Amir Shabo v. Jefferson B. Sessions, III

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 18a0111p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

AMIR FRANCIS SHABO, ┐

Petitioner, │

│

> No. 17-3881

v. │

│

│

JEFFERSON B. SESSIONS, III, Attorney General, │

Respondent. │

┘

On Petition for Review from the Board of Immigration Appeals;

No. A 026 808 024

Decided and Filed: June 11, 2018

Before: MOORE, THAPAR, and BUSH, Circuit Judges.

_________________

COUNSEL

ON BRIEF: Barry N. Schlussel, Huntington Woods, Michigan, for Petitioner. Andrea N.

Gevas, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.

David B. Thronson, MICHIGAN STATE UNIVERSITY, East Lansing, Michigan, for Amicus

Curiae.

_________________

OPINION

_________________

JOHN K. BUSH, Circuit Judge. Amir Francis Shabo seeks to reopen his 1998 Board of

Immigration Appeals (“BIA”) proceeding that ordered his removal to Iraq. He wants that

removal withheld and seeks relief under the Convention Against Torture. He alleges that, as a

Chaldean Christian, he faces likely torture in Iraq.

No. 17-3881 Shabo v. Sessions Page 2

Because of Shabo’s prior criminal conviction and the operation of

8 U.S.C. § 1252(a)(2)(C) and (D), we lack jurisdiction to review the factual questions in his

petition. Even if we were to agree with Shabo’s position on the reviewable question of law he

presents—whether the changed-country-condition exception applies—we would lack jurisdiction

to review the factual issue of whether Shabo established a prima facie case for relief. Therefore,

under 8 U.S.C. § 1252(a)(2)(C) and the Article III doctrine of mootness, we dismiss his petition

as unreviewable.

I

Shabo immigrated to the United States from Iraq in 1985. In 1992, at the age of twenty-

five, he was convicted of an aggravated felony: possession with the intent to deliver 50 to 225

grams of cocaine. He was sentenced to 60 to 240 months of imprisonment. After 60 months he

was paroled to immigration authorities, and an immigration judge ordered his removal to Iraq

based on his being convicted of an aggravated felony and of a crime relating to a controlled

substance. The BIA denied his appeal. But because the Iraqi government was not then issuing

travel papers, Shabo remained in the United States. He has been here ever since.

Iraq began issuing travel papers last year. Shabo anticipated that he would soon be

detained, so he moved to reopen his 1998 BIA proceedings to seek protection under the

Convention Against Torture. He anticipated correctly and has since been detained. Critically, he

concedes that he is deportable under what is now 8 U.S.C. § 1227(a)(2)(A)(iii) and (B)(i). He

argues for an exception to the ninety-day time limit on moving to reopen his case, which has

long since passed, contending that the circumstances in Iraq have changed considerably since

1997, when the immigration judge originally ordered his removal.

After examining Shabo’s motion, the BIA held that it was untimely and that the changed-

country-conditions exception does not apply to applications under the Convention Against

Torture. In the alternative the BIA held that, even if the exception did apply, Shabo had not

presented sufficient evidence that he was “more likely than not” to be subject to torture in Iraq

No. 17-3881 Shabo v. Sessions Page 3

with the government’s acquiescence. The BIA also declined to reopen his case sua sponte.

Shabo petitions us for review of the BIA’s opinion.1

II

Our limited jurisdiction over removal orders decides Shabo’s petition.

8 U.S.C. § 1252(a)(2)(C) states that “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 1182(a)(2) or 1227(a)(2)(A)(iii), (B), (C), or (D) . . . .”

