Hatim Zakar v. Jefferson Sessions, III

• Court: Court of Appeals for the Sixth Circuit
• Decided: June 26, 2018
• Docket: 17-4073
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 18a0314n.06

No. 17-4073

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Jun 26, 2018 HATIM JAMIL ZAKAR, ) DEBORAH S. HUNT, Clerk ) Petitioner, ) ) v. ) ON PETITION FOR REVIEW ) FROM THE UNITED STATES JEFFERSON B. SESSIONS, III, Attorney General, ) BOARD OF IMMIGRATION ) APPEALS Respondent. ) ) )

BEFORE: KEITH, ROGERS, and BUSH, Circuit Judges.

ROGERS, Circuit Judge. Hatim Zakar was born in Iraq but lawfully admitted to the United

States at an early age. He was convicted in a Michigan court of a serious drug offense, for which

he served nineteen years in prison. After he was paroled, Zakar stipulated to his removability and

was ordered removed. Zakar now seeks to reopen his removal proceedings, arguing that his

stipulation to his removability was involuntary and that conditions in Iraq have changed such that

there is now a clear probability that he will face persecution because of his Chaldean Christian

religion. But due to Zakar’s conviction, we are without jurisdiction to review his challenges to the

Board of Immigration Appeals’ (“BIA”) factual findings regarding both his prima facie eligibility

for deferral of removal under the Convention Against Torture (“CAT”) and whether country

conditions in Iraq had changed. Also, we are precluded from reviewing the BIA’s decision to

decline to exercise its sua sponte authority to reopen Zakar’s case. No. 17-4073 Hatim Jamil Zakar v. Jefferson B. Sessions, III

Hatim Zakar is a fifty-four-year-old native and citizen of Iraq, who immigrated to the

United States in 1970, when he and his parents were granted lawful-permanent-resident status. In

1991, he was convicted in Michigan of conspiring to deliver or manufacture more than 650 grams

of cocaine, which at the time carried a mandatory-minimum sentence of life without parole. After

a change in the law, Zakar was paroled in 2009, but he attracted the attention of Immigration and

Customs Enforcement, who alleged that Zakar was removable due to his conviction.

Zakar initially stipulated to his removability, but it was not clear whether Zakar feared

returning to Iraq: the stipulation said that Zakar had “no fear of returning to [Iraq],” but Zakar’s

supplied biographical information said that he had “fear of being harmed and persecuted if returned

to Iraq.” The Immigration Judge (“IJ”) therefore did not accept the stipulation and set the case for

a master-calendar hearing. Zakar appeared at that hearing without counsel and insisted on being

removed from the United States, saying, “I am afraid to go back to Iraq, but your honor, I’ve been

locked up [in state prison] 19 years, and I just don’t want to be locked up no more,” and, “I really

don’t want to get deported, but like I told you, I just want to get out of jail. And if that’s what it

takes, to deport me, then that’s your decision, sir.” The IJ accordingly issued a removal order, to

which Zakar waived his appellate rights (apparently at least in part because he would have

remained in detention pending appeal). Zakar was subsequently released from custody.

Seven years later, in 2016, Zakar filed a motion to reopen his removal proceedings, seeking

withholding of removal and also discretionary relief under Section 212(c) of the Immigration and

Nationality Act (“INA”) (codified at former 8 U.S.C. § 1182(c)). The motion argued that Zakar’s

stipulating to removal was not voluntary but rather was obtained under duress, and thus the

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Immigration Court should exercise its sua sponte authority to reopen his case.1 He also argued

that country conditions in Iraq had changed, namely the rise of ISIS, such that he should be allowed

to reopen his case. The IJ denied the motion, concluding:

The Court finds that respondent has sufficiently demonstrated changed country conditions in Iraq. However, respondent is statutorily ineligible for withholding of removal under the Act and for relief under former section 212(c) of the Act [due to his conviction and the length of his incarceration, respectively]. He is also ineligible for deferral of removal under the Torture Convention, because he has not provided even prima facie evidence that he would be tortured by the Iraqi Government or public officials thereof.

The IJ also concluded that “[Zakar’s] responses to IJ Newberry [the former IJ who conducted

Zakar’s hearing] during his master calendar hearing confirm that respondent heard and understood

all of his rights, and knowingly waived his right to appeal and accepted IJ Newberry’s order.”

