RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 09a0074p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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X
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HAMDI AL KHALILI,
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Petitioner,
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No. 08-3296
v.
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ERIC H. HOLDER, JR., Attorney General of the -
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Respondent. -
United States,
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N
On Petition for Review of a Decision from the
Board of Immigration Appeals.
No. A96 418 226.
Argued: January 15, 2009
Decided and Filed: February 27, 2009
Before: KENNEDY, COLE, and GILMAN, Circuit Judges.
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COUNSEL
ARGUED: Charles S. Owen, OWEN & ASSOCIATES, Southfield, Michigan, for
Petitioner. John W. Blakeley, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent. ON BRIEF: Charles S. Owen, OWEN &
ASSOCIATES, Southfield, Michigan, for Petitioner. John W. Blakeley, Aviva L. Poczter,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
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OPINION
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COLE, Circuit Judge. Petitioner Hamdi Al Khalili appeals the order by the Board
of Immigration Appeals (“BIA”) affirming the immigration judge’s final order of removal
to Jordan. The immigration judge rendered her decision on June 23, 2006, denying Khalili’s
application because he failed to establish his membership in a particular social group and
because he did not show that the Jordanian government was unwilling or unable to control
1
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the non-governmental actors who he alleged would seek to harm him. Khalili appealed to
the BIA. The BIA affirmed, concluding that Khalili had failed to demonstrate the inability
or unwillingness of his government to protect him.
Khalili now petitions for review of the BIA’s decision. He argues that the BIA’s
determination that he did not belong to a particular social group, such that he would face
persecution if he were forced to return to Jordan, was arbitrary and capricious. He also
argues that the BIA erred in finding that he had not established a prima facie case of
eligibility for asylum based on its reading of Jordan’s official stance on honor killings.
The Government argues that this Court lacks jurisdiction to consider Khalili’s claim
because he failed to exhaust his administrative remedies. In the alternative, the Government
argues that substantial evidence supports the BIA’s decision.
For the reasons set forth below, we find that BIA actions exhausted Khalili’s
administrative remedies by sua sponte raising and ruling on the immigration judge’s
determination regarding the Jordanian government. Thus, this Court has jurisdiction to
consider Khalili’s appeal of that issue. However, this Court also finds that substantial
evidence supports the BIA’s determination that Khalili failed to show that the Jordanian
government was unable or unwilling to protect him and his family. We therefore DENY
Khalili’s petition for review.
I. BACKGROUND
A. Factual background
Khalili, a citizen and native of Jordan, met his current wife, Deena, in Jordan in
1986. Despite resistance from her family, they married in August 1992. Before and after
the wedding, Deena’s family members showed their disapproval of the relationship by
beating Deena and by making false accusations against Khalili. Based, in part, on fear for
himself and his family, Khalili moved with his wife and two children to the United States in
September 1999.
While living in the United States, Khalili and Deena got into a disagreement relating
to Deena’s sister. Deena’s family became involved in the dispute, which ultimately led to
the couple’s divorce in August 2000. Though Khalili and Deena were both living in
No. 08-3296 Khalili v. Holder Page 3
Michigan at the time, the divorce was obtained under Jordanian law. Thereafter, Deena and
the children moved back to Jordan, where she alleges that her family mistreated her because
of the divorce.
Following the divorce, Khalili married his second wife in 2001. After a few months,
Khalili’s second wife took a trip to New Jersey, and he never saw her again. He
subsequently obtained a second divorce.
Meanwhile, as a result of the harsh treatment they received after returning to Jordan,
Deena and the children moved back to the United States in June 2003. Khalili renewed
contact with her, and they had a third child in May 2004. They remarried in May 2005.
B. Procedural background
Khalili was legally admitted to the United States as a nonimmigrant visitor on
September 19, 1999. The Immigration and Naturalization Service, now part of the United
States Department of Homeland Security, initiated removal proceedings against him by filing
a Notice to Appear, charging him with removability under section 237(a)(1)(B) of the
Immigration and Nationality Act (the “INA”), 8 U.S.C. § 1227(a)(1)(B), as an alien who
remained in the United States for a time longer than permitted.
