Mirza v. Garland

Case: 20-60132 Document: 00515859305 Page: 1 Date Filed: 05/12/2021

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

FILED

May 12, 2021

No. 20-60132 Lyle W. Cayce

Clerk

Hassan Raza Mirza,

Petitioner,

versus

Merrick B. Garland, U.S. Attorney General,

Respondent.

Petition for Review of an Order of the

Board of Immigration Appeals

No. A200 035 095

Before Jolly, Stewart, and Oldham, Circuit Judges.

Andrew S. Oldham, Circuit Judge:

Hassan Mirza threatened to commit a religiously motivated act of

terrorism. The Government detained him and ordered him removed. Mirza

petitioned for review. We deny the petition.1

1

Judge Stewart concurs in the judgment only.

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I.

Hassan Mirza was born to a Mohajir family in Karachi, Pakistan.

Mirza developed and maintained a close connection with the Mohajir Quami

Movement (“MQM”) and the Mohajir Student Federation (“MSF”). In

1990, Mirza applied for an F-1 student visa with plans to attend Oklahoma

State University. After a few months, Mirza dropped out of classes but

remained in the United States. In 1993, he applied for asylum based on the

Pakistani Government’s oppression of MQM members. The Immigration

and Naturalization Service granted asylum in 1997.

On May 10, 2018, Mirza’s brother contacted the Amarillo Police

Department (“APD”) through the crime-stoppers tip line. The brother

described Mirza as living on the streets of Houston and suffering from mental

illness. He further stated that Mirza called him from a private phone number,

and said:

I am now on Allah’s path and I am going to teach a lesson to

kuffars [non-believers]. Allah is with me and I am going to kill

at least 30 to 50 kuffars. In shah Allah I will be successful and

go to heaven. Tell Amee [mother] that her son’s on Allah’s

path and going to heaven.

Mirza angrily concluded, “[s]oon you will all see Amarillo on the news,” and

disconnected the phone.

APD officers located Mirza and turned him over to FBI agents. During

his FBI interview, Mirza admitted to making terroristic threats. APD officers

noted that Mirza presented signs of a possible mental illness. So they

transferred him to a mental-health treatment facility for observation and

evaluation. Mirza’s family confirmed the officers’ suspicion and informed

them of Mirza’s history of schizophrenia.

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United States Citizenship and Immigration Services (“USCIS”)

issued a Notice of Intent to Terminate Asylum Status based on Mirza’s

“recently developed terroristic threats presenting a danger to the United

States” in addition to his “previously admitted past involvement with

MQM, a group that engages in terrorist like activity” as defined by the

Immigration and Nationality Act (“INA”). And thereafter, the hospital

transferred Mirza to the custody of Homeland Security Investigations

(“HSI”) for the initiation of asylum-revocation proceedings.

In those proceedings, the immigration judge (“IJ”) found that Mirza

“pose[d] a danger to the national security of the United States.” Relying on

8 U.S.C. § 1158(b)(2)(A)(iv) and the Attorney General’s precedential

interpretation of that statute in Matter of A-H-, 23 I. & N. 774 (A.G. 2005),

the IJ terminated Mirza’s asylum status. That returned Mirza to the F-1

student-visa status he obtained in 1990; and because he was no longer

enrolled in an academic institution, he was subject to removal pursuant to

8 U.S.C. § 1227(a)(1)(C)(i).

Mirza conceded his removability. Then he applied to adjust his status

to Lawful Permanent Resident (“LPR”). He also applied for a waiver of

inadmissibility and deferred removal under the Convention Against Torture.

The IJ deemed MQM a Tier III terrorist organization and found that Mirza

had been an active member since 1987. That made Mirza inadmissible and

hence ineligible for an adjustment of status under the terrorism bar in 8

U.S.C. § 1182(a)(3)(B)(i)(VI). The IJ also found that Mirza failed to prove

that he would be tortured based on his Muslim faith or mental illness. The IJ

therefore denied Mirza’s applications. The BIA affirmed. Mirza timely

petitioned for review.

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II.

The first question presented is whether the Government lawfully

terminated Mirza’s asylum status. That decision turned on 8 U.S.C.

§ 1158(b)(2)(A)(iv). We first hold that the Attorney General interpreted that

statute correctly as a matter of law. Then we hold the BIA’s decision was

supported by substantial evidence as a matter of fact.

A.

“We start, of course, with the statutory text.” United States v. Graves,

908 F.3d 137, 141 (5th Cir. 2018) (quotation omitted). The INA statutorily

bars the Attorney General from granting asylum where there are “reasonable

grounds for regarding the alien as a danger to the security of the United

States.” 8 U.S.C. § 1158(b)(2)(A)(iv). The phrase “reasonable grounds for

regarding” is not defined in the INA.

