Altin Shuti v. William Barr

• Court: Court of Appeals for the Sixth Circuit
• Decided: November 12, 2020
• Docket: 19-4224
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 20a0641n.06

Case No. 19-4224

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Nov 12, 2020 ALTIN BASHKIM SHUTI, ) DEBORAH S. HUNT, Clerk ) Petitioner, ) ) ON PETITION FOR REVIEW v. ) FROM THE BOARD OF ) IMMIGRATION APPEALS WILLIAM P. BARR, Attorney General, ) ) Respondent. )

BEFORE: BOGGS, STRANCH, and THAPAR, Circuit Judges.

THAPAR, Circuit Judge. After Altin Shuti committed unarmed robbery, the Department

of Homeland Security moved to deport him. Shuti objected, arguing that his crime doesn’t qualify

for removal and that he would be persecuted if deported to Albania. The Board of Immigration

Appeals rejected Shuti’s claims. Because unarmed robbery (as Michigan defines it) is a crime of

violence, and because Shuti did not establish that he is more likely than not to be persecuted in

Albania, we deny the petition for review.

I.

Altin Shuti is an Albanian citizen. When he was thirteen, his family fled to the United

States because they feared persecution by the Socialist Party of Albania, which had placed Shuti’s

father in a forced labor camp. Shuti became a lawful permanent resident and his parents became Case No. 19-4224, Shuti v. Barr

United States citizens. But six years later, Shuti pled guilty to unarmed robbery, and the

Department of Homeland Security moved to deport him.

The Department of Homeland Security notified Shuti that he was removable because his

Michigan unarmed robbery conviction was a “crime of violence” as defined by 18 U.S.C. § 16.

Shuti agreed and conceded that he was removable.

But Shuti’s case didn’t end there. Shuti claimed that he would be persecuted in Albania

and applied for relief under the Immigration and Nationality Act and the Convention Against

Torture. The agency denied his request.

So Shuti changed his approach and argued on appeal that he was not removable. There

were two statutory definitions of a “crime of violence,” and Shuti claimed that one of the two was

unconstitutional. See 18 U.S.C. § 16; id. § 16(b). Our court agreed: We remanded to the Board

of Immigration Appeals for further proceedings. Shuti v. Lynch, 828 F.3d 440, 451 (6th Cir. 2016)

(Shuti I).

On remand, the agency held that Shuti’s conviction still qualified under the unchallenged

definition of a “crime of violence,” 18 U.S.C. § 16(a). The agency also affirmed the denial of

Shuti’s request for relief under the Immigration and Nationality Act and the Convention Against

Torture.

Shuti now petitions for review and argues that the agency erred by: (1) holding that his

unarmed robbery conviction is a “crime of violence,” (2) denying him relief under the Immigration

and Nationality Act and the Convention Against Torture, and (3) denying his request to remand

for additional factfinding. None of these arguments is persuasive, so we deny the petition for

review.

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II.

Shuti’s first argument is that the agency erred by holding that his unarmed robbery

conviction is a “crime of violence.” We review the agency’s decision de novo. See Van Don

Nguyen v. Holder, 571 F.3d 524, 528 (6th Cir. 2009).

A lawful permanent resident is removable if he has been convicted of a “crime of violence.”

A “crime of violence” is defined as “an offense that has as an element the use, attempted use, or

threatened use of physical force.” 18 U.S.C. § 16(a); see also 8 U.S.C. §§ 1227(a)(2)(A)(iii)

(allowing removal for aggravated felonies), 1101(a)(43)(F) (defining aggravated felonies to

include crimes of violence).

To determine whether Shuti’s unarmed robbery conviction is a “crime of violence,” we

apply what is known as the categorical approach. We focus solely on the elements of the crime

and ask they “fit[] within the ‘generic’ federal definition of a corresponding aggravated felony.”

Moncrieffe v. Holder, 569 U.S. 184, 190 (2013). We also ask whether there is a realistic

probability that an individual could be prosecuted without using, attempting to use, or threatening

to use physical force. Id. at 190–91; see Lowe v. United States, 920 F.3d 414, 420 (6th Cir. 2019)

(Thapar, J., concurring) (“[W]e must engage in a hypothetical exercise to determine whether the

crime’s elements could be committed in a non-violent fashion.”). If so, the offense doesn’t count

as a “crime of violence.”

In Shuti’s case, we don’t have to start our analysis from scratch. We recently determined

that Michigan unarmed robbery qualifies as a “crime of violence” under § 4B1.2(a)(1) of the

Sentencing Guidelines. United States v. Fuller-Ragland, 931 F.3d 456, 465 (6th Cir. 2019). The

Sentencing Guidelines and the provision here share almost identical definitions of a “crime of

violence.” Compare 18 U.S.C. § 16(a) (“an offense that has as an element the use, attempted use,

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or threatened use of physical force against the person or property of another”), with U.S.S.G.

