Solomon Nuru v. Merrick Garland

• Court: Court of Appeals for the Fourth Circuit
• Decided: April 20, 2021
• Docket: 19-1959
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-1959

SOLOMON NURU,

Petitioner,

v.

MERRICK B. GARLAND, United States Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals.

Argued: October 27, 2020 Decided: April 20, 2021

Before GREGORY, Chief Judge, and DIAZ and RICHARDSON, Circuit Judges.

Petition for review denied by unpublished opinion. Judge Diaz wrote the opinion, in which Chief Judge Gregory and Judge Richardson joined.

ARGUED: James Algernon Roberts, LAW OFFICE OF JAMES A. ROBERTS, Fairfax, Virginia, for Petitioner. Paul R. Perkins, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Joseph H. Hunt, Assistant Attorney General, Jeffrey Bossert Clark, Acting Assistant Attorney General, Cindy S. Ferrier, Assistant Director, Office of Immigration Litigation, Sunah Lee, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Unpublished opinions are not binding precedent in this circuit. DIAZ, Circuit Judge:

Solomon Nuru, an Ethiopian native and citizen, petitions for review of a Board of

Immigration Appeals order dismissing his appeal of an Immigration Judge’s (“IJ”) decision

ordering his removal.

Nuru argues that he wasn’t removable because he has derivative asylee status as a

beneficiary of an IJ’s grant of asylum to his mother. But U.S. Citizenship and Immigration

Services (“USCIS”) terminated his mother’s asylee status in 2013, which in turn terminated

Nuru’s derivative status. And although Nuru’s mother was again granted asylum in 2018,

that grant was based on a new asylum application that she filed in 2016.

Nuru didn’t qualify for derivative asylee status when his mother filed her new

asylum application because he was an adult at the time. And he didn’t seek any other relief

from removal. The IJ thus correctly found Nuru removable, and the Board properly

affirmed. We therefore deny Nuru’s petition for review.

I.

Nuru’s mother came to the United States from Ethiopia in November 2003 and

applied for asylum through USCIS’s Asylum Office. The Asylum Office granted her

application the following month. She subsequently petitioned for derivative asylee status

for her minor children, one of whom was Nuru. The Department of Homeland Security

(“DHS”) granted these petitions, and fourteen-year-old Nuru was admitted to the United

States in 2006.

2 Five years later, USCIS issued a Notice of Intent to Terminate Nuru’s mother’s

grant of asylum, suspecting fraud in her 2003 asylum application. See 8 C.F.R.

§ 208.24(a)(1) (“[A]n asylum officer may terminate a grant of asylum made under the

jurisdiction of USCIS if, following an interview, the asylum officer determines that . . .

[t]here is a showing of fraud in the alien’s application such that he or she was not eligible

for asylum at the time it was granted.”). USCIS terminated Nuru’s mother’s asylee status

in 2013, which likewise terminated Nuru’s derivative status. See 8 C.F.R. § 208.24(d)

(“The termination of asylum status for a person who was the principal applicant shall result

in termination of the asylum status of a spouse or child whose status was based on the

asylum application of the principal.”). Nuru’s mother, Nuru, and Nuru’s siblings were

issued Notices to Appear and placed in removal proceedings. See 8 C.F.R. § 208.24(e)

(“When an alien’s asylum status or withholding of removal or deportation is terminated

under this section, [USCIS] shall initiate removal proceedings.”).

Nuru’s proceedings began in Baltimore, Maryland, where he initially appeared

together with his mother and siblings. Nuru’s venue was later changed to Arlington,

Virginia after he was arrested in Maryland and was subsequently taken into DHS custody

in Virginia. Because Nuru’s arguments on appeal are largely based on what occurred in

his mother’s proceedings, we start by describing both proceedings.

A.

At her first hearing, Nuru’s mother admitted the factual allegations in her Notice to

Appear and conceded removability. She also requested a hearing to adjudicate her claims

for relief from removal: asylum, withholding of removal, and relief under the Convention

3 Against Torture. But rather than filing an application for that relief, she first made the

argument that Nuru makes on appeal.

