Yasser Hih v. Loretta Lynch

Filing

OPINION and JUDGMENT filed : The petition for review is DISMISSED. Decision for publication. Eric L. Clay and John M. Rogers (AUTHORING), Circuit Judges; and Amul R. Thapar, U.S. District Judge for the Eastern District of Kentucky, sitting by designation.

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 16a0032p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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YASSER HIH,
Petitioner,
v.

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LORETTA E. LYNCH, U.S. Attorney General,
Respondent.

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No. 15-3475

On Petition for Review of a Final Order of
the Board of Immigration Appeals
No. A095 599 451.
Argued: January 15, 2016
Decided and Filed: February 9, 2016
Before:

CLAY and ROGERS, Circuit Judges; THAPAR, District Judge.*
_________________
COUNSEL

ARGUED: E. Dennis Muchnicki, Columbus, Ohio, for Petitioner. Matt Crapo, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: E.
Dennis Muchnicki, Columbus, Ohio, for Petitioner.
Matt Crapo, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

*

The Honorable Amul R. Thapar, United States District Judge for the Eastern District of Kentucky, sitting
by designation.

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_________________
OPINION
_________________
ROGERS, Circuit Judge. The Board of Immigration Appeals affirmed the Immigration
Judge’s asylum denial in this case, but remanded for specific voluntary departure advisals.
Although such a decision was final under our holding in Giraldo v. Holder, 654 F.3d 609 (6th
Cir. 2011), Hih did not petition for review within 30 days, but instead went back to the
Immigration Judge, waived voluntary departure, appealed to the Board again, and now petitions
for judicial review of the Board’s original decision.

The Board treated his appeal as a

reconsideration request and denied it. Hih’s present challenge is to the substantive Board
decision that he did not appeal earlier. Because of lateness, we lack jurisdiction to address that
challenge. Our decision in Giraldo to dismiss “without prejudice” a petition that was timely
brought in that case does not excuse Hih from timely filing such a petition to review the Board
decision.
Yasser Hih is a citizen of Israel and the occupied territories, a Palestinian who has lived
in the West Bank. He overstayed a nonimmigrant visa in the United States and was subjected to
removal proceedings. He challenged his removal by seeking asylum, withholding of removal,
and relief under the Convention Against Torture. At the hearing before an Immigration Judge
(IJ), Hih presented testimony that he had worked as an anti-terrorist agent with the Palestinian
Authority, and that this subjected him to the threat of persecution from Hamas. The IJ found Hih
not to be credible, relying in part on discrepancies between Hih’s original asylum application
from 2002 and his updated asylum application from 2009. The IJ also found Hih’s testimony to
be vague and inconsistent in several respects, and in addition questioned the validity of certain
certificates that Hih produced. The IJ accordingly denied Hih’s request for asylum and related
relief, but granted Hih’s request for voluntary departure.
Hih appealed the IJ’s removal order, and the Board of Immigration Appeals (BIA)
affirmed on January 18, 2013. The BIA determined that the IJ “did not commit clear error in his
adverse credibility finding.” The BIA noted the inconsistencies in Hih’s asylum applications

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about his employment with the Palestinian Authority and stated that these inconsistencies went
to the heart of the claim. The BIA thus upheld the adverse credibility determination and found
no reversible error in the IJ’s decision to deny the applications for asylum and related relief.
However, the BIA found the IJ’s advisals regarding voluntary departure to be deficient
and remanded the case to the IJ to provide the appropriate advisals. The BIA stated that the
record contained no timely proof that Hih paid the voluntary departure bond. The BIA found
that the IJ had not advised Hih of the obligation to submit such proof and the penalties that arise
when such proof is not submitted. Instead of reversing the IJ’s grant of voluntary departure for
want of such proof, the BIA dismissed Hih’s appeal of the IJ’s removal order and remanded the
record “to allow the [IJ] the opportunity to provide [Hih] with the proper voluntary departure
advisals.”
On remand at a March 13, 2013 hearing, Hih attempted to supplement the record by
offering additional evidence, but the IJ did not admit the evidence as exhibits. Hih also withdrew
his request for voluntary departure. The IJ therefore ordered Hih removed from the United
States. The IJ was unsure whether Hih could appeal this order to the BIA, and the IJ explicitly
stated that he could not tell Hih that he had a right to appeal the order. Hih appealed the March
13, 2013 order to the BIA on April 4, 2013.
The BIA issued an order on April 3, 2015 that treated Hih’s appeal as a motion to
reconsider the BIA’s previous decision and denied the motion to reconsider. The BIA stated:
[Hih] classifies his current filing before the Board as an appeal. However, [Hih]
has not identified any error in the [IJ]’s latest decision ordering his removal to
Israel and the occupied territories. Rather, [Hih] argues in his current appeal brief
that the Board erred in its January 18, 2013, decision by failing to address the
corroborating evidence provided by [Hih] at his 2010 merits hearing in support of
his asylum claim. . . . In light of the issues raised by [Hih] in his appeal brief, we
find it appropriate to construe the current filing before the Board as a motion to
reconsider.
The BIA stated that under 8 C.F.R. § 1003.2(b)(2), such a motion must be filed “within 30 days
of the date of entry of a final administrative order of removal,” and that there were no exceptions
to this requirement. The BIA found that its final administrative order was issued on January 18,

