Dijana Kilic v. William P. Barr

RECOMMENDED FOR PUBLICATION

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

File Name: 20a0210p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

DIJANA KILIC, ┐

Petitioner, │

│

> No. 19-4076

v. │

│

│

WILLIAM P. BARR, Attorney General, │

Respondent. │

┘

On Petition for Review from the Board of Immigration Appeals;

No. A 077 465 716.

Decided and Filed: July 10, 2020

Before: DONALD, THAPAR, and NALBANDIAN, Circuit Judges.

_________________

COUNSEL

ON BRIEF: Sufen Hilf, HILF & HILF, PLC, Troy, Michigan, for Petitioner. Leslie McKay,

UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

_________________

OPINION

_________________

THAPAR, Circuit Judge. Dijana Kilic is a national of Bosnia and Herzegovina and was a

lawful permanent resident of the United States. A Michigan court sentenced Kilic to five to

twenty years of imprisonment for conspiracy to commit armed robbery. Under the Immigration

and Nationality Act, that made her deportable. See 8 U.S.C. §§ 1101(a)(43)(G), (U),

1227(a)(2)(A)(iii). Kilic sought removal relief but an immigration judge denied it. The Board of

Immigration Appeals affirmed.

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Kilic now seeks review of the Board’s decision. We review the Board’s opinion as a

final agency decision, and also review the immigration judge’s opinion (since the Board adopted

its findings and reasoning in full). See Gonzalez-De Leon v. Barr, 932 F.3d 489, 492 (6th Cir.

2019).

Kilic argues that she should have been granted two forms of relief: (1) a waiver of

inadmissibility under § 212(h) of the Immigration and Nationality Act (codified at 8 U.S.C.

§ 1182(h)); and (2) deferral of removal under the Convention Against Torture. Both arguments

fail.

Waiver of Inadmissibility. Immigration law draws a distinction between grounds of

inadmissibility and grounds of deportability. Compare 8 U.S.C. § 1182 (inadmissibility), with

id. § 1227 (deportability). In broad terms, if someone is inadmissible, it means they cannot

receive a visa or enter the country legally. See id. §§ 1101(a)(13)(A), 1182(a). By contrast, if

someone is deportable, it means they can be removed after being lawfully admitted into the

country. Id. § 1227(a). The two sets of grounds overlap in some areas while diverging in others.

Compare, e.g., id. § 1182(a)(2) (listing criminal grounds of inadmissibility), with id. § 1227(a)(2)

(listing criminal grounds of deportability).

Why does this difference matter? Well, in some cases, one set of grounds is more

flexible than the other. For example, § 212(h) of the Act permits the Attorney General to waive

certain criminal grounds of inadmissibility if (among other things) an alien shows inadmissibility

would result in “extreme hardship” to a citizen or green-card-holding family member. Id.

§ 1182(h)(1)(B). But there is no directly analogous waiver for deportability grounds.

Long story short, that means that to benefit from a § 212(h) waiver, a deportable alien

must first “assimilate[] to the position of an applicant for admission”—either by (1) voluntarily

leaving the country and then seeking readmission or (2) applying for adjustment of status.

Matter of Rivas, 26 I. & N. Dec. 130, 132 (B.I.A. 2013) (quoting Poveda v. U.S. Att’y Gen., 692

F.3d 1168, 1177 (11th Cir. 2012)); see also Jankowski-Burczyk v. INS, 291 F.3d 172, 175 & n.2

(2d Cir. 2002) (explaining the statutory mechanics in more detail).

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Here, Kilic sought a § 212(h) waiver but was denied. After all, she had not left the

country to apply for readmission and was ineligible for adjustment of status. She now argues

that the conditions for § 212(h) relief violate equal protection by irrationally favoring aliens who

have left the country over those who apply for the waiver while in the United States.

Courts review federal laws classifying aliens under the rational-basis test. See Ashki v.

INS, 233 F.3d 913, 920 (6th Cir. 2000). And the classification here easily passes that standard.

Several of our sister circuits have already explained why. See Seepersad v. Sessions, 892

F.3d 121, 125 (2d Cir. 2018) (per curiam); Poveda, 692 F.3d at 1177–78; Cabral v. Holder, 632

F.3d 886, 893–94 (5th Cir. 2011); Klementanovsky v. Gonzales, 501 F.3d 788, 791–94 (7th Cir.

2007); accord Montano v. Att’y Gen., 350 F. App’x 643, 647 (3d Cir. 2009) (per curiam).

In essence, Congress has created “an incentive” (the opportunity to seek a § 212(h)

waiver) for certain deportable criminals to “voluntarily depart at their own expense.”

Klementanovsky, 501 F.3d at 793. That saves the taxpayer the expense of a removal proceeding,

keeps potentially-dangerous criminals outside the country while they seek permission to re-enter,

and discourages attempts to elude immigration authorities. Id. at 792–93. In short, Congress had

“any number of rational reasons” to draw the distinction Kilic challenges. Id. at 794. Thus, her

inability to seek a § 212(h) waiver did not violate equal protection.

