Case: 20-60936 Document: 00516118808 Page: 1 Date Filed: 12/06/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
December 6, 2021
No. 20-60936
Lyle W. Cayce
Clerk
Ahmed Elsayed Mahm Ibrahim,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of
the Board of Immigration Appeals
No. A 209 768 382
Before King, Smith, and Haynes, Circuit Judges.
Jerry E. Smith, Circuit Judge:
Ahmed Ibrahim is an Egyptian national and lawful permanent resident
of the United States. Several years ago, he sent a picture of his genitals to
someone who identified herself as a thirteen- or fourteen-year-old girl. For
that conduct, he pleaded guilty of violating Section 14:81 of the Louisiana
Revised Statutes, which proscribes “Indecent behavior with juveniles.”
That plea led the Attorney General to institute removal proceedings. After a
long and complex procedural history, the Board of Immigration Appeals
(“BIA”) ordered Ibrahim removed to Egypt. He petitions for review. Be-
cause any errors the BIA made were harmless, we deny the petition.
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I.
Ibrahim committed his crime in June 2016. Later that year, Louisiana
charged him with “Computer-aided solicitation of a minor” under Sec-
tion 14:81.3 of the Louisiana Revised Statutes. Ibrahim ultimately avoided a
trial on that charge by submitting a guilty plea in August 2017. Importantly,
however, he pleaded guilty of committing a different crime—“indecent be-
havior with a juvenile” under Section 14:81—for which he received a sus-
pended sentence of five years at hard labor and was required to register as a
sex offender.
Shortly thereafter, the Attorney General took Ibrahim into custody
and instituted removal proceedings. Based on his Section 14:81 plea, the
government alleged that Ibrahim had been convicted of an “aggravated fel-
ony” and a “crime of child abuse”—thus making him removable under
8 U.S.C. § 1227(a)(2)(A)(iii) and (E)(i), respectively.
Ibrahim’s bond hearing and initial removal hearing were held on the
same day in late October before the same immigration judge (“I.J.”). That
is when the first error relevant to this petition occurred. During the bond
hearing, the government introduced evidence of Ibrahim’s Section 14:81 plea
in the form of criminal-court minutes. Under immigration regulations, bond
proceedings and removal proceedings are supposed to be separate from one
another. 1 So, the government should have formally resubmitted the criminal-
court minutes at the start of the removal hearing, but it never did (probably
1
See 8 U.S.C. § 1229a(c)(1)(A) (“At the conclusion of the [removal] proceeding
the immigration judge shall decide whether an alien is removable from the United States.
The determination of the immigration judge shall be based only on the evidence produced
at the hearing.”); 8 C.F.R. § 1003.19(d) (“Consideration by the Immigration Judge of an
application or request of a respondent regarding custody or bond under this section shall
be separate and apart from, and shall form no part of, any deportation or removal hearing
or proceeding.”).
2
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because the removal hearing directly followed the bond hearing, and the
minutes had been introduced during the bond hearing). As a result, based on
the criminal-court minutes that hadn’t been formally introduced into the
record, the I.J. found that Ibrahim had been convicted of violating Section
14:81. 2 No one caught or objected to that mistake. 3 Relying on that finding,
the I.J. sustained both charges of removability.
Ibrahim then submitted applications to adjust his status under
8 U.S.C. § 1255(a) and waive his inadmissibility under 8 U.S.C. § 1182(h).
But when he did not submit the necessary paperwork on time, another I.J.
declined to grant him a continuance and denied both applications. Because
the aggravated-felony charge rendered Ibrahim ineligible for voluntary depar-
ture, that I.J. ordered him removed to Egypt.
Ibrahim appealed, asking the BIA to grant him a continuance and re-
mand for reconsideration of his applications for relief from removal. But
although he also requested the BIA to review the aggravated felony charge,
his appeal never mentioned the child-abuse charge.
The BIA reversed and remanded to allow Ibrahim another chance to
submit his paperwork and applications for relief. It also instructed the I.J. to
reconsider its decision that Ibrahim had been convicted of an aggravated
felony based on Esquivel-Quintana v. Sessions, 137 S. Ct. 1562 (2017).
On remand, Ibrahim disputed the aggravated-felony charge but also
sought to relitigate the child-abuse charge. A new I.J. suggested that Ibrahim
2
At the government’s request, we ordered the record to be supplemented with
Ibrahim’s bill of information and criminal-court minutes.
3
Ibrahim claims otherwise, but that’s not quite correct. He merely denied the exis-
tence of his Section 14:81 plea and sentence. When the I.J. found its existence based on the
criminal-court minutes, Ibrahim did not object to the absence from the record of the
criminal-court minutes.