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2013, and that Hih filed his motion to reconsider on April 8, 2013. Thus, the BIA denied Hih’s
motion to reconsider because the motion fell outside of the 30-day window provided by
§ 1003.2(b)(2).
Hih petitions this court for review. In his petition, he argues that the BIA failed to review
adequately the corroborating evidence contained in the record. Hih further argues that he has
met his burden of proof with regard to his asylum application. Because Hih’s arguments concern
only the January 18, 2013 BIA decision, because that decision was “final” for the purposes of
review, and because Hih was required to file his appeal within 30 days of the BIA’s final order,
this court lacks jurisdiction to review the decision. To the extent Hih challenges the BIA’s April
2015 decision to deny reconsideration, he waived any challenges by failing to raise them in his
opening brief.
This court lacks jurisdiction to review the BIA’s 2013 order. The BIA affirmed the IJ’s
denial of Hih’s application for asylum and related relief on January 18, 2013. Accordingly, Hih
was subject to a removal order on that date. The only element of the case that the BIA remanded
to the IJ concerned voluntary departure. Thus, the BIA’s January 18, 2013 order was “final” for
the purposes of 8 U.S.C. § 1252(b)(1), and Hih had 30 days to file a petition for review of that
decision with this court.

Giraldo v. Holder, 654 F.3d 609 (6th Cir. 2011), supports this

conclusion. In Giraldo, the BIA had reversed the IJ’s grant of withholding of removal. Id. at
610. The BIA had remanded the record, however, “for the sole purpose of allowing [Petitioners]
to apply for voluntary departure.” Id. (alteration in original) (internal quotation marks omitted).
Although the BIA had remanded the record for a voluntary departure hearing, the removal order
was “final” for the purposes of appellate review. Id. at 614. The court stated that “because the
IJ’s decision regarding voluntary departure is not subject to judicial review, the BIA’s order
reversing the IJ’s grant of withholding of removal is, in effect, a ‘final order.’” Id. Giraldo was
in the context of § 1252.

Id. at 612.

Furthermore, § 1252’s statutory deadline is “both

mandatory and jurisdictional.” Prekaj v. I.N.S., 384 F.3d 265, 267 (6th Cir. 2004). Because Hih
filed his petition for review in 2015, which was well outside of the 30-day window of the
jurisdictional statute, this court lacks jurisdiction to review the BIA’s 2013 decision.

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Our conclusion is consistent with that of a recent, analogous Tenth Circuit case. In
Batubara v. Holder, 733 F.3d 1040 (10th Cir. 2013), the IJ had denied the petitioners’
applications for asylum and related relief. Id. at 1041. On appeal, the BIA had upheld the IJ’s
denial of asylum and related relief, and dismissed the appeal. Id. The subsequent facts of
Batubara are nearly identical to the present case:
The BIA then noted the record did not show if petitioners had timely posted the
voluntary-departure bond, or if the IJ had advised petitioners they were required
to submit proof of having posted this bond, as required by 8 C.F.R. §
1240.26(c)(3). Thus, the BIA remanded for the IJ to provide all advisals that
were required when he granted voluntary departure. . . . On remand, petitioners
withdrew their requests for voluntary departure.
Id. Only after the petitioners withdrew their requests for voluntary departure did they file their
petition for review of the BIA’s year-old decision. Id. The Tenth Circuit held that the year-old
BIA decision, which affirmed the IJ’s denial of asylum and related relief but also remanded the
record for voluntary-departure advisals, was “final” for the purposes of the time limitation in 8
U.S.C. § 1252(b)(1). Id. at 1042. Because the petitioners failed to file their petition within the
30-day window of the earlier BIA ruling, the Tenth Circuit held that it “lack[ed] jurisdiction over
th[e] petition.” Id. at 1043. Batubara is materially identical to the present case.
Hih argues that Giraldo actually compels a result in his favor, but that argument is
without merit. Giraldo held that the BIA removal denial in that case was final notwithstanding a
remand to permit an application for voluntary departure, where the IJ had not yet granted
voluntary departure.

