United States Court of Appeals
For the First Circuit
No. 09-1692
JOHANNES HAKIM,
Petitioner,
v.
ERIC H. HOLDER, JR.,
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Circuit Judge,
Souter,* Associate Justice,
and Stahl, Circuit Judge.
Randall A. Drew, with whom Wiggin & Nourie, P.A., were on
brief for petitioner.
Greg D. Mack, Senior Litigation Counsel, U.S. Department of
Justice, Civil Division, Office of Immigration Litigation, with
whom Tony West, Assistant Attorney General, Civil Division, and
Terri J. Scadron, Assistant Director, were on brief for respondent.
July 9, 2010
*
The Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
TORRUELLA, Circuit Judge. Johannes Hakim ("Hakim") seeks
review of the decision of the Board of Immigration Appeals ("BIA")
reversing the grant of applications for asylum under Section 208 of
the Immigration and Nationality Act ("INA") and for withholding of
removal under Section 241(b)(3) of the INA. Hakim contends that
the BIA erred when it determined that evidence of mistreatment he
experienced in his native Indonesia failed to rise to the level of
persecution within the meaning of the immigration laws. The
government counters that we lack jurisdiction because we have not
been presented with a final order of removal, and, in the
alternative, that the Attorney General's issuance of a final rule
on voluntary departure militates in favor of not finding a final
order of removal. After careful consideration, we decline for
prudential reasons to exercise jurisdiction in this case. Hakim's
petition is thus dismissed without prejudice.
I. Background
A. Facts1
Hakim is an Indonesian citizen of Chinese ethnicity and
Christian faith. In February of 1996, Hakim, who was fourteen
years old at the time, was attacked by "a group of people" who
identified him as Chinese and robbed him. One of the men struck
Hakim with a block of wood, breaking his hand. Neither he nor his
1
These facts are drawn from the petitioner's testimony before the
Immigration Judge ("IJ"), which the IJ deemed "convincing[]." See
Decky v. Holder, 587 F.3d 104, 107 n.2 (1st Cir. 2009).
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parents reported the incident to the police, considering it a
"waste" to file a report because the police would see that they
were Chinese and would probably then ask them for money. Although
Hakim testified as to other events, the February 1996 incident was,
according to him, "the worst thing that happened" to him.
Hakim left Indonesia in 2001 and, the following year,
applied for asylum, withholding of removal, and protection under
the Convention Against Torture ("CAT").
B. Procedural History
Hakim left Indonesia on September 26, 2001. The next day
he was admitted to the United States as a nonimmigrant B2 Visitor
for Pleasure with authorization to remain in the United States for
a temporary period not to exceed March 24, 2002. He overstayed,
and on September 24, 2002, Hakim submitted applications for asylum,
withholding of removal, and protection under the CAT to the
Immigration and Naturalization Service ("INS"). Hakim's
application was referred to the Immigration Court in Boston,
Massachusetts.
On August 5, 2004, the Department of Homeland Security
("DHS") commenced removal proceedings against Hakim by filing a
Notice to Appear ("NTA") with the Immigration Court alleging he had
remained in the United States after March 24, 2002, without
authorization, and was subject to removal. See 8 U.S.C.
§ 1227(a)(1)(B). Hakim admitted the allegations contained in the
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NTA, conceded that he was removable, and renewed his requests for
asylum, withholding of removal, and protection under the CAT.
Hakim testified before the IJ on August 3, 2006, and, on
February 5, 2007, the IJ issued a decision granting his
applications for asylum and withholding of removal. The IJ
concluded that the evidence presented by Hakim warranted a finding
that he suffered past persecution in Indonesia. Given the finding
of past persecution and the DHS's inability to provide evidence
that conditions in Indonesia had changed, the IJ held that the
government had failed to meet its burden of proving that Hakim's
fears of future persecution were not well-founded. See 8 C.F.R.
§ 208.13(b)(1) (stating that once the applicant has demonstrated
past persecution, DHS has the burden of establishing by a
preponderance of the evidence either "a fundamental change in
circumstances" or the possibility of internal relocation).
However, because Hakim "failed to establish he would be detained
and subject to torture or that the government of Indonesia would
acquiesce in that harm being inflicted upon him[,]" the IJ denied
him protection under the CAT.