At the removal hearing on October 1, 2004, Khalili conceded removability, but filed
an application for withholding of removal under section 241(b)(3). Alternatively, he
requested voluntary departure under section 240(B).
Khalili’s section 241(b)(3) application for withholding of removal claimed
persecution on account of his religion and membership in a particular social group. He
testified in support of that claim in removal hearings on June 19, 2006 and June 23, 2006.
Khalili and Deena testified that Deena’s family had previously attacked them and their
children and had also threatened them with future harm. Khalili testified he feared that, if
they returned to Jordan, he or his family might become victims of honor killings—the
murder of a family or clan member due to the belief that the individual has brought dishonor
on the family. Finally, Khalili testified that he did not believe the Jordanian government
could protect him because “usually they don’t interfere [with] honor things.” (Joint
Appendix 118.) In support of his arguments, Khalili offered marriage and divorce
No. 08-3296 Khalili v. Holder Page 4
certificates as well as two 2003 British Broadcast Corporation news articles related to honor
killings in Jordan. In response, the Government submitted the 2005 State Department
Country Report on Human Rights for Jordan.
On June 23, 2006, the immigration judge denied Khalili’s application for
withholding of removal. Despite finding Khalili’s testimony generally consistent and
credible, the immigration judge determined that Khalili was ineligible for withholding of
removal under the INA because he was unable to establish that he had been or would be
subject to persecution on account of any of the five statutorily enumerated grounds. Noting
that Khalili had claimed protection based on religion and on membership in a social
group—a group the immigration judge defined as males subject to honor killings—the
immigration judge found that Khalili’s ability to establish that he fit within a particular
social group was undermined by the lack of evidence showing that the cultural practice of
honor killing is extended to men. The immigration judge also found that Khalili had not
demonstrated that the Jordanian government would be unwilling or unable to protect him.
Finally, the immigration judge denied Khalili’s request for voluntary departure.
Khalili appealed to the BIA. The BIA denied that appeal on February 21, 2008,
stating that Khalili’s Notice of Appeal and briefs did not challenge the immigration judge’s
finding that he failed to show that the government of Jordan was unwilling or unable to
protect him. Despite Khalili’s failure to challenge that issue, the BIA nonetheless ruled on
it. The BIA relied on evidence showing that the Jordanian government prosecutes those
accused of honor killings. The BIA also determined that Khalili failed to present any
evidence that men, as opposed to women, were the subjects of honor killings. The BIA
reasoned that Khalili’s failure to show the inability or unwillingness of his government to
protect him was a sufficient basis for denying his application for withholding of removal, and
the BIA affirmed the immigration judge’s decision.
No. 08-3296 Khalili v. Holder Page 5
II. LAW AND ANALYSIS
A. Jurisdiction
1. Failure to present reviewable issues to the BIA
This Court generally has jurisdiction to consider a timely petition for review of a
BIA final order of removal under INA section 242, 8 U.S.C. § 1252(a)(1), as amended by
the REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231, 310-11 (2005). However,
before raising an immigration issue in federal court, a petitioner must normally present all
reviewable issues to the BIA. Sterkaj v. Gonzalez, 439 F.3d 273, 279 (6th Cir. 2006).
Specifically, 8 C.F.R. section 1003.3(b), the “Statement of basis of appeal” regulation,
requires:
The party taking the appeal must identify the reasons for the appeal in the
Notice of Appeal [to the BIA] (Form EOIR-26 or Form EOIR-29) or in any
attachments thereto, in order to avoid summary dismissal pursuant to
§ 1003.1(d)(2)(i). The statement must specifically identify the findings of
fact, the conclusions of law, or both, that are being challenged. If a question
of law is presented, supporting authority must be cited. If the dispute is over
the findings of fact, the specific facts contested must be identified. Where
the appeal concerns discretionary relief, the appellant must state whether the
alleged error relates to statutory grounds of eligibility or to the exercise of
discretion and must identify the specific factual and legal finding or findings
that are being challenged.
Moreover, this Court has explained that the issue must be reasonably developed in the
petitioner’s brief to the BIA. Hasan v. Ashcroft, 397 F.3d 417, 420 (6th Cir. 2005). If the
petitioner fails to exhaust an issue before the BIA, that issue is normally deemed to be
waived. Id. at 419-20; see also Ramani v. Ashcroft, 378 F.3d 554, 560 (6th Cir. 2004).