“Having concluded that we have jurisdiction,” the Giraldo court

“nonetheless decline[d] to exercise that jurisdiction for prudential reasons.” 654 F.3d at 616.
The Giraldo court accordingly dismissed the timely petition “without prejudice,” after noting
that if the petitioners are granted voluntary departure on remand, they can “file a petition for
judicial review of their application for withholding of removal.” Id. at 618. The idea is that, in
dismissing the timely petition for review “without prejudice,” the court must have contemplated
a later petition for review, and that such a later petition obviously could not be filed within
30 days of the original BIA decision, a date already long passed. The difficulty with this
argument is that the Giraldo court had jurisdiction in the first place by virtue of the original
timely petition for review, whereas in this case there has never been such jurisdiction.

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The Giraldo court was concerned that by exercising jurisdiction before the IJ determined
the petitioner’s eligibility for voluntary departure, the court would be permitting the petitioner to
circumvent a new regulation which sought to limit the ability of petitioners to seek both
voluntary departure and judicial review, rather than choose between the two. Id. In dismissing
without prejudice for prudential reasons, the Giraldo court followed the same course as the First
Circuit in Hakim v. Holder, 611 F.3d 73, 79 (1st Cir. 2010), on indistinguishable facts. Our
decision to this effect has since been the subject of some criticism. As the Seventh Circuit
reasoned:
We are less comfortable, however, with the notion that a court ought to dismiss a
properly filed petition without prejudice and invite a later filing after the
voluntary departure terms are sorted out. . . . In our view, the proper approach is
for the alien to file her petition for review within 30 days of a Board order
resolving everything except voluntary departure, and then for this court to retain
jurisdiction but to stay proceedings on the petition until voluntary departure has
been resolved one way or the other.
Almutairi v. Holder, 722 F.3d 996, 1002 (7th Cir. 2013). While this may, in retrospect, have
been a preferable way for the Giraldo court to rule, we are bound by Giraldo’s published holding
that the court had the power to dismiss without prejudice a timely filed petition from a final
removal order that includes a remand for voluntary departure purposes. In other words, the
holding of Giraldo would preclude us from refusing to dismiss without prejudice in such a case
on the grounds that we lack the power to do so.1 But nothing in Giraldo requires a dismissal
without prejudice for prudential reasons; some discretion is inherent in the very idea of prudence.
Different circumstances might militate against such a course of proceeding. For instance, in
Hih’s case, the IJ had granted voluntary departure and the remand was for the purpose only of
giving the proper advisals. In the Giraldo and Hakim cases, in contrast, the IJ had not yet
granted voluntary departure, and the courts relied on this fact. See Giraldo, 654 F.3d at 618;
Hakim, 611 F.3d at 79.

1

In any future case relying on Giraldo to dismiss without prejudice a timely petition to review a final order
of removal, it would be useful for the court to indicate with precision the appropriate procedure and applicable time
limits for returning to the court of appeals.

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To hold that there is jurisdiction in the instant case, moreover, would go a step even
further than requiring a dismissal without prejudice. We would have to create a fiction that a
timely petition had been filed and that the court dismissed without prejudice, when nothing of the
sort occurred. This takes a holding that the court has some discretionary power to permit a late
petition, beyond a holding that the court is required to use the power to permit such a late
petition, to a holding that such a late petition is permitted even when the court did not ever
previously have the case properly before it. This is too far to stretch the already questionable
holding in Giraldo. In all of these cited cases the petitioner sought review of the original final
order of removal within 30 days; in the present case the petitioner did not. That deprives us of
jurisdiction to review the BIA’s 2013 order.
Although the court has jurisdiction to review a challenge to the BIA’s 2015 order,
construed as a denial of a motion for reconsideration, Hih has abandoned any such a challenge.
In his opening brief, Hih makes two main arguments: (1) the BIA failed to consider
corroborating evidence, and (2) the corroborating evidence satisfies Hih’s burden of proof for
asylum. These arguments pertain to the removal issues, which were last decided by the BIA in
its January 18, 2013 order. Neither of these arguments applies to the operative determination in
the BIA’s 2015 decision that the appeal was untimely because a reconsideration motion must be
filed within 30 days. An appellant abandons issues not raised and argued in his initial brief on
appeal. See United States v. Johnson, 440 F.3d 832, 845–46 (6th Cir. 2006). Because Hih failed
to challenge that aspect of the BIA’s 2015 decision in his opening brief, he has abandoned any
such challenge.
The petition for review is accordingly dismissed.