8 U.S.C. § 1252(a)(2)(C). Subsection (D) of this same statute articulates an exception: “Nothing

in subparagraph [(C)] . . . shall be construed as precluding review of constitutional claims or

questions of law raised upon a petition for review filed with an appropriate court of appeals in

accordance with this section.” Id. § 1252(a)(2)(D). In other words, if an alien is removable by

reason of having committed a crime covered by § 1252(a)(2)(C), we may review his “claims

only insofar as they raise constitutional issues or questions of law.” Ventura-Reyes v. Lynch, 797

F.3d 348, 356 (6th Cir. 2015). Questions of law include, for example, “whether the BIA used the

correct standard in reviewing the IJ’s decision and whether it assigned him the correct burden of

proof.” Tran v. Gonzales, 447 F.3d 937, 943 (6th Cir. 2006). “The same is true for matters

involving the BIA’s construction of a particular statute.” Arestov v. Holder, 489 F. App’x 911,

916 (6th Cir. 2012) (citing Almuhtaseb v. Gonzales, 453 F.3d 743, 748 (6th Cir. 2006)). But

“whether the BIA correctly considered, interpreted, and weighed the evidence presented” is not a

constitutional issue or question of law. Arestov, 489 F. App’x at 916 (quoting Tran, 447 F.3d at

943). Such a question is instead factual. Factual errors can qualify as legal errors when

“important facts have been totally overlooked and others have been seriously mischaracterized.”

Ventura-Reyes, 797 F.3d at 360. If a criminal alien like Shabo does raise a question of law or a

constitutional issue, we review that claim de novo. Id. at 358.

The BIA made a final determination not to reopen Shabo’s case to allow him to present

an application under the Convention Against Torture. To have his case reopened, Shabo first

needed to show an exception to the time limit on filing motions to reopen—in this case, the

1Shabo does not challenge the BIA’s declining to reopen his case sua sponte.

No. 17-3881 Shabo v. Sessions Page 4

changed-country-conditions exception—and then, second, he needed to establish a prima facie

case for relief. The BIA held that Shabo’s motion was untimely and that the changed-country-

conditions exception does not apply to applications under the Convention Against Torture. The

BIA also held in the alternative that, even if the exception did apply, Shabo had not presented

sufficient evidence to establish a prima facie case that he was “more likely than not” to be

subject to torture in Iraq by the government or at least with the government’s acquiescence.

Shabo is removable by reason of his committing a crime covered by § 1252(a)(2)(C).

So we may review his “claims only insofar as they raise constitutional issues or questions of

law.” Id. at 356. The application of the changed-country-conditions exception is potentially a

question of law that we could review. But the BIA’s alternative holding that Shabo failed to

establish a prima facie case of his likely torture is a factual determination that we lack

jurisdiction to review. This renders the changed-country-conditions-exception issue moot.

So we are bound by statute to decline to review Shabo’s petition. A review of our precedent

supports our conclusion here.

In Pepaj v. Mukasey, a petitioner sought our review of a BIA order dismissing her appeal

of an immigration judge’s order denying her motion to reopen. Pepaj v. Mukasey, 509 F.3d 725,

726–28 (6th Cir. 2008). The petitioner asserted that she was “eligible for withholding under [the

Convention Against Torture]” because of a change in circumstances. Id. at 727. The BIA

dismissed her appeal, finding that she had not met the changed-country-conditions exception to

move to reopen her case more than ninety days after the final decision. Id. We held that,

under § 1252, we lacked jurisdiction to review the BIA’s determination because the petitioner

had “raised only a question of fact regarding her claim of changed country conditions.” Id. at

728 (citing Almuhtaseb, 453 F.3d at 747). Similarly, in Arestov, we cited Pepaj to hold again

that § 1252 withdrew our jurisdiction to review the BIA’s denying a petitioner’s motion to

reopen because the petitioner’s claims regarding changed country conditions involved a factual

determination. Arestov, 489 F. App’x at 919–20.2

2In an order from January of this year, we addressed an appeal by an Iraqi petitioner who, like Shabo, had

been convicted of a criminal offense covered by 8 U.S.C. § 1252(a)(2)(C) and whose motion to reopen had been

denied by the BIA. We held that we lacked jurisdiction to review whether the petitioner had established a prima

No. 17-3881 Shabo v. Sessions Page 5

As an initial matter, Pepaj and Arestov demonstrate that we treat denials of motions to

reopen as “final orders of removal” when evaluating our own jurisdiction. See also Giova v.

