Anwar v. Immigration & Naturalization Service

United States Court of Appeals,

Fifth Circuit.

No. 95-60742.

Jawaid ANWAR, Petitioner,

v.

IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

March 13, 1997.

Appeal from the Board of Immigration Appeals.

Before JOLLY, JONES and PARKER, Circuit Judges.

PARKER, Circuit Judge:

Jawaid Anwar ("Anwar"), a citizen of Pakistan, petitions this

court for review of his due process contention that the Board of

Immigration Appeals ("BIA") denied him due process in not granting

him an extension of time to file a brief before it affirmed the

decision of the Immigration Judge ("IJ") denying Anwar asylum and

withholding of deportation. For the reasons given below, we grant

the petition and affirm the BIA.

FACTS AND PROCEEDINGS BELOW

Anwar, a 45-year-old citizen of Pakistan, entered the United

States on January 6, 1983 as a nonimmigrant visitor with

authorization to remain for six months. In an Order to Show Cause

dated April 19, 1993, the Immigration and Naturalization Service

("INS") charged Anwar with deportability under section 241(a)(1)(B)

of the Immigration and Nationality Act ("INA" or "the Act"), 8

U.S.C. § 1251(a)(1)(B), for remaining in the United States for a

time longer than permitted, and also under section 241(a)(2)(A)(ii)

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of the Act, 8 U.S.C. § 1251(a)(2)(A)(ii), for convictions after

entry of two crimes involving moral turpitude not arising out of a

single scheme of criminal conduct.

After a deportation hearing, the IJ found Anwar deportable as

charged. The INS had submitted records from the State of Virginia

showing the following convictions: (1) sexual battery (1985)

(one-year sentence with six months suspended); and (2) credit card

theft and fraudulent use of a credit card (1992) (five-year

suspended sentence).

Anwar applied for asylum and withholding of deportation under

section 243(h) of the Act, 8 U.S.C. § 1253(h), and section 208(a)

of the Act, 8 U.S.C. § 1158(a). On July 17, 1995, the IJ denied

Anwar's application for asylum and also found that he was

ineligible for the mandatory exercise of § 243(h)'s withholding of

deportation. The IJ found that Anwar's sexual battery conviction

was for a "particularly serious crime" and that Anwar was "a danger

to the community," making him ineligible under the Act for §

243(h)'s withholding of deportation.

Regarding Anwar's asylum application, the IJ found that Anwar

did not establish himself as a "refugee" under 8 U.S.C. §

1101(a)(42)(A) as required to warrant consideration for a

discretionary grant of asylum under § 208 of the Act, 8 U.S.C. §

1158(a). Anwar testified that while in Pakistan, people from

different ethnic groups had abused him verbally and physically

because of his Christian religion and political views. Anwar also

testified that he did not convert to Christianity until after his

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entry into the United States. Anwar attested to his suspicions

concerning the deaths of family members who were members of the

Mohajir Quami Movement ("MQM"), a Pakistani political party. He

himself is not a member of MQM. He also testified that he had never

been detained, interrogated, convicted or sentenced to jail while

in Pakistan. In his decision, the IJ referenced the State

Department's "country report" on Pakistan which stated that MQM is

a legal political party in Pakistan that has won 27 out of a total

of 99 seats in the providential assembly.

Anwar appealed the IJ's decision pro se to the BIA. He was

given until August 23, 1995 to submit a brief in support of his

appeal to the BIA. On August 8, 1995, the INS sent Anwar a copy of

the hearing transcript. On August 24, 1995, Anwar filed a "Motion

to Request Extension of Time to File Appeal Brief," pursuant to 8

C.F.R §§ 3.3(c) and 242.8, seeking an extension of time until

September 25, 1995 on the basis that he had retained counsel and

his attorney now required preparation time. On August 24, 1995, an

IJ denied Anwar an extension of time to file a brief with the BIA,

noting that, "The motion for an extension of time was received

after [the brief] was due."

On September 13, 1995, the BIA affirmed the IJ's decision for

the reasons set forth by the IJ. Anwar now appeals to this court on

due process grounds the BIA's denial of an extension of time to

file his brief, having filed a timely notice of appeal in December

of 1995.