Zakar appealed to the Board of Immigration Appeals. While that appeal was pending

before the BIA, he filed an emergency motion to reopen and to stay his removal with the BIA,

claiming again that he was eligible for relief under Section 212(c), withholding of removal, and

deferral of removal under the Convention Against Torture. The BIA dismissed Zakar’s appeal.

First, the BIA concluded that Zakar’s removability was not based on the stipulation but rather on

his statements at the hearing, at which Zakar showed that he understood the consequences of his

conceding removability. Next, the BIA concluded that, in any event, Zakar was statutorily

ineligible for withholding of removal because his drug-trafficking conviction constitutes a

“particularly serious crime” under Section 241(b)(3)(B)(ii) (codified at 8 U.S.C.

§ 1231(b)(3)(B)(ii)). Zakar was also ineligible for relief under Section 212(c) (codified at 8 U.S.C.

1 Because this claim is not one based on changed country conditions (or any other exception to the time-and-number limitation), and because the claim was raised in a motion brought far outside the otherwise-applicable ninety-day time limit, it is cognizable only as a request to exercise the BIA’s sua sponte authority. -3- No. 17-4073 Hatim Jamil Zakar v. Jefferson B. Sessions, III

§ 1182(c)), the BIA determined, because he had failed to “meaningfully challenge on appeal the

Immigration Judge’s conclusion that [he] is ineligible for section 212(c) relief because [he] served

19 years in prison for his aggravated felony conviction.” The BIA also concluded that Zakar had

not “show[n] that it is more likely than not that he would be tortured in Iraq by or with the

acquiescence of a public official or other person acting in an official capacity,” as would be

required to establish prima facie eligibility for deferral of removal under the CAT. Finally, with

respect to Zakar’s second, emergency motion to reopen, the BIA concluded that it was barred both

because it was too late and because it was a successive motion that relied on the same evidence of

changed country conditions as Zakar’s first motion, and thus its arguments could have been

presented earlier.

Zakar now petitions for review. He argues that the BIA’s conclusion that he had not

established prima facie eligibility for deferral of removal under the CAT was erroneous, that the

BIA improperly applied the time-and-number limits to dismiss his second motion to reopen, and

that the BIA erred by declining to exercise its sua sponte authority to reopen his case. None of

these arguments warrants our granting his petition.

Zakar’s conviction precludes our jurisdiction over most of this case. 8 U.S.C.

§ 1252(a)(2)(C) provides:

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 reason of having committed a criminal offense covered in section 1182(a)(2) or 1227(a)(2)(A)(iii), (B), (C), or (D) of this title . . . .

Id. (emphasis added). Section 1227(a)(2)(A)(iii) in turn provides that an alien who commits an

“aggravated felony” while in the United States is deportable. Section 1101(a)(43) defines

“aggravated felony” to include “illicit trafficking in a controlled substance (as defined in section

802 of title 21), including a drug trafficking crime (as defined in section 924(c) of title 18),”

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§ 1101(a)(43)(B), and also “an attempt or conspiracy to commit an offense described in this

paragraph,” § 1101(a)(43)(U). Zakar’s conviction for conspiring to deliver or manufacture more

than 650 grams of cocaine was a controlled-substance offense under those sections. Further, the

IJ determined that Zakar’s conviction was an aggravated felony, and Zakar has not challenged that

finding on appeal.

Moreover, Zakar was “removable by reason of having committed a [covered] criminal

offense.” 8 U.S.C. § 1252(a)(2)(C). The government originally served Zakar with a Notice to

Appear alleging that he was removable because of his conviction, and the IJ subsequently ordered

him removed on that basis. In Ventura-Reyes v. Lynch, 797 F.3d 348 (6th Cir. 2015), we held that

Section 1252(a)(2)(C) means what it says; we explained that “the jurisdictional bar is applied to

any order of removal ‘against an alien who is removable by reason of having committed’ a relevant

crime.” Id. at 357–58 (quoting 8 U.S.C. § 1252(a)(2)(C)). We also cited with approval Judge

Graber’s concurrence in Pechenkov v. Holder, 705 F.3d 444 (9th Cir. 2012), which explained,

“[T]he applicability of § 1252(a)(2)(C) is a straightforward inquiry: Was the alien charged with

removability because of a relevant crime, and did the IJ correctly sustain that charge?” Id. at 451–

52 (Graber, J., concurring). Thus, under Ventura-Reyes, the jurisdictional limitation of Section

1252(a)(2)(C) applies to Zakar’s case.

