Sarmed Hanna v. Eric Holder, Jr.

Filing

OPINION filed : Hanna s petition for review is DISMISSED for lack of jurisdiction, decision not for publication. Damon J. Keith and Eric L. Clay, Circuit Judges; and Algenon L. Marbley, U.S. District Judge for the Southern District of Ohio.--[Edited 11/04/2015 by YH]

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0734n.06

No. 14-3804
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
SARMED MICHAEL HANNA,

FILED
Nov 03, 2015
DEBORAH S. HUNT, Clerk

Petitioner,
v.
ON PETITION FOR REVIEW FROM
THE BOARD OF IMMIGRATION
APPEALS

LORETTA E. LYNCH, Attorney
General,
Respondent.

ORDER

BEFORE:

KEITH and CLAY, Circuit Judges; MARBLEY, District Judge.

Petitioner Sarmed Michael Hanna, a native and citizen of Iraq, seeks judicial review of
the decision by the Board of Immigration Appeals (“BIA”) dismissing his appeal from the
decision of an immigration judge (“IJ”) denying on discretionary grounds his application for
asylum. We dismiss Hanna’s petition for review.
Hanna crossed the U.S.-Mexico border without inspection in flight from ethnic and
political persecution in Iraq, and was subsequently granted asylum and withholding of removal
by an IJ on May 7, 1999. On September 2, 2005, his status was adjusted to that of a lawful
permanent resident. On July 14, 2009, Hanna was pulled over for speeding by two police
officers in Nevada. During the stop, Hanna gave written consent to a search of his vehicle. With
the use of a police dog, officers discovered thirty eight bags containing over five thousand grams

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of marijuana stashed in the panels of the car doors. Hanna eventually pled guilty to “knowingly
and intentionally” possessing a controlled substance in violation of Nevada Revised Statute
§ 453.336. Pursuant to the plea agreement he entered into with the prosecution, Hanna was
given a five year “suspended” sentence to be served on probation.
In light of his criminal conviction for a controlled substance violation, the Department of
Homeland Security placed Hanna in detention and removal proceedings in January 2014. An IJ
sustained the charges of removability under 8 U.S.C. § 1227(a)(2)(B)(i). After the IJ’s finding of
removability, Hanna applied for various forms of relief, including withholding of removal and
asylum. The IJ subsequently granted Hanna withholding of removal based on the government’s
stipulation that there was a clear probability that he would be subjected to persecution in Iraq.
The IJ found that Hanna was eligible for asylum, but exercised her discretion to deny him
asylum based on his convictions for possession of marijuana. Although she found that Hanna
had testified credibly that he did not know how the drugs came to be in his vehicle, the IJ relied
on the fact that Hanna pled guilty to knowingly or intentionally possessing a controlled substance
and the reality that an inordinate amount of drugs were found in his vehicle.
In a brief written opinion authored by a single member of the BIA, the BIA agreed with
the IJ that Hanna had not “met his burden of showing that his favorable equities outweigh the
negative factors,” including his convictions for possession of a controlled substance.
Because Hanna was convicted of a criminal offense relating to a controlled substance, see
8 U.S.C. § 1252(a)(2)(C), this Court lacks jurisdiction to review his petition unless it presents
“constitutional claims or questions of law.” 8 U.S.C. § 1252(a)(2)(D). Hanna contends that the
BIA erred by failing either to credit or reject the IJ’s favorable credibility finding when it upheld
the IJ’s decision to deny Hanna’s asylum claim. We find that Hanna’s argument “constitutes

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nothing more than a challenge to the BIA’s discretionary and fact-finding exercises cloaked as a
question of law.” Abdul v. Holder, 326 F. App’x 344, 347 (6th Cir. 2009) (quoting GarciaAguillon v. Mukasey, 524 F.3d 848, 850 (8th Cir. 2008)). Although some courts have found that
it may be an error of law where material facts have been “totally overlooked” or “seriously
mischaracterized” by the BIA, see Navarro v. Holder, 505 F. App’x 441, 445 (6th Cir. 2012), we
find that this is not such a case because the BIA upheld the IJ’s finding that the conviction for
possession of a controlled substance outweighed the other factors that might merit a favorable
exercise of discretion. See id. at 446.
Additionally, because Hanna demonstrated no substantial issue of fact or law in his
appeal of the IJ’s decision, we need not reach the question of whether we have jurisdiction to
review the BIA’s failure to refer his appeal to a three-member panel.

See 8 C.F.R.

§ 1003.1(d)(2)(i) (2015).
Accordingly, we DISMISS Hanna’s petition for review for lack of jurisdiction.
ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk

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