The Government argues that this Court should dismiss Khalili’s petition for lack of
jurisdiction because he did not appeal to the BIA the immigration judge’s determination that
he failed to show that the government of Jordan would be unwilling or unable to protect him.
Review of Khalili’s notice of appeal and his supporting brief reveals that he did not raise any
challenges to the immigration judge’s finding regarding the Jordanian government.
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2. Sua sponte consideration by the BIA
Khalili’s failure to challenge the immigration judge’s determination regarding the
inability or unwillingness of the government of Jordan to protect him would ordinarily end
our inquiry because this Court is without jurisdiction to consider unexhausted claims. See
INA section 242(d)(1), 8 U.S.C. § 1252(d)(1); see also Perkovic v. INS, 33 F.3d 615, 619
(6th Cir. 1994). Here, however, the BIA sua sponte raised and ruled on the merits of
Khalili’s claim that the government of Jordan was unable to protect him. Therefore, we must
now address the jurisdictional effect of the BIA’s sua sponte consideration of the merits of
this issue.
As noted recently by our sister circuit in Bin Lin v. Attorney Gen., 543 F.3d 114, 123
(3d Cir. 2008), several circuits have considered the issue of whether the BIA’s decision to
consider an issue not properly presented to it provides the appellate court with jurisdiction.
Only the Eleventh Circuit finds a complete lack of jurisdiction in a case similar to this one.
See Amaya-Artunduage v. Attorney Gen., 463 F.3d 1247, 1250 (11th Cir. 2006) (per curiam)
(finding that the court lacked “jurisdiction over a claim when an alien, without excuse or
exception, fail[ed] to exhaust that claim,” even when “the BIA nonetheless consider[ed] the
underlying issue sua sponte”). On the other hand, the majority of circuits have held that
where the BIA could have summarily dismissed for failure to raise an issue (or raise with
specificity) but nonetheless reached the merits or affirmed the merits of the immigration
judge’s decision, the exhaustion requirement is waived and the appellate court has
jurisdiction. See Zine v. Mukasey, 517 F.3d 535, 540-41 (8th Cir. 2008) (finding appellate
jurisdiction where the BIA decided to reach the merits of the issue); Pasha v. Gonzales, 433
F.3d 530, 532-33 (7th Cir. 2005) (explaining that where the BIA could have summarily
dismissed an appeal for failure to raise an issue with specificity but instead affirmed on the
merits, the exhaustion requirement was waived); see also Abebe v. Gonzales, 432 F.3d 1037,
1041 (9th Cir. 2005) (en banc) (“When the BIA has ignored a procedural defect and elected
to consider an issue on its substantive merits, we cannot then decline to consider the issue
based upon this procedural defect.”).
In Sidabutar v. Gonzales, 503 F.3d 1116 (10th Cir. 2007), the Tenth Circuit provided
analysis supporting appellate jurisdiction, reasoning that:
No. 08-3296 Khalili v. Holder Page 7
[W]hile § 1252(d)(1) requires that an alien exhaust “all
administrative remedies,” the BIA has the authority to determine its
agency’s administrative procedures. If the BIA deems an issue sufficiently
presented to consider it on the merits, such action by the BIA exhausts the
issue as far as the agency is concerned and that is all § 1252(d)(1) requires
to confer our jurisdiction. Where the BIA determines an issue
administratively-ripe to warrant its appellate review, we will not
second-guess that determination. Indeed, it is a touchstone of administrative
law that “the formulation of procedures [is] basically to be left within the
discretion of the agencies to which Congress had confided the responsibility
for substantive judgments.” Vermont Yankee Nuclear Power Corp. v.
Natural Resources Defense Council, Inc., 435 U.S. 519, 524 (1978).
Administrative agencies “should be free to fashion their own rules of
procedure and to pursue methods of inquiry capable of permitting them to
discharge their multitudinous duties.” FCC v. Pottsville Broadcasting Co.,
309 U.S. 134, 143 (1940). Cf. Weinberger v. Salfi, 422 U.S. 749, 767
(1975) (holding that an agency may waive internal exhaustion
requirements).