The government appealed to the BIA, which issued an
opinion on April 24, 2009, reversing the IJ's grant of applications
for asylum and for withholding of removal. The BIA rejected the
IJ's conclusion that Hakim had established that he was a victim of
past persecution. The BIA explained that the mistreatment
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inflicted on Hakim in the February 1996 robbery was
"reprehensible," but fell "outside the scope of the type of
mistreatment considered to be persecution," and that "the other
incidents of which he complained were [not] sufficiently severe,
either cumulatively or in isolation, [nor] sufficiently related to
an enumerated ground, to constitute persecution."2
Concluding that Hakim had failed to establish past
persecution, the BIA disagreed with the IJ's conclusion that he
should benefit from a presumption of future persecution. The BIA
found that Hakim "did not persuasively articulate any specific
basis on which he would be likely to be singled out for
persecution[,]" and there was insufficient evidence "to support a
conclusion that there is a pattern and practice of persecution
against Christians or ethnically Chinese individuals in Indonesia."
See also Decky, 587 F.3d at 113 ("We have repeatedly affirmed the
BIA's determinations . . . that there is no ongoing pattern or
practice of persecution against ethnic Chinese or Christians in
Indonesia.") (citation omitted). The BIA also held that Hakim
failed to present evidence demonstrating that he would not be able
to relocate to another part of Indonesia. Given these
2
In a claim for asylum, "the petitioner carries the burden of
proving that he qualifies as a refugee by showing either that he
has suffered past persecution or has a well-founded fear of future
persecution on the basis of 'race, religion, nationality,
membership in a particular social group, or political opinion.'"
Journal v. Keisler, 507 F.3d 9, 12 (1st Cir. 2007) (quoting 8
U.S.C. § 1101(a)(42)).
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determinations, the BIA concluded that Hakim failed to prove that
he should be granted asylum, and thus the more stringent
withholding of removal. As the IJ had not considered whether Hakim
was eligible for voluntary departure, the BIA remanded the case to
the IJ to make such a determination.
The IJ scheduled for January 14, 2010, a hearing to
determine Hakim's eligibility for voluntary departure. On
December 31, 2009, Hakim filed a motion for continuance before the
IJ, which was granted on January 5, 2010. The IJ thus rescheduled
the hearing date for July 22, 2010. Hakim currently seeks, in this
Court, reversal of the BIA's decision on the merits.
II. Discussion
A. Standard/Scope of Review
Pursuant to 8 U.S.C. § 1252(d), we have jurisdiction to
review final orders of removal only if both of the following
conditions are met. First, "the alien [must have] exhausted all
administrative remedies available to the alien as of right." 8
U.S.C. § 1252(d)(1); see De Araujo v. Gonzales, 457 F.3d 146, 152
(1st Cir. 2006) ("This exhaustion requirement generally means that
the BIA must first review an IJ's determination of [removability]
before a petitioner may present his appeal to us.") (citation
omitted). Second,
another court [cannot have] decided the
validity of the order, unless the reviewing
court finds that the petition presents grounds
that could not have been presented in the
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prior judicial proceedings or that the remedy
provided by the prior proceeding was
inadequate or ineffective to test the validity
of the order.
8 U.S.C. § 1252(d)(2). That is, we lack jurisdiction to consider
a petition raising arguments that a court has previously
"considered and rejected" in a prior proceeding. Paul v. United
States Dep't of Justice, 273 F. App'x 64, 65 (2d Cir. 2008); see
Gittens v. Menifee, 428 F.3d 382, 386 (2d Cir. 2005) (finding that
an alien's second petition for review would fail under § 1252(d)(2)
when "a federal court has already ruled on the merits of his . . .
argument").
The INA defines an "order of [removal]" as "the order of
the special inquiry officer, or other such administrative officer
to whom the Attorney General has delegated the responsibility for
determining whether an alien is [removable], concluding that the
alien is [removable] or ordering [removal]."3 8 U.S.C.
§ 1101(a)(47)(A) (emphasis added). Orders of removal become final
upon "(I) a determination by the [BIA] affirming such an order; or
(ii) the expiration of the period in which the alien is permitted
to seek review of such order by the [BIA,]" whichever is earlier.
8 U.S.C. § 1101(a)(47)(B).
3
See Calcano-Martínez v. INS, 533 U.S. 348, 350 n.1 (2001)(noting
that, in 1996, Congress passed the Illegal Immigration Reform and
Immigrant Responsibility Act, which replaced the term "deportation"
with "removal"). The definitions section of the INA has not been
revised to incorporate this change.