Given the statute’s silence, the IJ and the BIA relied on Matter of A-

H-. In that decision, the Attorney General first determined that the plain

meaning of “reasonable grounds” comports with the well-established

standard for “probable cause.” See 23 I. & N. at 788–89. Then the Attorney

General determined that “a danger to the security of the United States”

means “[a]ny level of danger to national security . . . ; it need not be a

‘serious,’ ‘significant,’ or ‘grave’ danger.” Id. at 788. The Attorney General

based the latter interpretation on the fact that in other contexts, the

Government uses the word “serious” to qualify or modify national security

provisions—which only highlights its decision not to modify the word

“danger” in 8 U.S.C. § 1158(b)(2)(A)(iv). Ibid.

The parties spill much ink debating whether we must defer to Matter

of A-H- under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,

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467 U.S. 837 (1984). In our view, Chevron is irrelevant here.2 That’s for two

reasons.

First, the Attorney General’s interpretation of § 1158(b)(2)(A)(iv) is

not merely one reasonable reading of the statute—it’s the only reasonable

one. See Nat’l Cable & Telecomm. Ass’n v. Brand X Internet Servs., 545 U.S.

967, 982 (2005). Mirza points to nothing that undermines the Attorney

General’s interpretation of “reasonable grounds.” And we can think of

nothing. To the contrary, numerous federal courts including our own

routinely equate “reasonable grounds” and “probable cause” in the same

way the Attorney General does. See, e.g., Draper v. United States, 358 U.S.

307, 310 n.3 (1959) (equating “probable cause” with “reasonable grounds”);

Wong Sun v. United States, 371 U.S. 471, 477–78 & n.6 (1963) (same); Lozman

v. Riviera Beach, 138 S. Ct. 1945, 1957 (2019) (Thomas, J., dissenting)

(describing a common law principle that equates “reasonable grounds” and

“probable cause” as synonymous); United States v. Banuelos-Romero, 597

F.3d 763, 768 (5th Cir. 2010) (noting that “reasonable belief” coupled with

evidence of wrongdoing “create[s] sufficient probable cause” (quotation

omitted)); United States v. Gorman, 314 F.3d 1105, 1111 (9th Cir. 2002)

(explaining that the “‘reason to believe’ standard . . . embodies the same

standard of reasonableness inherent in probable cause”); Adams v. Baker, 909

F.2d 643, 649 (1st Cir. 1990) (holding that “‘reasonable belief’ may be

2

There is a good argument that Chevron should not apply to immigration

adjudications more generally. See, e.g., Denis v. Att’y Gen., 633 F.3d 201, 209 (3d Cir. 2011)

(declining to apply Chevron deference to the BIA’s interpretation of INA phrases that are

“capable of definition”); Higgins v. Holder, 677 F.3d 97, 107–09 (2d Cir. 2012) (Katzmann,

J., concurring) (arguing for a more circumspect application of Chevron to BIA

interpretations of the INA that do not implicate the “BIA’s administrative responsibility

and expertise” (quotation omitted)); see also Shoba Sivaprasad Wadhia & Christopher J.

Walker, The Case Against Chevron Deference in Immigration Adjudication, 70 Duke L.J.

1197 (2021). But our rule of orderliness prohibits that view. See, e.g., Avelar-Oliva v. Barr,

954 F.3d 757, 770 (5th Cir. 2020).

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formed if the evidence . . . is sufficient to justify a reasonable person in the

belief that the alien falls within the proscribed category”).

Mirza spends most of his effort disputing the Attorney General’s

interpretation of “a danger to the security of the United States.” 8 U.S.C.

§ 1158(b)(2)(A)(iv). The Attorney General interpreted this “danger” to

mean any “non-trivial degree of risk,” so long as there is sufficient

information to “permit a reasonable person to believe that the alien may pose

a danger to the national security.” Matter of A-H-, 23 I. & N. at 789 (emphasis

added). Mirza says this sentence errantly lowered the “actual risk” standard

required by the statute to a “speculative risk” standard implicated anytime

anyone could hypothesize a potential risk.

Mirza is wrong. All dangers and all risks are inherently matters of

probability. For example, a danger is an “[e]xposure or liability to injury, loss,

pain, or other evil.” Danger, Webster’s New International

Dictionary 667 (2d ed. 1934; 1950) (“Webster’s Second”). And a

risk is a “[h]azard; danger; peril; exposure to loss, injury, disadvantage, or

destruction.” Risk, Webster’s Second at 2154. Some risks (like

smoking) are higher than others (like walking outside)—but they’re still

risks. The question is whether Congress required some particular quantum

of risk before triggering the asylum bar. Mirza points to nothing in the

statutory text or structure to suggest Congress did so.

Mirza instead points to two decisions from our sister circuits—

Yusupov v. Attorney General, 518 F.3d 185 (3d Cir. 2008), and Malkandi v.

