 2007) (court had jurisdiction to review moral turpi-

tude removal proceeding only because petitioner raised ques-

tions of law); Fernandez v. Keisler, 502 F.3d 337, 346 (4th

Cir. 2007) (same; citing cases); Saintha, 516 F.3d at 248

(same in evaluating CAT claim by criminal alien). Here,

Kporlor has only challenged the IJ’s determination that his

testimony was not credible, and Section 1252(a)(2)(D) does

not permit review of discretionary judgments that rest on fac-

tual circumstances.

Additionally, we have explained that "BIA factual determi-

nations include those which we would review, if we were to

have jurisdiction, under the ‘substantial evidence’ standard."

Saintha, 516 F.3d at 249. In this case, Kporlor’s filings can

only be interpreted as objecting to the weight the BIA chose

to place on the evidence presented, and thus they are factual

claims that do not fall within the Section 1252(a)(2)(D)

exception for legal and constitutional issues. Kporlor remains

an alien who "is removable by reason of having committed a

criminal offense" involving moral turpitude, 8 U.S.C.

§ 1252(a)(2)(C), and as such we are precluded from reviewing

his withholding claim.

III.

We likewise lack jurisdiction to resolve Kporlor’s claim

that the IJ’s rejection of his CAT claim was not supported by

substantial evidence. Kporlor acknowledges that he did not

appeal the IJ’s CAT determination to the BIA. See Br. of Peti-

tioner at 18. As a result, Kporlor has failed to exhaust his

administrative remedies, depriving us of jurisdiction to review

this claim.

An appellate court can "review a final order of removal

only if the alien has exhausted all administrative remedies

available to the alien as of right." 8 U.S.C. § 1252(d) and

KPORLOR v. HOLDER 9

(d)(1). It is well established that an "alien must raise each

argument to the BIA before we have jurisdiction to consider

it." Gandziami-Mickhou v. Gonzales, 445 F.3d 351, 359 n.2

(4th Cir. 2006); see also Asika v. Ashcroft, 362 F.3d 264, 267

n.3 (4th Cir. 2004) (per curiam) (same); Kurfees v. INS, 275

F.3d 332, 336 (4th Cir. 2001) (same). "The exhaustion doc-

trine embodies a policy of respect for administrative agencies,

which allows them to carry out their responsibilities and to

discover and correct their own errors." Kurfees, 275 F.3d at

336 (internal citations omitted). While Kurfees addressed an

iteration of the immigration laws enacted prior to the 2005

REAL ID Act, it remains true that "[a] rule that allowed par-

ties to circumvent the administrative process . . . would under-

mine agency functions and clog the courts with unnecessary

petitions. The rules are clear: before proceeding to federal

court, an alien must exhaust his or her administrative reme-

dies." Id.

Kporlor attempts to overcome his failure to exhaust by

arguing that the same issue—the IJ’s adverse credibility

finding—underlies both his CAT and withholding of removal

claims. See Br. of Petitioner at 18-19. He thus asserts that

because he "appealed the adverse credibility issue to the BIA,

[he] has exhausted his administrative remedies as to [CAT]."

Br. of Petitioner at 15. This argument fails for several reasons.

First, the IJ’s denial of Kporlor’s CAT claim rested on

more than an adverse credibility finding. IJs reviewing CAT

claims are required to consider "all evidence relevant to the

possibility of future torture," 8 C.F.R. § 208.16(c)(3). See also

Camara v. Ashcroft, 378 F.3d 361, 372 (4th Cir. 2004). "All

evidence" includes "[e]vidence of past torture," "[e]vidence

that the applicant could relocate" within the country of

removal, evidence of mass human rights violations, and any

"[o]ther relevant information regarding conditions in the

country of removal." 8 C.F.R. § 208.16(c)(3)(i)-(iv). See also

United Nations Convention Against Torture art. 3, Dec. 10,

1984, 1465 U.N.T.S. 85, 23 I.L.M. 1027 (same). In discussing

10 KPORLOR v. HOLDER

these requirements, we have explained that "an adverse credi-

bility determination cannot alone preclude protection under

the CAT," assuming, of course, that other evidence is pre-

sented. Camara, 378 F.3d at 372 (citing similar holdings from

the Second, Third, Seventh, and Ninth Circuits).