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Without directly addressing 8 U.S.C. § 1101(a)(47), Hakim
argues that the BIA's order remanding to the IJ to resolve the
question of voluntary departure constitutes a final order of
removal. He contends that, according to 8 U.S.C. § 1252(d)(1), we
have jurisdiction because he has exhausted all administrative
remedies in pursuit of his applications for asylum and withholding
of removal, and another court has not decided the validity of the
order. Furthermore, he contends that the only issue being
considered on remand by the IJ is his eligibility for voluntary
departure, not further review of his asylum or withholding of
removal applications. In support of his argument, Hakim relies on
a number of sister circuit cases, including Alibasic v. Mukasey, in
which the Second Circuit held that "a BIA order denying relief from
removal and remanding for the sole purpose of considering voluntary
departure is a final order of removal that this Court has
jurisdiction to review." 547 F.3d 78, 83-84 (2d Cir. 2008) ("The
IJ's underlying finding of removability based on [the alien's]
concessions [of removability] still stands and . . . the BIA has
simply removed an impediment to the removal that was ordered by the
IJ.") (internal quotation marks omitted); accord Saldarriaga v.
Gonzales, 402 F.3d 461, 466 n.2 (4th Cir. 2005) ("[A] BIA order
denying relief from deportation, but remanding the case for
voluntary departure proceedings or other subsidiary determinations"
is a final order of removal that is "immediately appealable."); Del
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Pilar v. U.S. Att'y Gen., 326 F.3d 1154, 1157 (11th Cir. 2003) (per
curiam) (finding that "the BIA's remand for the limited purpose of
permitting [petitioner] to designate a country of removal"
constituted a final order of removal); Castrejón-García v. INS, 60
F.3d 1359, 1361-62 (9th Cir. 1995) (finding that the BIA's order
reversing the grant of suspension and remanding to the IJ for a
determination of voluntary departure was a final order of removal);
Perkovic v. INS, 33 F.3d 616, 619 (6th Cir. 1994) ("We are aware of
no authority for the proposition that a [BIA] order rejecting an
asylum application is not a final order unless a formal order of
deportation has already been issued.").
Despite the IJ having awarded asylum and withholding of
removal to Hakim, the government argues that the IJ did not issue
an order of removal, but merely noted that Hakim had conceded that
he was removable. But see Chupina v. Holder, 570 F.3d 99, 104 (2d
Cir. 2009) ("[A]n award of withholding of removal requires entry of
an underlying 'order of removal.'") (citation omitted). The
government further argues that the Attorney General's issuance in
2008 of a final rule amending the regulation regarding voluntary
departure militates in favor of finding that the BIA did not issue
a final order of removal. See Voluntary Departure: Effect of a
Motion to Reopen or Reconsider or a Petition for Review, 73 Fed.
Reg. 76,927, 76,937 (Dec. 18, 2008) (to be codified at 8 C.F.R.
§§ 1240-1241, as relevant 1240.26(i)). Under that new voluntary
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departure regulation, effective as of January 20, 2009, "any grant
of voluntary departure shall terminate automatically upon the
filing of the petition [for review] and the alternate order of
removal[, which shall be entered upon granting a request made for
voluntary departure,] . . . shall immediately take effect." 8
C.F.R. § 1240.26(d), (i). The decisions of our sister circuits --
finding that a BIA order denying relief from removal and remanding
for voluntary departure is a final order of removal -- were issued
before this current voluntary departure regulation, and thus did
not take it into consideration.
B. Voluntary Departure
Voluntary departure is a discretionary form of relief.
Chi v. Holder, --- F.3d ---, 2010 WL 2089478 at *1 (1st Cir.
May 26, 2010). Voluntary departure is available (1) in lieu of or
prior to the completion of removal proceedings or (2) at the
conclusion of removal proceedings. 8 U.S.C. § 1229c(a)(1), (b)(1).
An IJ may grant voluntary departure at the conclusion of a removal
proceeding if she finds that: (i) "[t]he alien has been physically
present in the United States for [a] period of at least one year
preceding the date the [NTA] was served"; (ii) "[t]he alien is, and
has been, a person of good moral character for at least five years
immediately preceding the application"; (iii) "[t]he alien has not
been convicted of [an aggravated felony] and is not deportable [on
security grounds]"; and (iv) "[t]he alien has established by clear
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and convincing evidence that the alien has the means to depart the
United States and has the intention to do so." 8 C.F.R.
§ 1240.26(c)(1). The Supreme Court has described this relief as
an agreed-upon exchange of benefits, much like
a settlement agreement. In return for the
anticipated benefit, including the possibility
of readmission, an alien who requests
voluntary departure represents that he or she
"has the means to depart the United States and
intends to do so" promptly. Included among
the substantive burdens imposed upon the alien
when selecting voluntary departure is the
obligation to arrange for departure, and
actually depart, within the 60-day period.