Holder, 576 F.3d 906 (9th Cir. 2009). In Yusupov, for example, the Third

Circuit concluded that an alien cannot lose asylee status merely because he

“may pose a danger to the national security.” 518 F.3d at 201. And our sister

court suggested that Matter of A-H- erred in suggesting otherwise. Ibid. The

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Ninth Circuit later agreed with the Third and likewise suggested some of the

language in Matter of A-H- was overbroad. Malkandi, 576 F.3d at 913–14.

We agree that a speculative risk is insufficient to trigger the statutory

bar on asylum. But Matter of A-H- did not hold otherwise. Read in context,

that decision said an alien can lose asylee status when a reasonable person has

probable cause to believe that an alien may pose a danger to national security.

A purely hypothetical or speculative danger is not enough—just as the purely

hypothetical or speculative risk of a crime does not provide a reasonable

person with probable cause to think a crime occurred. See Illinois v. Gates,

462 U.S. 213, 238–39 (1983); United States v. Sokolow, 490 U.S. 1, 7 (1989)

(“The officer . . . must be able to articulate something more than an inchoate

and unparticularized suspicion or hunch.” (quotation omitted)). Instead, the

Government must proffer evidence that the alien poses a non-theoretical risk

to national security. We agree with the Third and Ninth Circuits that a wholly

speculative risk is insufficient to trigger 8 U.S.C. § 1158(b)(2)(A)(iv)’s

statutory bar on asylum. We just disagree that our reading of the statute

contradicts Matter of A-H-.

The second reason Chevron is irrelevant is because the BIA

determined that Mirza constituted an actual risk to national security. So

Matter of A-H- is inapplicable and Mirza is ineligible for asylum even under

his own preferred reading of the statute. The USCIS Notice of Intent to

Terminate Asylum Status informed Mirza that his actions “present a danger

to the security of the United States.” The IJ presiding over Mirza’s asylum

revocation explained: “I believe with the evidence that we do have in this

record, [Mirza] does pose a danger to the national security of the United States,

and I will be terminating his asylum status.” And the BIA adopted the IJ’s

reasoning and further clarified that “respondent presented a danger” to

national security. Thus, Mirza is ineligible for asylum under any reading of

§ 1158(b)(2)(A)(iv), including his own.

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B.

Mirza next contends the BIA erred in finding he constituted an actual

threat to national security. Our review is for substantial evidence and we will

reverse “only if the evidence is so compelling that no reasonable fact finder

could fail to find the petitioner statutorily eligible for relief.” Qorane v. Barr,

919 F.3d 904, 909 (5th Cir. 2019) (quotation omitted). “We review the BIA’s

decision and will consider the underlying decision of the IJ only if, as here, it

influenced the BIA’s decision.” Munoz-Granados v. Barr, 958 F.3d 402, 406

(5th Cir. 2020) (quotation omitted).

1.

Mirza first argues that his brother’s anonymous phone call to APD

couldn’t provide “reasonable grounds” or “probable cause” to regard him

as a danger to national security. Probable cause exists when the facts available

would “warrant a person of reasonable caution in the belief” that the alien

poses a danger to national security. Florida v. Harris, 568 U.S. 237, 243 (2013)

(quotation omitted). That standard is easily met here. A review of all available

evidence supports the BIA’s determination that there was probable cause to

consider Mirza a threat to American’s national security. Mirza told his

brother “Allah is with me and I am going to kill at least 30 to 50 [non-

believers].” Later, during a custodial interrogation, Mirza admitted to

making the threat. Information about the threat, coupled with Mirza’s own

admission, provided reasonable grounds for regarding Mirza as an actual

threat to national security.

2.

Mirza next claims that his threat was prompted by mental illness and

that he lacked the sophistication necessary to pose a threat to national

security. But he cites no authority suggesting that a different legal standard

applies to the mentally ill. Nor does he show that his threat was objectively

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not a threat by reason of his illness. In fact, Mirza proffers no new evidence

whatsoever tending to show his incapacity to commit an act of terror. Instead,

he urges this court to reweigh the evidence and reconceptualize the threat as

innocuous in light of his schizophrenia. That we cannot do. See, e.g., Newton

v. Apfel, 209 F.3d 448, 452 (5th Cir. 2000) (holding substantial evidence

review does not permit a court to “reweigh the evidence in the record, try

the issues de novo, or substitute its judgment for the [fact finder’s]”).

3.

Mirza last claims that his threat was relatively minor in contrast to the

serious threats posed by other terrorists. This argument borders on frivolous.

The fact that other terrorists might have been more dangerous says nothing

about whether Mirza satisfied the danger required in § 1158(b)(2)(A)(iv). He

threatened to kill 30 to 50 non-believers. That is certainly a significant threat,

regardless of the threats posed by other terrorists.

