United States Court of Appeals
For the First Circuit
No. 08-2213
JAMAL MAKIEH,
Petitioner,
v.
ERIC H. HOLDER, JR.,* ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Ebel** and Lipez, Circuit Judges.
Ilana Etkin Greenstein, Jeremiah Friedman, Maureen O’Sullivan,
Harvey Kaplan, and Jeanette Kain on brief for petitioner.
Michael H. Hertz, Acting Assistant Attorney General, and
Michelle Gorden Latour and Timothy G. Hayes, Office of Immigration
Litigation, on brief for respondent.
July 14, 2009
*
Pursuant to Fed. R. App. P. 43(c)(2), Eric H. Holder, Jr., is
substituted for former Attorney General Michael B. Mukasey as the
Respondent herein.
**
Of the Tenth Circuit, sitting by designation
EBEL, Circuit Judge. Jamal Makieh (“Makieh”) petitions
for review of the decision of the Board of Immigration Appeals
(“BIA” or “the agency”) dismissing his appeal. The BIA adopted and
affirmed the oral decision of the Immigration Judge (“IJ”), who
denied Makieh’s application for asylum, withholding of removal, and
protection under the Convention Against Torture (“CAT”). Because
we lack jurisdiction to consider Makieh’s challenge as to the
asylum issue, and because the IJ’s decision denying withholding of
removal and CAT protection was supported by substantial evidence on
the record as a whole, we DISMISS the petition for review in part
and DENY it in part.
I. FACTUAL AND PROCEDURAL BACKGROUND
Makieh, a Syrian citizen, was born and grew up in
Latakia, Syria. Latakia is also home to the family of Syria’s
president, Bashar al-Asad, whom the State Department’s Country
Report on Human Rights Practices for 2005 described as
“authoritarian.” While Makieh is fearful of the president’s family
and of the Islamic extremism on the rise in his home country,
neither he nor any member of his family has ever been harmed by the
Syrian government or by anyone else in Syria. In the 1980s,
Makieh’s brother, Mohammed, and father, Ahmad, came to the United
States. Both subsequently became U.S. citizens. Makieh’s mother
and sisters continue to live in Syria; Makieh testified before the
immigration court that they do not face any threat of harm–or
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actual harm–there because “they live a simple life away from
people, just family.”
In October of 1992, when Makieh was twenty-one years old
and facing conscription into the Syrian military, he entered the
United States on a non-immigrant (F-1) student visa. That visa
authorized him to remain in this country for “duration of status,”
or “D/S,” which meant “the time during which [Makieh] [wa]s
pursuing a full course of study at an educational institution
approved” originally by the Immigration and Naturalization Service
(“INS”), and later by the Department of Homeland Security (“DHS”),1
8 C.F.R. § 214.2(f)(5)(i). Makieh never enrolled in the
educational program for which he had been approved.
Remaining in the United States without permission, Makieh
lived with his brother and father. In July of 2000, Makieh’s
father, who by then had attained permanent resident status through
his son Mohammed, filed an I-130 Immigrant Petition for Relative
(the “visa petition”) on Makieh’s behalf. Pursuant to 8 U.S.C.
§ 1153(a)(2)(B), the visa petition named Makieh as the unmarried
adult son of a permanent resident. If granted, the visa petition
would have made Makieh eligible to apply for adjustment of his
residency status to that of lawful permanent resident. See Taing
1
The functions of the INS were transferred to DHS on March 1,
2003. See United States v. Earle, 488 F.3d 537, 539 n.1 (1st Cir.
2007).
-3-
v. Napolitano, 567 F.3d 19, 21 (1st Cir. 2009); see also 8 U.S.C.
§ 1255; 8 C.F.R. § 245.1.
On January 30, 2003, the INS initiated removal
proceedings against Makieh. Just over six months later, Makieh
married a U.S. citizen, and in June of 2004, she filed a visa
petition on his behalf. Before that petition could be adjudicated,
however, the couple formally separated, and they divorced in
December of 2005. Makieh’s marriage also voided the earlier visa
petition filed by his father, because the marriage rendered Makieh
ineligible, under the Immigration and Naturalization Act (“INA”),
for consideration as an unmarried adult son of a permanent
resident, 8 U.S.C. § 1101(a)(39). Following Makieh’s divorce,
Ahmad Makieh filed a second visa petition for Makieh as his
unmarried adult son.