3
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would be unlikely to revisit the child-abuse charge but encouraged him to
make arguments about it in his next filings. In response, the Attorney Gen-
eral brought an additional charge of removability, alleging that Ibrahim had
committed a “crime involving moral turpitude” (“CIMT”) and was there-
fore removable under 8 U.S.C. § 1227(a)(2)(A)(i). After briefing, the I.J.
rejected the aggravated-felony charge based on Esquivel-Quintana and sus-
tained the CIMT charge. The I.J. did not address the child-abuse charge—
likely because Ibrahim’s briefs failed to analyze it and mentioned it only in
passing.
Next, yet another I.J. stepped in to adjudicate Ibrahim’s applications
for relief after he finally had submitted the necessary paperwork. At a hearing
on those applications, Ibrahim took the stand to try to establish that he had
good moral character despite his conviction. During his sworn testimony, he
confessed that he had sent an image of his genitals to a girl who said she was
thirteen or fourteen. He also admitted that he had pleaded guilty of “inde-
cent behavior with a juvenile”—a crime under Section 14:81. His attorneys
conceded the same in a brief on his behalf, as they had in other documents
since the start of his case.
In addition to deciding Ibrahim’s applications for relief, however, the
new I.J. also revisited the removability decisions made by his predecessor.
That I.J. noticed the mistake with the introduction of the criminal-court
minutes and observed they should not have been considered in Ibrahim’s
removal proceedings. Based on that observation, the I.J. found the Attorney
General had not proven Ibrahim’s Section 14:81 conviction and, therefore,
had not established, by clear and convincing evidence, that Ibrahim was re-
movable. As alternative grounds for the decision, the I.J. ruled that Ibrahim’s
4
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conviction did not qualify as an aggravated felony or a CIMT 4 and that his
applications for relief from removal should be granted. Even so, the I.J.
entirely failed to mention or address the child-abuse charge that had been
sustained against Ibrahim.
The Attorney General appealed. As relevant here, he contended that
Ibrahim’s Section 14:81 conviction had been established by his testimony and
the briefs submitted by his attorneys. The Attorney General also asserted
that the I.J. had erred in terminating removal proceedings because Ibrahim
was still removable based on the child-abuse charge. In opposition, Ibrahim
asked the BIA to sustain the I.J.’s determination that the Attorney General
had not satisfied his “evidentiary burden of proving [Ibrahim] was convicted
of any crime by not submitting documents.” Ibrahim also stated that “he
adopt[ed] the reasoning stated in the Immigration Judge’s decision” on the
aggravated felony and CIMT issues. But even though Ibrahim was aware that
a child-abuse charge had been sustained, he did not mention the charge to the
BIA or ask that agency to review it.
The BIA reversed. On the evidentiary issue, it conceded that Ibra-
him’s criminal-court minutes had not been properly introduced. Even so,
the BIA overturned the decision of the I.J. because Ibrahim “ha[d] admitted
in multiple briefs and during his testimony that he pled guilty to violating
Louisiana Revised Statutes § 14:81.” On the removability issue, the BIA held
that Ibrahim was removable because another I.J. had previously found that he
had committed a crime of child abuse; in its view, that finding was the law of
the case and could not be revisited. Finally, the BIA decided that Ibrahim’s
applications for relief should not be granted because he did not qualify for a
4
Notably, the I.J. analyzed this issue using the text of Section 14:81.3, not Section
14:81, based on a misreading of Ibrahim’s criminal records.
5
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favorable exercise of discretion. Accordingly, it ordered Ibrahim removed to
Egypt.
This petition followed.
II.
Ibrahim contests two aspects of the BIA’s decision.
First, he claims that the BIA erroneously determined that his testi-
mony and his attorney’s statements established that he was convicted of vio-
lating Section 14:81. According to him, immigration regulations permit the
government to use documentary evidence only to prove an alien’s criminal
conviction. He also claims that relying on his testimony violated due process
because it was not probative enough to be admissible and that the BIA could
not use his attorney’s briefs as evidence of his conviction. And in the alterna-
tive, Ibrahim maintains those sources of information are not reliable enough
to establish his conviction by clear and convincing evidence. 5
Second, Ibrahim says that the BIA erroneously held that his remova-
bility for the child-abuse charge was the law of the case. He claims that
couldn’t be true, given that the BIA never ruled on that question itself or
prohibited an I.J. from revisiting it on remand.
A.
Before we can address the merits of those issues, however, we must
confirm they have been exhausted. If not, we are without jurisdiction. Cruz
Rodriguez v. Garland, 993 F.3d 340, 345 (5th Cir. 2021) (citing 8 U.S.C.