The IJ in Kporlor’s case properly considered all the evi-

dence before her. She explicitly acknowledged that "the Court

may not deny an alien’s Convention Against Torture claim

solely on the basis of an adverse credibility determination"

and noted that she had considered the additional evidence that

both parties provided. She concluded that "[t]he respondent

also failed to present any credible evidence regarding the like-

lihood of future torture in Liberia," and thus that Kporlor did

not meet his CAT burden of proving it was "more likely than

not" that he would be tortured if removed. See 8 C.F.R.

§ 1208.16(c)(2). In light of the IJ’s language, we cannot adopt

Kporlor’s contention that his CAT claim was denied solely on

adverse credibility grounds or that simply appealing the IJ’s

credibility determination somehow satisfied the requirement

of CAT exhaustion.

Indeed, the BIA was still entitled to notice and a first look

at the CAT issue. It is incorrect to say that BIA review of one

claim – withholding of removal—somehow serves as a proxy

for Kporlor’s failure to appeal another IJ holding. Congress

chose to enact or ratify two separate provisions, withholding

of removal, 8 U.S.C. § 1231(b)(3), and the CAT Treaty,

United Nations Convention Against Torture art. 3, Dec. 10,

1984, 1465 U.N.T.S. 85, 23 I.L.M. 1027. It cannot be said

that appealing a denial under the former is the same as

exhausting administrative remedies under the latter.

In fact, the conditions under which withholding of removal

and CAT relief can be granted are different. For instance, the

eligibility standards vary. Withholding applies to any alien

who can "establish that his or her life or freedom would be

threatened in the proposed country of removal on account of

KPORLOR v. HOLDER 11

race, religion, nationality, membership in a particular social

group, or political opinion." 8 C.F.R. § 208.16(b). See also

Gomis v. Holder, 571 F.3d 353, 359 (4th Cir. 2009). In con-

trast, CAT protection is not limited to individuals who belong

to a particular group; it applies to any alien who can show that

he is more likely than not to be tortured if removed. 8 C.F.R.

§ 208.16(c)(2).

Similarly, the injuries against which withholding and CAT

protect are distinct. Withholding can be granted if there is a

risk that "the alien’s life or freedom would be threatened" if

removed, 8 C.F.R. § 208.16(a), while CAT relief is narrower,

focusing solely on whether or not an alien is at risk of being

tortured. 8 C.F.R. § 208.16(c)(2). In addition, CAT protection

only applies if the alien faces a risk of being tortured "by or

at the instigation of or with the consent or acquiescence of a

public official or other person acting in an official capacity."

8 C.F.R. § 208.18(a)(1); see 8 C.F.R. § 208.16(c)(1) ("The

definition of torture contained in § 208.18(a) . . . shall govern

all decisions . . . about the applicability of Article 3 of the

Convention Against Torture.").

Finally, an IJ evaluates evidence differently depending on

whether it is presented in the withholding or CAT context. In

a withholding claim, the IJ is permitted to "presume[ ] that the

applicant’s life or freedom would be threatened in the future"

if the applicant can show past persecution, 8 C.F.R.

§ 208.16(b)(1)(i). In contrast, a CAT inquiry is prospective.

While past torture is one factor to be considered, see 8 C.F.R.

§ 208.16(c)(3)(i), the IJ’s overall investigation is forward-

looking and asks whether "it is more likely than not that [an

alien] would be tortured if removed." 8 U.S.C. § 208.16(c)(2).

This brief sampling of differences between withholding and

CAT claims should suffice to demonstrate why petitioner’s

theory of exhaustion-by-proxy cannot be sustained. To be

sure, there is an overlap between the two claims, but that does

not mean they are identical or that the BIA regards them inter-

12 KPORLOR v. HOLDER

changeably. While Kporlor doubtless could have brought both

claims before the BIA while indicating that similar arguments

applied to each and explaining differences as necessary, he

did not do so. It is not difficult for an alien to apprise the BIA

of a second claim on appeal. As we have explained, "uphold-

ing the exhaustion requirement may seem strict in an individ-

ual case, [but] exhaustion serves the twin purposes of

protecting administrative agency authority and promoting

judicial efficiency." Kurfees, 275 F.3d at 336. The BIA is

entitled to an opportunity to correct any errors that may occur

in immigration proceedings, and we lack jurisdiction unless it

is given the chance to do so.

Because Kporlor’s failure to exhaust his administrative

remedies divests us of jurisdiction over his CAT claim, we

need not reach his additional arguments with regard to it. For

the foregoing reasons, his petition must be dismissed.

PETITION DISMISSED