Just before his divorce, in October of 2005, Makieh had
filed an application for asylum and for withholding of removal,
cancellation of removal, and protection under the CAT. At his
final hearing before the IJ on the merits of this application,
Makieh testified that he had come to the United States to be with
his brother and father, and to embrace American freedom and
democracy. He also testified, in broad terms, as to his fear of
the Syrian government as motivating him to come to the United
States. Makieh further testified that he became truly afraid of
returning to Syria after the events of September 11, 2001, and the
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U.S. invasions of Iraq and Afghanistan that followed. The
administrative record includes evidence of an increase, since those
invasions, in violence perpetrated by Syrian extremists against
American interests. That violence included the bombing of the
American embassy in Damascus the month prior to Makieh’s final
hearing in immigration court.
According to Makieh, because he has spent his “adult
life” in the United States, Syrians–especially Islamic
extremists–will see him as being “like Americans,” and thus “like
a traitor or something.” As a result, he fears for his safety and
believes he will be tortured if he returns to Syria. However,
Makieh’s father, an American citizen, returns to Syria on a regular
basis for holy days; he generally spends several months at a time
there before returning to the United States. Ahmad Makieh has
never been harmed by the Syrian government or by Islamic
extremists. Makieh’s brother, also an American citizen, likewise
has returned to Syria on a number of occasions and has not been
harmed. Makieh himself has not returned to Syria since he left in
1992. Finally, Makieh, his father, and his brother all testified
or averred that Ahmad Makieh would suffer extraordinary hardship if
Makieh were removed to Syria, because Makieh is the principal
caregiver for his father.
The IJ ruled on Makieh’s application in an oral decision
handed down on October 24, 2006. The IJ first denied the
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application for asylum as untimely, ruling that Makieh failed to
file his application within the one-year period, starting from the
date of arrival in the United States, mandated by the INA, 8 U.S.C.
§ 1158(a)(2)(B). The IJ explained that Makieh was not eligible for
consideration of an untimely application because (1) even if the
court accepted his contention that changed circumstances in Syria
materially affected his eligibility for asylum, Makieh failed to
file his application within a reasonable time after learning of
those changed circumstances; and (2) Makieh failed to show any
other extraordinary circumstances that would justify untimely
filing. See 8 U.S.C. § 1158(a)(2)(D).
The IJ went on to deny Makieh’s application for
withholding of removal and for protection under the CAT, finding
that Makieh failed to demonstrate a “clear probability”–i.e., that
it is more likely than not–that he would be persecuted on the basis
of one of five statutorily enumerated grounds,2 or that he would be
tortured. See 8 U.S.C. § 1231(b)(3)(A) (withholding of removal);
8 C.F.R. § 208.16(b) (same); id. §§ 208.16(c), 208.18 (implementing
the CAT); Castillo-Diaz v. Holder, 562 F.3d 23, 27 (1st Cir.
2009)(reciting “clear probability” standard for withholding of
2
Those five grounds are “the alien’s race, religion,
nationality, membership in a particular social group, or political
opinion.” 8 U.S.C. § 1231(b)(3)(A).
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removal); Sulaiman v. Gonzales, 429 F.3d 347, 351 (1st Cir. 2005)
(applying same standard for protection under the CAT).3
On Makieh’s appeal, the BIA adopted and affirmed the IJ’s
decision in full, summarizing the decision and adding the
observation that Makieh’s alleged unawareness of the availability
of asylum did “not qualify for an exception to the 1-year filing
deadline” for asylum applications. The BIA dismissed the appeal on
August 21, 2008, and Makieh timely filed his petition for review
before this Court.
Makieh seeks review of the following: (1) the IJ’s
alleged failure to consider his argument that he is eligible to
have his untimely application for asylum considered on the merits
because his reliance on his father’s and wife’s petitions for visas
on his behalf constituted an extraordinary circumstance; and (2)
the IJ’s determination that it is not more likely than not that
Makieh would be persecuted or tortured if he were removed to Syria.