5
In his reply brief, Ibrahim also appears to argue that the BIA could not consider
evidence introduced during the relief stage of removal proceedings to determine whether
Ibrahim was removable in the first place. Because that argument was not raised in his
opening brief, it has been forfeited. See Sahara Health Care, Inc. v. Azar, 975 F.3d 523, 528
n.5 (5th Cir. 2020).
6
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§ 1252(d)(1)). The government claims that Ibrahim did not exhaust the
issues before us. It observes that Ibrahim never specifically objected to the
absence of the criminal-court minutes from the record. It also notes that
before the BIA, Ibrahim never contested his removability for committing a
crime of child abuse. All that is true. Even so, most of Ibrahim’s claims have
been exhausted.
Ibrahim’s claim that the government did not prove his Section 14:81
conviction by clear and convincing evidence has been exhausted. “[I]f 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 . . . .”
Mirza v. Garland, 996 F.3d 747, 753 (5th Cir. 2021) (quoting Lopez-Dubon v.
Holder, 609 F.3d 642, 644 (5th Cir. 2010)). And that’s the case even if the
government, not the alien, brought the issue to the BIA’s attention. See id.
That’s what happened here. The government contended that those sources
of information established Ibrahim’s Section 14:81 conviction by clear and
convincing evidence, and the BIA agreed. Accordingly, that claim has been
exhausted.
The same goes for Ibrahim’s claim that his removability for commit-
ting a crime of child abuse was not the law of the case. That claim is also
exhausted because the BIA “consider[ed] it on the merits.” Mirza, 996 F.3d
at 753. Just as for the previous claim, the government presented the law-of-
the-case issue to the BIA, which adopted the government’s position on that
question as its own. “So the claim was exhausted, and we have jurisdiction.”
Id.
Ibrahim has also exhausted his claim that immigration regulations re-
quire convictions to be proven using documentary evidence. In the brief he
submitted to the BIA, he contended that the government had not met its evi-
dentiary burden because it had not introduced any documents into the rec-
7
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ord. Although that assertion was not as developed as the theory he presents
today, the arguments that aliens present to that agency need not be “iden-
tical” to those they proffer to this court. Vazquez v. Sessions, 885 F.3d 862,
868 (5th Cir. 2018). Instead, the exhaustion requirement is satisfied when
they make “concrete statement[s] before the BIA to which they could rea-
sonably tie their claims before this court.” Omari v. Holder, 562 F.3d 314,
322 (5th Cir. 2009).
Ibrahim’s statement was sufficiently concrete to “put the BIA on
notice of his claim” that the government was required to submit documents
to support his conviction. Vazquez, 885 F.3d at 868. So, that claim is
exhausted.
But Ibrahim has not exhausted his claims that his testimony was not
probative enough to be admissible. 6 Those arguments are brand new. Nei-
ther the Attorney General nor Ibrahim asked the BIA to resolve them. As a
result, the BIA never had “the opportunity to apply its specialized knowledge
and experience to the matter” and “resolve a controversy or correct its own
errors before judicial intervention.” Lopez-Dubon, 609 F.3d at 644 (quoting
Sidabutar v. Gonzales, 503 F.3d 1116, 1122 (10th Cir. 2007)). Therefore, Ibra-
him has failed to exhaust those issues, and we lack jurisdiction. See Omari,
562 F.3d at 321–22.
6
Ibrahim characterizes this as a due process challenge. Such claims “are generally
not subject to the exhaustion requirement.” Roy v. Ashcroft, 389 F.3d 132, 137 (5th Cir.
2004) (per curiam). But even though Ibrahim “couche[s]” this claim “in terms of due
process, it actually concerns ‘procedural error correctable by the BIA’”―namely, the in-
admissibility of the evidence it considered. Id. (quoting Anwar v. INS, 116 F.3d 140, 144
n.4 (5th Cir. 1997)). As a result, this issue is “properly subject to the exhaustion re-
quirement.” Id.
8
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B.
Now, to the merits. None of the issues Ibrahim has raised merits our
granting his petition. Even if we agreed the BIA analyzed them incorrectly,
we would still deny his petition. Any errors were harmless.
Normally, we may “uphold agency action only on the grounds that the
agency invoked when it took the action.” Maniar v. Garland, 998 F.3d 235,
240 (5th Cir. 2021) (quoting Michigan v. EPA, 576 U.S. 743, 758 (2015)). 7 We
have recognized, however, a “limited exception[]” in immigration cases. Id.