Dada v. Mukasey, 554 U.S. 1, 32 (2008) (citations omitted).
The Supreme Court has not resolved the issue of whether
the federal courts of appeals have the authority to grant a motion
to stay the voluntary departure period pending consideration of a
petition for review on the merits. See id. at 18. Our circuit has
held that we have the authority "to suspend the running of an
unexpired voluntary departure period while a petition for judicial
review is pending[,]" Bocova v. Gonzales, 412 F.3d 257, 268 (1st
Cir. 2005), and while several of our sister circuits are in accord,
at least one disagrees. Compare Thapa v. Gonzales, 460 F.3d 323,
332 (2d Cir. 2006) (finding that the court may stay voluntary
departure pending consideration of a petition for review on the
merits), Obale v. Ashcroft, 453 F.3d 151, 157 (3d Cir. 2006)
(same), Lopez-Chavez v. Ashcroft, 383 F.3d 650, 654 (7th Cir. 2004)
(same), Rife v. Ashcroft, 374 F.3d 606, 616 (8th Cir. 2004) (same),
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Nwakanma v. Ashcroft, 352 F.3d 325, 427 (6th Cir. 2003) (same), and
Himri v. Ashcroft, 344 F.3d 1261, 1262 (9th Cir. 2003) (same), with
Ngarurih v. Ashcroft, 371 F.3d 182, 194 (4th Cir. 2006) (finding
that the court may not stay the voluntary departure period pending
consideration of a petition for review). In response to the
divergent federal practice and pursuant to 8 U.S.C. § 1229c(e), the
Attorney General subsequently issued a final rule on December 18,
2008. See Voluntary Departure: Effect of a Motion to Reopen or
Reconsider or a Petition for Review, 73 Fed. Reg. at 76,937-38.
That rule amended the voluntary departure regulation, which now, in
part, provides that a grant of voluntary departure on or after
January 20, 2009, automatically terminates with the filing of a
petition for review. 8 C.F.R. § 1240.26(i).
C. Analysis
Assuming arguendo that we have before us a final order of
removal,4 we still decline to exercise jurisdiction in this case
for prudential reasons. We thus need not address whether a BIA
order denying relief from removal and remanding for consideration
of voluntary departure is a final order of removal.
4
As discussed previously, a number of our sister circuits have
held that a BIA order denying relief from removal and remanding for
consideration of voluntary departure is a final order of removal.
See Alibasic, 547 F.3d at 83-84; Saldarriaga, 402 F.3d at 466 n.2;
Del Pilar, 326 F.3d at 1157; Castrejón-García, 60 F.3d at 1361-62;
Perkovic, 33 F.3d at 619.
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On its face, the current voluntary departure regulation
reflects the Attorney General's intention to limit a petitioner's
eligibility for voluntary departure where the petitioner has sought
judicial review, and to ensure uniformity in the administration of
the immigration laws. The current voluntary departure regulation
has thus altered the decision-making process for a petitioner
interested in seeking judicial review of her petition: as of
January 20, 2009, she must elect either voluntary departure or
judicial review of her petition.
The automatic termination provision of the current
regulation assumes a chronological order, i.e., that the grant of
voluntary departure precedes the filing of a petition for judicial
review. In the instant case, Hakim filed a petition for judicial
review before the IJ has been afforded the opportunity to determine
Hakim's eligibility for voluntary departure, and thus the
regulation does not directly address the case at hand. By
exercising jurisdiction in this case, we would be permitting Hakim
to circumvent the regulation by allowing him to seek both voluntary
departure and judicial review, thus hindering judicial economy and
denying the government the benefit of "a prompt and costless
departure." See Dada, 554 U.S. at 32-33. To prevent such a
result, we think it wiser, for prudential reasons, to remand the
case to the IJ so that she can decide whether to grant Hakim
voluntary departure. Cf. Liu v. United States Dep't of Justice,
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455 F.3d 106, 116-17 (2d Cir. 2006) (concluding that, "as a matter
of discretion," it was "prudent and useful" to remand to the BIA to
resolve a question of first impression). If Hakim is granted
voluntary departure, he can at that point decide whether to comply
with the relevant departure provisions, 8 U.S.C. § 1229c(b), or
else to file a petition for judicial review of his applications for
asylum and withholding of removal.
III. Conclusion
In sum, we will not review the merits of Hakim's claim
because we decline, for prudential reasons, to exercise
jurisdiction at this time. Accordingly, his petition seeking
review of the BIA's determination that he was not eligible for
asylum or withholding of removal is dismissed without prejudice.
Dismissed.
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