§ 4B1.2(a)(1) (“any offense . . . [that] has as an element the use, attempted use, or threatened use

of physical force against the person of another”). In fact, we have often used one to help interpret

the other. United States v. Verwiebe, 874 F.3d 258, 263–64 (6th Cir. 2017); see Hernandez-

Maldonado v. Barr, 773 F. App’x 280, 282 (6th Cir. 2019) (recognizing that because 18 U.S.C.

§ 16(a) “mirrors” § 4B1.2(a)(1) of the Sentencing Guidelines, the clauses are often read “the same

way” (quoting Verwiebe, 874 F.3d at 260)). Given the near-identical definitions, our analysis

under the Sentencing Guidelines that Michigan unarmed robbery is a “crime of violence” applies

here. Thus, the agency did not err in finding that Shuti had committed a “crime of violence.”

Shuti’s arguments to the contrary are unpersuasive. He contends that unarmed robbery

does not have an element of physical force because it includes offenses such as assault, which can

be carried out with barely any force (like spitting). But our job is not to “imagin[e] unlikely crimes

that theoretically could be covered” by Michigan’s unarmed robbery statute; rather, there must be

a “realistic probability the statute would be used to criminalize the conduct.” Verwiebe, 874 F.3d

at 260–61. Although “Michigan courts have made it clear that actual force is not necessary to

commit a robbery,” unarmed robbery does include the threatened use “of at least enough force to

overcome a victim’s resistance.” Fuller-Ragland, 931 F.3d at 462 n.5, 464–65. And under

Stokeling v. United States, “force necessary to overcome a victim’s resistance” qualifies as

“physical force.” 139 S. Ct. 544, 555 (2019).

Shuti also raises procedural objections. He says that res judicata and waiver bar the agency

from arguing he’s removable for committing a “crime of violence.” But neither doctrine applies

here.

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Res Judicata. Shuti contends that res judicata bars the agency from arguing that he is

removable after we vacated the first removal order in Shuti I. Res judicata prevents parties from

relitigating claims that have already been determined by a final judgment. See Arangure v.

Whitaker, 911 F.3d 333, 337 (6th Cir. 2018). But Shuti I did not render a final judgment on Shuti’s

removability: Our review was limited to whether one of the two definitions of a “crime of

violence” was unconstitutional. We did not terminate Shuti’s removal proceedings. Nor did we

decide whether Shuti was removable on other grounds. We merely vacated the prior judgment for

the Board of Immigration Appeals and directed it to conduct “further proceedings consistent with

[our] opinion.” Shuti I, 828 F.3d at 441, 451. Because there has been no final judgment, res

judicata does not apply.

Waiver. Shuti argues the agency waived its argument that he committed a “crime of

violence.” Waiver is the “intentional relinquishment or abandonment of a known right.” United

States v. Olano, 507 U.S. 725, 733 (1993) (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)).

And to be sure, the agency did not specify which of the two definitions of a “crime of violence”

applied to Shuti until after we decided Shuti I. But that’s because it had no reason to. The entire

removal proceeding had been predicated on the idea that Shuti was removable under either or both

definitions of a “crime of violence.” When the Department of Homeland Security initiated

removal, it notified Shuti that he was removable because he had committed a “crime of violence.”

Then Shuti himself conceded that he was removable. Twice. It was only after we found one

definition of a “crime of violence” unconstitutional that there was an open question about whether

Shuti’s conviction still qualified under the other definition.

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Shuti insists the agency knew before Shuti I that one of the definitions for a “crime of

violence” may have been unconstitutional because the Supreme Court had decided that an

analogous clause in a different statute was unconstitutional. See Johnson v. United States, 576

U.S. 591, 606 (2015) (holding 18 U.S.C. § 924(e)(2)(B) unconstitutional). But we do not fault the

agency for failing to predict if, and how, a given circuit will extend Supreme Court precedent. The

agency has consistently maintained that Shuti is removable for committing a “crime of violence.”

So waiver does not apply.

III.

Next, Shuti claims that the agency erred by denying him relief under the Immigration and

Nationality Act (INA) and the Convention Against Torture (CAT). The INA and CAT offer relief

to noncitizens who show they would probably be persecuted if returned to their country of origin.

8 U.S.C. § 1231(b)(3)(A); 8 C.F.R. § 1208.16(c). But there are limitations: If a noncitizen has

committed a “particularly serious” crime, the INA offers no relief and the CAT offers only deferral

of removal. See 8 U.S.C. § 1231(b)(3)(B)(iv); 8 C.F.R. § 1208.16(d)(2). The agency held that

Shuti’s crime was “particularly serious,” so Shuti’s only remaining option was to apply for deferral

of removal under the CAT.

While Shuti may be eligible for relief under the CAT, that does not mean he is entitled to

it. An eligible noncitizen must still prove “that it is more likely than not that he or she would be

tortured if removed to the proposed country of removal.” 8 C.F.R. § 1208.16(c)(2); see id.

§ 1208.17(a). Shuti alleges that he will be physically tortured by the Socialist Party of Albania.1

But the agency determined that Shuti’s testimony was not credible and denied deferral of removal.