Specifically, Nuru’s mother argued that she didn’t need to file a new application

because the Asylum Office had referred her 2003 asylum application to the immigration

court pursuant to 8 C.F.R. § 208.14(c). 1 The government responded that her application

hadn’t been referred, but was instead terminated by USCIS pursuant to 8 C.F.R.

§ 208.24(a)(1). Thus, the government argued, she was required to file a new application

before her claims could be adjudicated.

The IJ agreed with the government, finding that the 2003 asylum application was

terminated, not referred. The IJ found the following undisputed facts: (1) the Asylum

Office granted Nuru’s mother’s asylum application on December 15, 2003; (2) she received

a Notice of Intent to Terminate on November 24, 2011; (3) she attended a hearing during

which USCIS terminated her asylum status; and (4) she never received a Notice of Referral.

“Based on the foregoing,” the IJ explained, the 2003 application “was clearly

terminated.” ECF No. 54-2, at 157. And, the IJ reasoned, “[n]either the regulations nor

the case law grants an alien the option to pursue a previously terminated asylum application

in immigration court.” Id. Instead, such an alien may reapply for asylum when placed into

removal proceedings pursuant to 8 C.F.R. § 208.24(e). Id. (citing Matter of A-S-J-, 25 I.

& N. Dec. 893 (B.I.A. 2012); Qureshi v. Holder, 663 F.3d 778 (5th Cir. 2011)). Thus, the

1 8 C.F.R. § 208.14(c) provides that, if an asylum officer doesn’t initially grant asylum to an applicant, “the asylum officer shall deny, refer, or dismiss the application.”

4 IJ concluded, if Nuru’s mother desired relief from removal, she needed to file a new

application.

Nuru’s mother, together with her children, filed an interlocutory appeal of the IJ’s

decision. 2 While the appeal was pending, Nuru’s mother filed a new asylum application

on behalf of herself and Nuru’s sister, who was still a minor. Several months later, the

Board issued a written decision declining to exercise jurisdiction over the interlocutory

appeal, reasoning that it didn’t “fall within the limited ambit of cases” in which the Board

deems it appropriate to do so. 3 ECF No. 54-2, at 120. The Board ordered that the record

be returned to the IJ without further action. Neither Nuru’s mother nor any of her children

petitioned for review of the Board’s decision.

Twenty months later, the IJ issued an oral decision granting Nuru’s mother’s new

asylum application. The application, filed in 2016, requested asylum on both the grounds

(and evidence) originally presented in her 2003 asylum application and, alternatively, on

new grounds (and evidence) presented for the first time. As the record before us doesn’t

include a transcript of the hearing, it’s unclear upon which ground the IJ based his grant of

asylum. No one appealed the IJ’s decision; thus, Nuru’s mother regained asylee status in

2018.

This included Nuru, as the appeal predated his arrest and the transfer of venue in 2

his proceedings. 3 The Board also noted that each respondent, including Nuru, had filed their own asylum applications with the immigration court and thus would be able to appeal if subject to an adverse order.

5 B.

Like his mother, Nuru admitted the factual allegations in his Notice to Appear and

conceded removability. Specifically, Nuru conceded that (1) he’s not a United States

citizen or national; (2) he is an Ethiopian native and citizen; (3) he derived asylee status as

a beneficiary of a Refugee and Asylee Relative Petition (I-730) approved on June 16, 2005;

(4) he was admitted as an asylee on August 12, 2006; (5) his asylee status was terminated

on August 14, 2013 because he was the dependent of an applicant whose asylee status was

terminated; and (6) he remained in the United States beyond August 14, 2013 without

authorization.

Two years later—while his mother’s interlocutory appeal to the Board was

pending—Nuru filed his own asylum application with the IJ. But he didn’t pursue that

application at his hearing. Instead, Nuru argued that he had regained his derivative asylee

status because his mother’s 2003 asylum application was referred to the immigration court

and granted.

The IJ rejected Nuru’s argument and held that he wasn’t an asylee. The IJ reasoned

that Nuru’s derivative asylee status was terminated when his mother’s status was

terminated and that, under Matter of A-S-J-, the IJ didn’t have jurisdiction to review that

termination. 4 Further, the IJ specifically rejected Nuru’s argument that 8 C.F.R.

