Al-Mousa v. Mukasey

RAWLINSON, Circuit Judge,

dissenting:

I respectfully dissent from the majority’s remand of this case to the Board of Immigration Appeals “to consider whether, as a matter of law, individuals under twenty-one years of age are minors under 8 C.F.R. § 1208.4(a)(5)(ii).”

The reason for my dissent is simple. We have no jurisdiction to address the issue of whether individuals under the age of twenty-one are minors because that issue was not exhausted by Petitioner Khalid Al-Mousa. See Zhang v. Ashcroft, 388 F.3d 713, 721 (9th Cir.2004) (“The petitioner’s failure to raise an issue to the BIA constitutes a failure to exhaust, depriving this Court of jurisdiction.”) (citation omitted). Although the majority disposition acknowledges the exhaustion requirement and the fact that the issue was not raised “in the asylum application itself, before the IJ, or in his pro se BIA appeal,” the disposition seeks to skirt the exhaustion requirement by rationalizing that “if the agency determines Al-Mousa was a minor at the time of his application, this disability may provide an exception, also forgiving failure to exhaust his claim.” Absolutely no supporting authority is cited to bolster this novel attempt to bootstrap us into jurisdiction over an unexhausted issue.

Because we have no jurisdiction over the issue of Al-Mousa’s purported minority, I would deny the petition because the Immigration Judge’s adverse credibility determination was supported by substantial evidence.