Notwithstanding the above, Section 1252(a)(2)(D) preserves judicial review of

“constitutional claims or questions of law,” the latter of which we have interpreted to mean

questions akin to those of statutory construction. In Almuhtaseb v. Gonzales, 453 F.3d 743 (6th

Cir. 2006), we explained that “[t]he purpose of section 106(a)(1)(A)(iii) is to permit judicial review

over those issues that were historically reviewable on habeas[:] constitutional and statutory-

construction questions, not discretionary or factual questions.” Id. at 748 (first alteration in

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original) (quoting Chen v. U.S. Dep’t of Justice, 434 F.3d 144, 153 (2d Cir. 2006)). But the two

main arguments pressed by Zakar are factual, and we therefore lack jurisdiction over them.

Zakar’s first argument—that the BIA erred in finding that he did not show that he would

more likely than not be tortured upon his return to Iraq, and thus that he did not establish prima

facie eligibility for relief under the CAT—is clearly of a factual nature. Our recent published

opinion in Shabo v. Sessions, No. 17-3881, 2018 WL 2772773 (6th Cir. June 11, 2018), held

expressly that and thus controls this case. Id. at *2. There we said, “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.” Id. We therefore lack jurisdiction to review the BIA’s likelihood-

of-torture determination.

Section 1252(a)(2)(C) also precludes our jurisdiction over Zakar’s second, changed-

country-conditions argument. Under 8 U.S.C. § 1229a(c)(7), a movant who shows material and

previously unavailable evidence of changed country conditions can file a motion to reopen beyond

the otherwise-applicable ninety-day time limit. But here, the BIA concluded that “[Zakar] ha[d]

not presented material evidence that was not available and could not have been discovered or

presented at the previous hearing.” As a result, the BIA determined that the changed-country-

conditions exception did not apply and therefore applied the ninety-day limitation to dispose of

Zakar’s second motion to reopen. Zakar argues on appeal that the BIA’s conclusion was erroneous,

but that argument necessarily challenges the BIA’s factual determination regarding changed

country conditions in Iraq, which we are jurisdictionally barred from reviewing. In Pepaj v.

Mukasey, 509 F.3d 725, 727–28 (6th Cir. 2007), we held that “we have no appellate jurisdiction

over [the] factual determination” of whether country conditions have changed. Id. at 727–28

(citing Almuhtaseb, 453 at 748–49). Here, because Zakar filed his second motion to reopen over

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eight years after he was ordered removed, and because Section 1252(a)(2)(C) bars us from

revisiting the BIA’s determination that country conditions in Iraq had not changed, the BIA’s

decision that the motion was untimely must stand. And to the extent Zakar argues that the BIA

erroneously focused on whether conditions in Iraq had changed between his first and second

motions, rather than since his initial hearing in 2009, he has not framed the argument as a question

of law over which we would have jurisdiction in accordance with our decision in Almuhtaseb,

453 F.3d at 748.

Finally, Zakar’s last argument—that the “BIA erred in failing to exercise its sua sponte

authority to reopen” his proceedings to consider whether his stipulation of removability was made

“unintelligently[] and under duress”—is squarely foreclosed by circuit precedent. In Harchenko

v. INS, 379 F.3d 405 (6th Cir. 2004), we held that “[t]he decision whether to invoke sua sponte

authority is committed to the unfettered discretion of the BIA,” and that there is “no standard by

which to judge the agency’s exercise of discretion.” Id. at 410–11. We held that review of the

BIA’s declining to exercise its sua sponte reopening authority therefore was precluded by the

Administrative Procedure Act, 5 U.S.C. § 701(a)(2). Id. at 411. More recently, in Rais v. Holder,

768 F.3d 453, 460–62 (6th Cir. 2014), we held that Harchenko remains good law notwithstanding

the Supreme Court’s decision in Kucana v. Holder, 558 U.S. 233 (2010), which dealt with the

jurisdiction-stripping provision of 8 U.S.C. § 1252(a)(2)(B), rather than the APA § 701(a)(2)

preclusion of judicial review. Thus, under binding circuit precedent, the BIA’s forgoing the

exercise of its sua sponte authority is a decision that we cannot review.

The petition for review is dismissed.

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