Rosenberg, 379 U.S. 18 (1964) (reversing the Ninth Circuit’s decision that it lacked jurisdiction

to review a denial of a motion to reopen and remanding with instructions to review the petition);

Jahjaga v. Attorney Gen. of U.S., 512 F.3d 80, 82 (3d Cir. 2008) (“The denial of a motion to

reopen is itself a final order of removal.”); Mayard v. INS, 129 F.3d 438, 439 (8th Cir. 1997)

(explaining that the denial of a motion to reopen qualifies as a “final order of exclusion or

deportation”). Unlike in Pepaj and Arestov, however, Shabo’s claim for relief does not turn on

the factual issue of whether conditions in his country of removal have changed. But his claim

does turn on the factual issue of whether he has shown a probability of future torture. Chege v.

Lynch, 636 F. App’x 682, 685 (6th Cir. 2016) (“Whether an applicant for withholding of removal

under the Convention has shown a probability of future torture is a factual determination.”);

Bushati v. Gonzales, 214 F. App’x 556, 559 (6th Cir. 2007) (“The issue of whether substantial

evidence supports the immigration judge’s finding that [Petitioner] did not establish that he

would likely be subject to torture . . . is clearly a factual determination.”). In other words, we are

being asked to determine whether the BIA “correctly considered, interpreted, and weighed the

evidence presented” by Shabo of his likelihood of torture. See Arestov, 489 F. App’x at 916

(quoting Tran, 447 F.3d at 943). So this is a factual question. And in light of our application of

§ 1252 to motions to reopen in Pepaj and Arestov, we are bound to conclude that we lack

jurisdiction to review whether Shabo established a prima facie case for relief under the

Convention Against Torture. See Pepaj, 509 F.3d at 728 (citing Almuhtaseb, 453 F.3d at 747–

48); Arestov, 489 F. App’x at 919–20.

Our inability to review the BIA’s determination regarding Shabo’s eligibility for relief

under the Convention Against Torture renders the changed-country-conditions-exception issue

moot; regardless of our conclusion as to the first question, the result in this matter is the same.

See generally Aetna Life Ins. Co. of Hartford, Conn. v. Haworth, 300 U.S. 227, 239–41 (1937)

(discussing cases and controversies); McPherson v. Mich. High Sch. Athletic Ass’n, Inc.,

facie case for relief under the Convention Against Torture because the petitioner’s arguments “concern the weight

the BIA gave to his evidence, not the standard applied by the BIA.” Al-Sarih v. Sessions, No. 17-3996, at 2 (6th Cir.

Jan. 31, 2018) (order).

No. 17-3881 Shabo v. Sessions Page 6

119 F.3d 453, 458 (6th Cir. 1997) (en banc) (discussing mootness); 13B Charles Alan Wright,

Arthur R. Miller & Edward H. Cooper, Federal Practice & Procedure § 3533 (3d ed. 2008) (“The

central question [of mootness] nonetheless is constant—whether decision of a once living dispute

continues to be justified by a sufficient prospect that the decision will have an impact on the

parties.”). That is, even if we were to hold that the BIA erred at step one when it concluded that

the changed-country-conditions exception does not apply to applications under the Convention

Against Torture, we would still lack jurisdiction to review the BIA’s case-dispositive

determination at step two that Shabo failed to establish a prima facie case for relief. We must

therefore decline to review the question whether the BIA’s changed-country-conditions

determination was erroneous.3

III

In light of the foregoing, we must deny Shabo’s petition for review. We lack jurisdiction

to review the factual question of whether Shabo established a prima facie case for relief under

the Convention Against Torture. Because his entire petition depends on that claim, we must

DISMISS his petition as unreviewable.

3One potential legal issue arguably remains. Shabo does cursorily allege that the BIA’s 1998 decision

affirming the immigration judge’s ordering his removal denied him due process. But Shabo never petitioned for

review of that decision. Instead, Shabo now petitions us for review of the BIA’s 2017 decision denying his motion

to reopen. So our review is limited to that decision. See Stone v. INS, 514 U.S. 386, 405 (1995) (explaining that the

time limit on an alien’s petitioning for review is “mandatory and jurisdictional”).