3
The IJ went on to deny the application for cancellation of
removal, see 8 U.S.C. § 1229b(b), finding that Makieh’s removal
would not create an exceptional and unusual hardship on his elderly
father. Under the REAL ID Act, 8 U.S.C. § 1252(a)(2)(B), (D), we
lack jurisdiction to review the IJ’s or BIA’s discretionary
decision to deny cancellation of removal, unless the petitioner
raises a colorable constitutional claim or question of law. See
Elysee v. Gonzales, 437 F.3d 221, 223 (1st Cir. 2006); Bencosme de
Rodriguez v. Gonzales, 433 F.3d 163, 164 (1st Cir. 2005) (per
curiam). Makieh does not seek review of the denial of his
application for cancellation of removal.
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II. DISCUSSION
A. Scope and standard of review
In relevant part, § 1252(b)(4) mandates that
(A) the court of appeals shall decide the petition only
on the administrative record on which the order of
removal is based, [and]
(B) the administrative findings of fact are conclusive
unless any reasonable adjudicator would be
compelled to conclude to the contrary . . . .
8 U.S.C. § 1252(b)(4). Consistent with the statutory mandate,
“[w]e review the BIA’s [or IJ’s] findings of fact under the
deferential substantial evidence standard.” Scatambuli v. Holder,
558 F.3d 53, 58 (1st Cir. 2009). Under this standard, we will
reverse the BIA’s decision “only if a ‘reasonable adjudicator would
be compelled to conclude to the contrary.’” Castillo-Diaz, 562
F.3d at 26 (quoting 8 U.S.C. § 1252(b)(4)(B)). This means that we
will uphold the decision if it is “supported by reasonable,
substantial, and probative evidence on the record considered as a
whole.” Id. (quotation omitted). We review questions of law de
novo. Id.
When, as in this case, the BIA “adopts the IJ’s opinion
and discusses some of the bases for the IJ’s decision, we have
authority to review both the IJ’s and the BIA’s opinions.”
Scatambuli, 558 F.3d at 58 (quotation omitted). Within that
review, we should “judge the action of the BIA based only on
reasoning provided by the agency, not on grounds constructed by the
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reviewing court.” Mihaylov v. Ashcroft, 379 F.3d 15, 21 (1st Cir.
2004) (quotation, alteration omitted). As a result, “we will
remand if the agency fails to state with sufficient particularity
. . . legally sufficient reasons for its decision.” Id. (quotation
omitted).
B. Whether this court has jurisdiction to review the BIA’s
denial of Makieh’s asylum application as untimely
Under 8 U.S.C. § 1158(a)(3), we lack jurisdiction to
review the agency's determination that Makieh failed to show
extraordinary circumstances that could excuse the untimeliness of
his asylum application under § 1158(a)(2)(D). The REAL ID Act
provides an exception under which we do retain jurisdiction to
review constitutional claims or questions of law. 8 U.S.C.
§ 1252(a)(2)(D). However, the agency's determinations as to
timeliness and changed or extraordinary circumstances "are usually
factual determinations outside the court's jurisdiction." Odmar v.
Mukasey, 294 F. App'x 611, 613 (1st Cir. 2008) (unpublished)
(citing Hayek v. Gonzales, 445 F.3d 501, 506-07 (1st Cir. 2006)).
To overcome § 1158(a)(3)’s jurisdictional bar, Makieh
must “identif[y] a legal or constitutional defect in the [agency’s]
decision.” El-Labaki v. Mukasey, 544 F.3d 1, 5 (1st Cir. 2008).
"To trigger our jurisdiction, the putative constitutional or legal
challenge . . . must be colorable; that is, the argument advanced
must, at the very least, have some potential validity." Pan v.
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Gonzales, 489 F.3d 80, 84 (1st Cir. 2007); see also De Araujo v.
Gonzales, 457 F.3d 146, 154 (1st Cir. 2006).