. . . Under 8 C.F.R. § 1003.3(b) (“specificity requirement”), an alien
taking an appeal of an [immigration judge] decision “must specifically
identify the findings of fact, the conclusions of law, or both, that are being
challenged.” Nothing in the agency’s regulations preclude the BIA from
waiving this requirement. Indeed, the BIA has discretionary authority to
dismiss (and conversely, accept) appeals lacking in specificity. See 8 C.F.R.
§ 1003.1(d)(2)(i) (“A single Board member or panel may summarily dismiss
any appeal or portion of any appeal in any case in which . . . [t]he party
concerned fails to specify the reasons for the appeal . . . .”) (emphasis
added). Thus, the BIA’s waiver of the specificity requirement in this case
does not detract from the decision constituting the BIA’s final order on the
issues, 8 C.F.R. § 1003.1(d)(7) and we retain jurisdiction over that final
order, 8 U.S.C. § 1252(a)(1).
503 F.3d at 1119-20 (citations omitted).
This Court’s decision in Hassan v. Gonzales, 403 F.3d 429, 433 (6th Cir. 2005), also
supports a finding of jurisdiction. There, we determined that in cases in which the BIA
summarily affirms the immigration judge’s decision without further analysis, an alien’s
administrative remedies are exhausted, giving us jurisdiction to entertain a petition for
review. Id. We reasoned that by affirming without opinion under section 1003.1(e)(4),
rather than summarily dismissing the case under section 1003.1(d)(2)(i)(A), the BIA
determined the petitioning alien had satisfied the specificity requirement. Id.
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We must now decide whether appellate jurisdiction extends to the circumstances at
hand. The Third Circuit, following the Tenth Circuit, provides support for such an
application:
Holding that the BIA waived its specificity requirement does not run counter
to the purposes underlying the exhaustion doctrine. The Supreme Court has
explained that “[e]xhaustion is generally required as a matter of preventing
premature interference with agency processes, . . . [giving the agency] an
opportunity to correct its own errors, to afford the parties and the courts the
benefit of its experience and expertise, and to compile a record which is
adequate for judicial review.” [Weinberger v.] Salfi, 422 U.S. [749, 765
(1975).] While these are important concerns, “[w]here the BIA has issued
a decision considering the merits of an issue, even sua sponte, these interests
have been fulfilled.” Sidabutar, 503 F.3d at 1121. The BIA has already had
an opportunity to apply its experience and expertise without judicial
interference. So too, the fact that the BIA has addressed the issue
independently from the [immigration judge] ensures that the record is
adequate for our review. Indeed, the Sidabutar court expressly limited the
application of this rule to cases in which the BIA “issues a full explanatory
opinion or a discernible substantive discussion on the merits over matters not
presented by the alien,” distinguishing cases where “the BIA summarily
affirms the [immigration judge] decision in toto without further analysis of
the issue.” Id. at 1122 (citing 8 C.F.R. § 1003.1(e)(4)).
Bin Lin, 543 F.3d at 125. Stated differently, the Third Circuit adopted the position that
appellate jurisdiction is even more appropriate in cases in which the BIA has sua sponte
reached the merits of an issue, than in cases in which the BIA has summarily affirmed the
immigration judge decision.
Therefore, we follow the majority of circuit courts in finding appellate jurisdiction
to review issues raised sua sponte by the BIA. In such cases, the BIA’s action waives that
issue’s exhaustion requirements. Because the BIA waived the exhaustion requirement here
and addressed the merits of the issue of the immigration judge’s determination on the
government of Jordan, we have jurisdiction to consider Khalili’s claim.
B. Standard of review
Where the BIA reviews the immigration judge’s decision and issues a separate
opinion, rather than summarily affirming the immigration judge’s decision, we review the
BIA’s decision as the final agency determination. Morgan v. Keisler, 507 F.3d 1053, 1057
(6th Cir. 2007). To the extent the BIA adopted the immigration judge’s reasoning, however,
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this Court also reviews the immigration judge’s decision. See Patel v. Gonzales, 470 F.3d
216, 218 (6th Cir. 2006). Questions of law are reviewed de novo, but substantial deference
is given to the BIA’s interpretation of the INA and accompanying regulations. Morgan, 507
F.3d at 1057 (citing Sad v. INS, 246 F.2d 811, 814 (6th Cir. 2001)). “The BIA’s
interpretation of the statute and regulations will be upheld unless the interpretation is
‘arbitrary, capricious, or manifestly contrary to the statute.’” Id. (quoting Sad, 246 F.2d at
815).