III.

After the termination of his asylum, Mirza filed applications for relief,

including an application to adjust his status under 8 U.S.C. § 1159(b) and an

application for withholding of removal under 8 U.S.C. § 1159(c). But the IJ

found Mirza ineligible for both based on his membership in a terrorist

organization, namely MQM. Mirza argues he is not a member of MQM. We

first hold that we have jurisdiction to consider Mirza’s argument. Then we

hold it meritless.

A.

Jurisdiction first. The Attorney General argues that we lack

jurisdiction to consider Mirza’s challenge because Mirza did not raise the

claim before the BIA, and “[f]ailure to exhaust is a jurisdictional bar.” Ramos-

Torres v. Holder, 637 F.3d 544, 547 (5th Cir. 2011).

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We disagree. When reviewing final orders of removal, a question of

law may be reviewed “only if the alien has exhausted all administrative

remedies available to the alien as of right.” 8 U.S.C. § 1252(d)(1). And

petitioners “fail to exhaust their administrative remedies as to an issue if they

do not first raise the issue before the BIA, either on direct appeal or in a

motion to reopen.” Omari v. Holder, 562 F.3d 314, 318 (5th Cir. 2009). We

have held, however, that “if the BIA deems an issue sufficiently presented to

consider it on the merits, such action by the BIA exhausts the issue as far as

the agency is concerned and that is all that 8 U.S.C. § 1252(d)(1) requires to

confer our jurisdiction.” Lopez-Dubon v. Holder, 609 F.3d 642, 644 (5th Cir.

2010) (quotation omitted); cf. Brown v. Allen, 344 U.S. 443, 447 (1953). Here,

the Government clearly raised the issue in its appellate brief to the BIA. And

the BIA addressed the issue of Mirza’s terrorist-organization membership in

its published opinion. So the claim was exhausted, and we have jurisdiction.

B.

Now the merits. Where the Government finds that an alien is a

member of a Tier III terrorist organization, he is ineligible for asylum and

cannot benefit from an adjustment of status to LPR unless he proves by clear

and convincing evidence that he did not know (and had no reason to know)

the organization was a terrorist organization. See 8 U.S.C. § 1159(b)(5); id.

§ 1182(a)(3)(B)(i)(VI). Here, the IJ found that Mirza had been an active

member of MQM since 1987 based on three major pieces of evidence, all

proffered by Mirza himself. Again, our review is for substantial evidence. See

Qorane, 919 F.3d at 909.

First, Mirza’s 1993 asylum application. In his initial asylum

application, Mirza didn’t simply list MQM as an affiliation but rather listed

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membership in the organization as the reason for the application.3 Mirza

claimed active membership in MQM and MSF. And he proffered evidence

that the Pakistani Government abused MQM members, subjected them to

unfair arrest and political retribution, and threatened to subject any member

of MQM who returned to Pakistan from abroad to “a lifelong sentence.”

Thus Mirza’s membership in MQM formed the basis for his asylum status.

Second, Mirza’s 2019 application for withholding of removal listed

four grounds for relief. One of them was “[p]olitical opinion.” And Mirza

specifically claimed that he had been “persecuted because of membership in

. . . MQM.”

Third and last, Mirza expressed his continuing support for MQM

during his removal proceeding. Mirza told the IJ, “I am in favor of [MQM].”

Mirza’s brother-in-law informed an HSI investigator that Mirza and his

relatives remained “supporters of the . . . MQM in Pakistan.” And Mirza

offered zero evidence that he was unaware that MQM is a terrorist

organization.

3

It is true that Mirza was granted asylum in 1997 based on membership in MQM

and is now being denied asylum on the basis of his membership in the same organization.

But it is also true that Congress has significantly expanded the scope of the terrorism bar

since 1997. In 1997, the terrorism bar applied only to “representatives” and “members” of

terrorist organizations formally designated by statute or the Secretary of State. The Patriot

Act of 2001 broadened the definition of “terrorist organization” to include “a group of two

or more individuals” engaged in terrorism. Pub. L. No. 107–56, § 411, 115 Stat. 272, 347–

48 (2001). And the Emergency Supplemental Appropriations Act for Defense, The Global

War on Terror, and Tsunami Relief Act of 2005 extended the reach of the terrorism bar to

“members” of such terrorist organizations. Pub. L. No. 109–13, § 103, 119 Stat. 231, 307

(2005). The IJ determined that MQM met this broader, post-1997 definition of “terrorist

organization.” It is irrelevant that MQM was not a terrorist organization in 1997, before

Congress expanded the definition.

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This is more than substantial evidence to support the BIA’s finding

that Mirza was a member of MQM. No evidence he proffers compels an

alternate conclusion. See Qorane, 919 F.3d at 909.

The petition for review is DENIED.

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