1. Timing of asylum applications
An alien applying for asylum must “demonstrate[] by clear
and convincing evidence that the application has been filed within
1 year after the date of the alien’s arrival in the United States”
or by April 1, 1997, whichever is later. 8 U.S.C. § 1158(a)(2)(B);
8 C.F.R. § 1208.4(a)(2). However,
[a]n application for asylum of an alien may be
considered, notwithstanding [the one-year limitations
period], if the alien demonstrates to the satisfaction of
the Attorney General either the existence of changed
circumstances which materially affect the applicant’s
eligibility for asylum or extraordinary circumstances
relating to the delay in filing an application within the
[statutory] period.
8 U.S.C. § 1158(a)(2)(D). An applicant attempting to demonstrate
changed or extraordinary circumstances must also demonstrate that
he “filed the application ‘within a reasonable period’ given those
circumstances.” Oroh v. Holder, 561 F.3d 62, 66 (1st Cir. 2009)
(quoting 8 C.F.R. § 1208.4(a)(4), (5)).
2. Makieh’s petition for review
Before the IJ and BIA, Makieh argued both changed and
extraordinary circumstances as reasons he should be eligible for
consideration of his untimely filed application for asylum. The IJ
determined that even if Makieh were correct that circumstances in
Syria changed due to a rise in Islamic fundamentalism after
September 11, 2001, Makieh’s 2004 application still was not
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“file[d] within a reasonable time given those changed
circumstances.” Makieh does not challenge that determination in
his petition for review.
Makieh also argued before the agency, and argues in his
petition for review, that his mistaken reliance on his father’s and
wife’s visa petitions constituted an extraordinary circumstance
that should make him eligible for consideration of an untimely
filed application. Makieh urges that we have jurisdiction to
review the IJ’s and BIA’s decisions as to this issue because the
agency committed constitutional and legal error by not considering
this argument regarding his reliance on the visa petitions.
According to Makieh, the IJ and BIA violated his right to due
process by failing to “actually adjudicate every claim which he
present[ed].”
3. Analysis
Makieh fails to state a colorable constitutional claim or
question of law. See De Araujo, 457 F.3d at 154-55. In his oral
decision, the IJ said explicitly that Makieh “has stated that the
reason . . . he waited [to file the asylum application] w[a]s
th[at] in addition to the withdrawn visa petition by his U.S.
citizen wife, sometime in 2003, also, the fact that his father had
earlier submitted a visa petition for him in the year 2000.”
Having concluded that Makieh did not timely file his application
after learning of the changed conditions in Syria after September
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11, the IJ went on to make the explicit finding that “[n]o other
extraordinary circumstances have been shown in this case, and the
Court, thus, finds that [Makieh] is barred from asylum under [INA]
Section 208(a)(2)(B).” (Id. at 64.)
As his oral decision makes abundantly clear, the IJ did,
indeed, consider Makieh’s argument as to his reliance on the visa
petitions. He also made an explicit finding that the evidence
Makieh presented failed to demonstrate “extraordinary
circumstances,” where Makieh had attempted to characterize his
reliance on the visa petitions precisely as an extraordinary
circumstance warranting an exception to the timeliness requirement.
Furthermore, even if the IJ could have been more exact in linking
his finding of no extraordinary circumstances with his
acknowledgment of Makieh’s argument as to the visa petitions, we
have made clear that “‘[a]lthough we expect an immigration judge to
make findings on all grounds that are necessary to support his
decision, those findings can be either explicit or implicit.’”
Pulisir v. Mukasey, 524 F.3d 302, 308 (1st Cir. 2008) (quoting
Rotinsulu v. Mukasey, 515 F.3d 68, 72-73 (1st Cir. 2008) in
parenthetical). Here, even if we were to conclude that the IJ did
not make an explicit finding as to the “extraordinary
circumstances” argument, we certainly would conclude that he made
an implicit finding in that regard.
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Nothing in the record suggests that the agency failed to
consider Makieh’s argument with respect to his reliance on the visa
petitions, much less that it committed constitutional error in this
regard. See Jamal v. Mukasey, 531 F.3d 60, 65-66 (1st Cir. 2008).
4. Conclusion as to Makieh’s application for asylum
Makieh’s petition for review of the denial of his
application for asylum does not present any colorable
constitutional claims or questions of law. Consequently, we lack
jurisdiction to consider this element of the petition for review.