This Court reviews both the immigration judge’s and the BIA’s factual findings
under the substantial-evidence standard. Hamida v. Gonzales, 478 F.3d 734, 736 (6th Cir.
2007). We cannot reverse such findings simply because we would have decided them
differently. Gishta v. Gonzales, 404 F.3d 972, 978 (6th Cir. 2005). “These findings ‘are
conclusive unless any reasonable adjudicator would be compelled to conclude to the
contrary.’” Id. (quoting 8 U.S.C. § 1252(b)(4)(B)).
C. Applicable law
Khalili requests withholding of removal under INA section 241(b)(3). Withholding
of removal is not discretionary, but rather is mandatory if the alien establishes that his “life
or freedom would be threatened in the proposed country of removal on account of race,
religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C.
§ 1231(b)(3)(a); Pilica v. Ashcroft, 388 F.3d 941, 951 (6th Cir. 2004). However, an
applicant seeking withholding of removal faces “a more stringent burden than what is
required on a claim for asylum,” Liti v. Gonzales, 411 F.3d 631, 640 (6th Cir. 2005), and
must demonstrate “that there is a clear probability that he will be subject to persecution if
forced to return to the country of removal.” Singh v. Ashcroft, 398 F.3d 396, 401 (6th Cir.
2005) (quoting Pilica, 388 F.3d at 951). The BIA has defined persecution as “the infliction
of harm or suffering by the government, or persons the government is unwilling or unable
to control, to overcome a characteristic of the victim.” Pilica, 388 F.3d at 950 (quoting
Matter of Kasinga, 21 I&N Dec. 357, 365 (BIA 1996)).
No. 08-3296 Khalili v. Holder Page 10
D. Substantial Evidence
Khalili’s claim for withholding of removal focuses on harm previously inflicted and
future threats of harm—including potential honor killings—by Deena’s family members, not
by any government. While Khalili does present evidence of honor killings in Jordan, there
simply is insufficient evidence to demonstrate that the government would be unwilling or
unable to control Deena’s family members and protect Khalili and his family from harm. See
Raza v. Gonzales, 484 F.3d 125, 129 (1st Cir. 2007) (“When an asylum claim focuses on
non-governmental conduct, its fate depends on some showing either that the alleged
persecutors are aligned with the government or that the government is unwilling or unable
to control them.”). To be sure, the State Department’s 2005 Country Report on Human
Rights Practices for Jordan, which is part of the record of this case, indicates that some
criminal defendants accused of honor crimes took advantage of loopholes in Jordan’s penal
code to receive significantly reduced sentences as compared to the usual penalties for the
underlying crime. However, the report also indicates that the Jordanian authorities
prosecuted all fifteen honor crimes reported in 2004. Moreover, the report indicates that the
police have placed potential victims in protective custody and that there is a “societal trend”
toward condemning honor crimes. Based on this record, we cannot conclude that a
reasonable adjudicator would be compelled to find that the Jordanian government was
unwilling or unable to protect Khalili. See El Ghorbi v. Mukasey, 281 F. App’x 514, 517
(6th Cir. 2008) (finding no eligibility for asylum or withholding of removal where petitioner
could not establish that he was harmed by persons the government was unwilling or unable
to control); Kere v. Gonzales, 252 F. App’x 708, 713 (6th Cir. 2007) (determining that no
persecution exists where family members abused applicant because there was no evidence
that the government was unable or unwilling to control the family members’ conduct and
protect the applicant).
III. CONCLUSION
We find that this Court has jurisdiction to consider Khalili’s appeal because the
BIA’s actions exhausted Khalili’s administrative remedies. However, we also find that
substantial evidence supports the BIA’s determination that Khalili failed to show that the
No. 08-3296 Khalili v. Holder Page 11
Jordanian government was unable or unwilling to protect him and his family. We therefore
DENY Khalili’s petition for review.