Convention Against Torture Deferral of Removal. Under the Convention Against

Torture, an alien may not be removed to a country where she would probably be tortured. See 8

C.F.R. §§ 208.16(c), 208.17(a). “Torture” refers to certain “extreme form[s] of cruel and

inhuman treatment” at the hands of or “with the consent or acquiescence of” government

officials. Id. § 208.18(a)(1)–(2); see also id. § 208.18(a)(3)–(8) (further specifying the definition

of “torture”).

Here, the immigration judge found that Kilic failed to show that she was likely to be

tortured in Bosnia, and the Board upheld that finding. Kilic now argues that the Board erred in

analyzing her claim and that she did show she would probably be tortured.

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First things first: we must determine the bounds of our subject-matter jurisdiction. Kilic

is removable for a conviction listed in 8 U.S.C. § 1252(a)(2)(C), one of the Immigration and

Nationality Act’s jurisdiction-stripping provisions. Until recently, that would have meant that

our review was strictly limited to Kilic’s legal challenges, excluding any review of a “factual

determination” (such as whether Kilic had shown a probability of future torture). Shabo v.

Sessions, 892 F.3d 237, 240–41 (6th Cir. 2018); see also Ventura-Reyes v. Lynch, 797 F.3d 348,

356–61 (6th Cir. 2015); 8 U.S.C. § 1252(a)(2)(D). But the Supreme Court recently held that

§ 1252(a)(2)(C) does not cover challenges to denials of Convention Against Torture relief.

Nasrallah v. Barr, 140 S. Ct. 1683, 1690–92 (2020). The government agrees that Nasrallah

directly abrogated our past holdings to the contrary. Thus, we have jurisdiction to consider

Kilic’s legal and factual challenges.

We review legal issues de novo (subject to administrative-law deference principles).

Khalili v. Holder, 557 F.3d 429, 435 (6th Cir. 2009). And we review the Board’s factual

findings under the “highly deferential” substantial-evidence test, meaning those findings stand

“unless any reasonable adjudicator would be compelled” to disagree. Nasrallah, 140 S. Ct. at

1692 (cleaned up). In the end, Kilic offers no winning argument on either front.

Start with law: specifically, whether the Board “failed to apply a required test or legal

standard.” Ventura-Reyes, 797 F.3d at 360. Kilic appears to suggest that the Board ignored

certain evidence or certain parts of her claim, but this suggestion is meritless. Both the Board

and the immigration judge (1) articulated the correct legal standards, (2) accurately described

Kilic’s claim, and (3) explained in fair detail why they did not think her evidence established a

likelihood of torture. On top of that, the immigration judge provided a thorough summary of

Kilic’s testimony and that of her family members. In short, nothing suggests that the agency cut

any illegal corners in considering Kilic’s claim. The very most Kilic can show is that the

opinions don’t exhaustively analyze every individual piece of evidence and each individual

subargument. And that’s perfectly fine: “the Board need not list every possible positive and

negative factor in its decision,” much less “write an exegesis on every contention.” Scorteanu v.

INS, 339 F.3d 407, 412 (6th Cir. 2003) (cleaned up). So too here.

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That just leaves the facts. The immigration judge made (and the Board affirmed) two

dispositive findings: (1) Kilic failed to show that she would probably suffer harm severe enough

to qualify as torture; and (2) she failed to show that government officials would inflict or ratify

that harm. Substantial evidence supports both findings.

To be sure, the record shows that Kilic’s family ties, criminal past, and other aspects of

her life in this country may lead to stigma in Bosnia. But nothing in the record proves that any

mistreatment is more likely than not to rise to the extreme level of torture. See 8 C.F.R.

§ 208.18(a)(1)–(2) (noting that torture “is an extreme form of cruel and inhuman treatment,”

involving the intentional infliction of “severe pain or suffering,” and excludes “lesser forms of

cruel, inhuman or degrading treatment” (emphases added)). It’s true that Bosnia has a history of

ethnic and religious strife. Yet that tragic history does not show that Kilic is personally likely to

suffer any extreme form of discrimination. See, e.g., Almuhtaseb v. Gonzales, 453 F.3d 743, 751

(6th Cir. 2006). And while Kilic and her family testified that they would fear for her in Bosnia,

their subjective fears (however understandable) “are both too generalized and too speculative to

form the basis of relief.” Cruz-Samayoa v. Holder, 607 F.3d 1145, 1156 (6th Cir. 2010).

The most specific fear Kilic articulates is her fear of sexual abuse. While sexual violence

can clearly constitute torture, Kilic fails to show that she is likely to suffer such violence. To

substantiate her fear, she points to a report showing that Bosnian sex workers are often the

victims of violence (sexual and otherwise). But Kilic does not claim that she will be a sex

worker in Bosnia and she offers no evidence to support her claim that she will be perceived as

one. Simply put, the record does not compel the conclusion that Kilic will likely suffer

mistreatment rising to the level of torture.

Still less does the record compel the conclusion that government officials would

participate or acquiesce in such mistreatment. Kilic points to evidence that police officers

sometimes abuse sex workers or fail to protect them. But again, this evidence is of dubious

relevance to Kilic because she does not claim to be a sex worker. That leaves only her family

members’ predictions that the police would turn a blind eye to crimes committed against her.

The Board reasonably found that this speculative testimony did not carry Kilic’s burden of proof.

We cannot say the record compels the opposite conclusion.

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We deny Kilic’s petition for review and deny her outstanding motion for a stay of

removal as moot.