1 Shuti also claims he will be barred from attending college. Even if Shuti’s claim is true, it does not qualify as torture, which is defined as “severe pain or suffering.” 8 C.F.R. § 1208.18(a)(1); see Almuhtaseb v. Gonzales, 453 F.3d 743, 751 (6th Cir. 2006).

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Shuti challenges the agency’s rulings that his crime was “particularly serious” and that he

failed to establish a clear probability of torture in Albania. Since the Board of Immigration

Appeals adopted the immigration judge’s decision, we review both decisions. Khalili v. Holder,

557 F.3d 429, 435 (6th Cir. 2009). When reviewing the agency’s factual determinations, we use

the “‘highly deferential’ substantial-evidence test, meaning those findings stand ‘unless any

reasonable adjudicator would be compelled’ to disagree.” Kilic v. Barr, 965 F.3d 469, 473 (6th

Cir. 2020) (quoting Nasrallah v. Barr, 140 S. Ct. 1683, 1692 (2020)). And we review the agency’s

legal conclusions de novo. Id.

“Particularly Serious” Determination. Shuti first argues that the agency should have used

the categorical and modified categorical approach to determine whether his crime was

“particularly serious.” But the only cases Shuti cites for support address the standards for

“aggravated” or “violent” felonies. And Shuti does not explain why this caselaw—wrested from

different contexts—would bind our analysis about whether a crime is “particularly serious.” See

In re N-A-M-, 24 I. & N. Dec. 336, 344 (BIA 2007) (“[No] decision of which we are aware, has

ever suggested that the categorical approach . . . is applicable to the inherently discretionary

determination of whether a conviction is for a particularly serious crime.”).

Shuti next challenges the evidence the agency reviewed to determine whether his crime is

“particularly serious.” Shuti concedes the agency could consider any reliable evidence. But he

says the agency should not have considered his dismissed or uncharged conduct or the conduct of

other defendants. Except Shuti never explains why dismissed or uncharged conduct is

categorically unreliable. Nor does he provide any relevant authority to support his claim. So Shuti

forfeited this argument. See McPherson v. Kelsey, 125 F.3d 989, 995–96 (6th Cir. 1997) (“It is

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not sufficient for a party to mention a possible argument in the most skeletal way, leaving the court

to put flesh on its bones.” (cleaned up)).

Deferral of Removal Determination. Shuti argues the agency erred by rejecting as not

credible his testimony that he will face persecution if deported to Albania.

To prove he will be tortured in Albania, Shuti offers evidence of past mistreatment by the

Socialist Party of Albania. At his removal hearing, he testified that when he was eight years old

Socialist Party members threatened to kill him and his family. The problem for Shuti is that his

story was disputed by his own witness: his father. At the same removal hearing, Shuti’s father

testified that Shuti himself was never threatened or subjected to any mistreatment while in Albania.

Given the contradicting stories—and the lack of independent evidence corroborating Shuti’s

memories as an eight-year-old—we are not “compelled to disagree” with the agency’s finding that

Shuti’s testimony was not credible. Kilic, 965 F.3d at 473 (cleaned up).

Shuti also points to his family history, asserting that the Socialist Party of Albania had

persecuted his relatives in the past. He also notes a 2013 State Department report on Albania,

which references police beatings and corruption. But Shuti offers no credible evidence that Shuti

himself is likely to be tortured in present-day Albania. See id. at 474.

Shuti argues the agency failed to consider the totality of the circumstances and erred by

requesting corroborating evidence without sufficient notice. Both arguments are meritless. First,

Shuti argues the agency should have considered evidence of conditions in Albania and Shuti’s age

when he was allegedly threatened. But the immigration judge explicitly referenced both factors in

its decision. The immigration judge even determined that conditions in Albania had improved

markedly from Shuti’s childhood. Second, as Shuti acknowledges, we have already determined

that “federal law does not entitle illegal aliens to notice from the Immigration Court as to what sort

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of evidence the alien must produce to carry his burden.” Gaye v. Lynch, 788 F.3d 519, 530 (6th

Cir. 2015). So precedent forecloses this argument.

For all these reasons, the agency did not err in denying Shuti deferral of removal.

IV.

Shuti’s third and final argument is that the agency erred by denying his request to remand

for additional factfinding. We review the agency’s decision for abuse of discretion. Marqus v.

Barr, 968 F.3d 583, 592 (6th Cir. 2020).

A motion to remand is granted only where the “evidence sought to be offered is material

and was not available and could not have been discovered or presented at the [evidentiary]

hearing.” Shakkuri v. Barr, 780 F. App’x 286, 294 (6th Cir. 2019) (brackets in original). Shuti

argues remand is warranted here because conditions in Albania have changed since the agency

denied deferral of removal in 2015. But the only evidence Shuti provides is a report showing that

government officials sometimes mistreat suspects and prisoners. Shuti submitted nearly identical

information about police misconduct at his initial removal hearing. Thus, Shuti provides no new,

material evidence for consideration. See Shakkuri, 780 F. App’x at 294–95. The agency did not

abuse its discretion by denying remand.

We deny the petition for review.

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