C. Whether the BIA’s denial of Makieh’s application for
withholding of removal and for protection under the CAT
is supported by substantial evidence on the record as a
whole
1. Statutory standards for withholding of removal and
CAT protection
“Withholding of removal is available if ‘the alien’s life
or freedom would be threatened in the destination country because
of the alien’s race, religion, nationality, membership in a
particular social group, or political opinion.’” Sompotan v.
Mukasey, 533 F.3d 63, 68 (1st Cir. 2008) (quoting 8 U.S.C.
§ 1231(b)(3)(A); alteration omitted). An applicant for withholding
of removal may carry his burden of demonstrating this threat to his
life or freedom “by demonstrating past persecution, which gives
rise to a rebuttable presumption of future persecution, or by
showing that it is ‘more likely than not’ that [he] will face
future persecution based on one of the [five] statutory grounds.”
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Limani v. Mukasey, 538 F.3d 25, 31 (1st Cir. 2008) (citing 8 C.F.R.
§ 208.16(b)(1)(i), (b)(2)). “Persecution,” in turn, means
“mistreatment that extends beyond harassment, unpleasantness, and
basic suffering.” Sompotan, 533 F.3d at 68 (quotation, alterations
omitted). Finally, “it is critical that the petitioner[] show a
nexus between the alleged persecution and one of the statutorily
protected grounds.” Id. (quotation omitted). Establishing that
nexus requires a demonstration that “it is reasonable to believe
that the harm was motivated by a protected ground.” Id. (quotation
omitted).
To qualify for protection from removal under the CAT, “an
applicant must establish that it is ‘more likely than not that he
would be tortured if removed’” to the country at issue. Khan v.
Mukasey, 549 F.3d 573, 575 n.2 (1st Cir. 2008) (quoting Limani, 538
F.3d at 32; alterations omitted); 8 C.F.R. § 208.16(c)(2).
“‘Torture’ means ‘severe pain or suffering, whether physical or
mental . . . inflicted by or at the instigation of or with the
consent or acquiescence of a public official or other person acting
in an official capacity.’” Limani, 538 F.3d at 32 (quoting 8
C.F.R. § 208.18(a)(1)).
2. The IJ’s and BIA’s decisions and the whole
administrative record
The IJ determined that Makieh failed to meet his burden
of establishing that it was more likely than not that he would be
either persecuted or tortured if he were removed to Syria. The IJ
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explained that no harm had ever come to Makieh while he was growing
up in Syria, that his American-citizen father travels to and from
Syria without difficulty or harm, and that Makieh’s “contention
that he has lived in this country and thus, is fearful of returning
does not demonstrate a clear probability that he would be
persecuted.”
Having carefully reviewed the entire administrative
record on which the IJ and BIA based their decisions, we are
satisfied that those decisions are amply “supported by reasonable,
substantial, and probative evidence on the record considered as a
whole.” Castillo-Diaz, 562 F.3d at 26. While the record does
contain documents substantiating the recent growth of Islamic
radicalism in Syria, those documents–for instance, the Travel
Warning issued by the U.S. State Department following the September
12, 2006, bombing of the embassy in Damascus–specifically point to
dangers to “Americans” and “American interests.” The
administrative record simply does not support Makieh’s claim that
he would more likely than not be persecuted because he is a Syrian
who has lived in the United States for seventeen years, nor his
claim that he more likely than not would be tortured if he were to
return to Syria.
3. Conclusion as to Makieh’s application for
withholding of removal and for CAT protection
“That the record supports a conclusion contrary to that
reached by the [IJ and BIA] is not enough to warrant upsetting the
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[agency’s] view of the matter; for that to occur, the record must
compel the contrary conclusion.” Sompotan, 533 F.3d at 68
(quotation omitted). In this case, the administrative record does
not even support a conclusion contrary to that reached by the
agency, much less compel a contrary conclusion. Therefore, we DENY
Makieh’s petition for review of the agency’s denial of his
application for withholding of removal and for protection under the
CAT.
III. CONCLUSION
Because we lack jurisdiction to review the BIA’s denial
of Makieh’s application for asylum, and because the agency’s denial
of his application for withholding of removal and for protection
under the CAT is supported by substantial evidence on the
administrative record as a whole, we DISMISS Makieh’s petition for
review in part and DENY it in part.
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