(quoting Luna-Garcia v. Barr, 932 F.3d 285, 291 (5th Cir. 2019)). 8 Even
where the BIA makes a mistake, we may affirm its ultimate decision if “there
is no realistic possibility” that (1) “[its] conclusion would have been different
absent the error” 9 or (2) “[it] would reach a different conclusion on re-
mand.” 10 In those situations, instructing the BIA to correct the error “would
be an idle and useless formality” that would “convert judicial review of
agency action into a ping-pong game”—something “Chenery does not
require.” Maniar, 998 F.3d at 240 (quoting Morgan Stanley Cap. Grp. v. Pub.
Util. Dist. No. 1, 554 U.S. 527, 545 (2008)). And the BIA’s purported errors
in this case comfortably meet that standard.
7
Accord SEC v. Chenery Corp. (Chenery I), 318 U.S. 80, 87 (1943).
8
And we’re not alone. See Nadal-Ginard v. Holder, 558 F.3d 61, 69 n.7 (1st Cir.
2009); Cao He Lin v. DOJ, 428 F.3d 391, 401 (2d Cir. 2005); Li Hua Yuan v. Att’y Gen.,
642 F.3d 420, 427 (3d Cir. 2011); Ngarurih v. Ashcroft, 371 F.3d 182, 190 n.8 (4th Cir.
2004); Japarkulova v. Holder, 615 F.3d 696, 701 (6th Cir. 2010); Kadia v. Gonzales, 501 F.3d
817, 821 (7th Cir. 2007); Gilbertson v. Garland, 7 F.4th 700, 705 n.2 (8th Cir. 2021);
Zamorano v. Garland, 2 F.4th 1213, 1228 (9th Cir. 2021); Nazaraghaie v. INS, 102 F.3d 460,
465 (10th Cir. 1996).
9
Maniar, 998 F.3d at 240 (alteration in original) (quoting Nguhlefeh Njilefac v.
Garland, 992 F.3d 362, 365 (5th Cir. 2021)).
10
Luna-Garcia, 932 F.3d at 291 (quoting Enriquez-Gutierrez v. Holder, 612 F.3d
400, 407 (5th Cir. 2010)).
9
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First, any errors in finding that Ibrahim violated Section 14:81 were
harmless. There is “no realistic possibility” that the BIA would change its
decision on remand. Luna-Garcia, 932 F.3d at 291. Even in the absence of
his testimony and his attorney’s statements, the BIA could have taken admin-
istrative notice of the relevant facts contained in the criminal-court minutes, 11
which unequivocally show that Ibrahim pleaded guilty of “indecent behavior
with a juvenile” under Section 14:81. Thus, remanding would be pointless.
Second, any errors the BIA made in concluding that Ibrahim was re-
movable for committing a crime of child abuse were harmless. There is “no
realistic possibility” that that “conclusion would have been different” if the
BIA had determined the child-abuse finding was not the law of the case.
Maniar, 998 F.3d at 240. Whether an I.J. or the BIA could have revisited that
question is purely academic. Neither did. 12 What’s more, Ibrahim never
seriously asked them to do so. He failed to dispute the child-abuse charge in
his initial appeal. Then, on remand, he did not meaningfully contest that
finding before the Immigration Court—even after an I.J. encouraged him to
do so.
Finally, Ibrahim never mentioned the charge in his briefing during the
second appeal. That is so even though the government specifically high-
lighted that charge in its briefing. In sum, Ibrahim repeatedly failed to contest
the child-abuse charge, so the BIA would almost certainly have held that he
11
See 8 C.F.R. § 1003.1(d)(3)(iv)(A) (“[T]he Board may take administrative notice
of facts that are not reasonably subject to dispute, such as: . . . (2) The contents of official
documents outside the record; (3) Facts that can be accurately and readily determined from
official government sources and whose accuracy is not disputed; . . . .”).
12
An I.J. revisited the existence of Ibrahim’s conviction and his removability for
committing a CIMT, but the I.J. never addressed his removability for committing a crime
of child abuse.
10
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forfeited his challenge to it. 13 Thus, any error in the BIA’s analysis had no
impact on its ultimate conclusion that Ibrahim was removable.
* * *
The petition for review is DENIED.
13
Indeed, much of the BIA’s reasoning on the law-of-the-case issue also explains
why Ibrahim forfeited his challenge to that charge of removability. See In re M-B-C-,
27 I. & N. Dec. 31, 31 n.1 (B.I.A. 2017) (holding that an alien had waived issues that he failed
to “meaningfully challenge[]”); In re R-A-M-, 25 I. & N. Dec. 657, 658 n.2 (B.I.A. 2012)
(“The respondent did not appeal the Immigration Judge’s decision regarding that aspect
of his claim, so this issue is waived”).
11