4 A sister circuit has held that USCIS lacks statutory authority to unilaterally terminate an alien’s asylee status. See Nijjar v. Holder, 689 F.3d 1077 (9th Cir. 2012). However, we don’t have jurisdiction over this issue because Nuru didn’t raise it to the IJ or the Board. See 8 U.S.C. § 1252(d)(1) (“A court may review a final order of removal only if the alien has exhausted all administrative remedies available to the alien as of

6 § 208.14(c) required USCIS to refer Nuru’s mother’s 2003 asylum application to the

immigration court after it terminated her asylum status in 2013. Thus, the IJ found, Nuru

was properly in removal proceedings and could proceed with (or update) his own

application for relief from removal. Nuru requested time to decide what he wanted to do,

so the IJ continued the proceedings.

Nuru subsequently withdrew his asylum application and indicated that he didn’t

have an asylum claim. Accordingly, the IJ ordered Nuru removed to Ethiopia. Nuru

appealed the removal order to the Board, where he continued to argue that his removal

proceedings should be terminated because he regained derivative asylee status when his

mother was granted asylum in 2018.

The Board affirmed the IJ and dismissed Nuru’s appeal. The Board explained that

Nuru’s derivative asylee status was terminated when his mother’s asylee status was

terminated in 2013. The Board rejected Nuru’s argument that his mother’s 2003 asylum

application had been “referred” and instead found that Nuru didn’t qualify for derivative

status when she filed her new application in 2016. Though Nuru was entitled to file his

own asylum application, he chose to abandon his application and forgo any other relief

from removal. Thus, the Board held, the IJ correctly found Nuru removable. Nuru timely

right.”); Massis v. Mukasey, 549 F.3d 631, 638 (4th Cir. 2008) (“[A]n alien’s failure to dispute an issue on appeal to the [Board] constitutes a failure to exhaust administrative remedies that bars judicial review.”). Nuru also waived this issue on appeal by conceding (in his opening brief) that USCIS properly terminated his mother’s asylee status. Appellant’s Br. at 8, 11. We therefore express no opinion on this question.

7 II.

On appeal, Nuru continues to argue that he has derivative asylee status because his

mother’s 2003 asylum application was referred to the immigration court in 2013 and thus

must have been granted in 2018. We uphold a Board decision regarding a removal order

unless it is manifestly contrary to law. Gandziami-Mickhou v. Gonzales, 445 F.3d 351,

354 (4th Cir. 2006).

The fundamental problem with Nuru’s argument is that it’s belied by the record in

his mother’s proceedings. Despite his mother’s attempt to persuade the immigration court

to consider her 2003 asylum application in adjudicating her claims for relief from removal,

the IJ required her to file a new application for consideration instead. And there’s no

question that she filed a new asylum application in 2016—which served as the basis of her

2018 asylum grant. Because Nuru was over twenty-one years old when his mother filed

her 2016 asylum application, he can’t have obtained derivative asylee status when that

application was granted. 5 See 8 U.S.C. § 1101(b)(1) (defining “child” for purposes of

derivative asylee status as “an unmarried person under twenty-one years of age”).

To the extent that Nuru is arguing that USCIS should have referred his mother’s

2003 asylum application to the immigration court in 2013, that ship sailed when (1) no one

petitioned for review of the Board’s order denying the interlocutory appeal where Nuru’s

5 There’s also no indication that Nuru’s mother included Nuru in her 2016 application or has since petitioned for derivative asylee status on his behalf.

8 mother made that argument, and (2) no one appealed the IJ’s decision granting Nuru’s

mother asylum on the basis of her 2016 asylum application.

As a respondent in his mother’s proceedings at the time, Nuru could have petitioned

for review of the Board’s interlocutory order but failed to do so. And there’s simply no

legal basis for unwinding, remanding, or revoking his mother’s later grant of asylum when

no one appealed the IJ’s decision in her case. 6

* * *

Because the record plainly contradicts Nuru’s sole basis for contesting removability,

we have no reason to disturb the Board’s decision. Nuru’s petition for review is therefore

DENIED.

6 Nor is it clear that Nuru’s mother would have been granted asylum in 2018 based on her 2003 asylum application, as her 2016 asylum application included grounds for asylum (and related evidence) that her 2003 asylum application didn’t.