DISCUSSION

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 A. Jurisdiction

During the pendency of Anwar's appeal to this Court, the

Antiterrorism and Effective Death Penalty Act of 19961 ("AEDPA")

was enacted. It amended our jurisdiction over final orders of the

BIA so as to preclude our review of certain matters. See Mendez-

Rosas v. INS, 87 F.3d 672 (5th Cir.1996), cert. denied,--- U.S. ---

-, 117 S.Ct. 694, 136 L.Ed.2d 617 (1997). After the AEDPA's

enactment, Congress enacted the Illegal Immigration Reform and

Immigrant Responsibility Act2 ("IIRIRA"), which further amended the

source of our jurisdiction. The fact that an appeal of a BIA final

deportation order was pending before this court at the time that

the two Acts were enacted does not hinder the Acts' withdrawal of

jurisdiction. The two Acts' jurisdiction provisions are

retroactive, and apply to appeals as governed by their various

effective dates. Pichardo v. INS, 104 F.3d 756, 757-58 (5th

Cir.1997); see also Mendez-Rosas, 87 F.3d 672. In Pichardo, we

explained the joint operation of the AEDPA amendments and a

currently effective IIRIRA amendment3 as applied to the source of

1
The Antiterrorism and Effective Death Penalty Act ("AEDPA"),
Pub.L. 104-132, 110 Stat. 1214 (April 24, 1996).
2
The Illegal Immigration Reform and Immigrant Responsibility
Act of 1996 ("IIRIRA"), Pub.L. No. 104-208, 110 Stat. 3009, was
signed into law by President Clinton on September 30, 1996.
3
That amendment is IIRIRA § 306(d). It contained an effective
date "as if included in the enactment of the Antiterrorism and
Effective Death Penalty Act of 1997 (Public Law 104-132)." IIRIRA
§ 306(d); see also Pichardo, 104 F.3d 756, 758; IIRIRA § 306(c)
(as amended by P.L. No. 104-302, 110 Stat. 3656, § 2(1) (Oct. 11,
1996)) & IIRIRA § 309(a) & (c) (explaining effective dates of
IIRIRA amendments).

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our jurisdiction.

The petition for review in this case concerns a due process

issue in the context of an asylum claim. The issue presented

initially is whether we retain jurisdiction of such an appeal.

Because this appeal does not concern either a particular

deportation decision or the determination of an application for

relief, the amended judicial review provisions do not bar our

review as they did in Pichardo. Even under the AEDPA and the

previously referenced amendment of the IIRIRA that is effective for

purposes of this case, we retain jurisdiction for issues such as

due process challenges, as presented here, that are not involved in

the administrative deportation decision. See McNary v. Haitian

Refugee Center, Inc., 498 U.S. 479, 492-94, 111 S.Ct. 888, 896-97,

112 L.Ed.2d 1005 (1991) (in the face of a jurisdiction withdrawal

statute, judicial review was retained for constitutional and

procedural issues because withdrawal concerned review of

administrative determinations and administrative appeals process

did not address the claimants' procedural and constitutional

claims).

Because there is a well-settled presumption favoring

interpretation of statutes to allow judicial review of

administrative action, the Supreme Court has explained that

judicial review of such action will be precluded only when

congressional intent to preclude such review is presented with

clear and convincing evidence. Reno v. Catholic Social Services,

Inc., 509 U.S. 43, 63-64, 113 S.Ct. 2485, 2499, 125 L.Ed.2d 38

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(1993) (citing cases). There is no such clear and convincing

evidence in the statute before us that Congress intended to

preclude constitutional, specifically, due process, questions from

our review. Nothing in the amended statute before us suggests that

Congress's preclusion of judicial review of

any final order of deportation against an alien who is
deportable by reason of having committed a criminal offense
covered in section 241(a)(2)(A)(iii), (B), (C), or (D), or any
offense covered by section 241(a)(2)(A)(ii) for which both
predicate offenses are, without regard to the date of their
commission, otherwise covered by section 241(a)(2)(A)(I)[,]

AEDPA, § 440(a) as amended by IIRIRA § 306(d); see also Pichardo,

104 F.3d 756, 758, extended to include constitutional questions.

Rather, it is evident that Congress intended to preclude from our

review those matters particular to the agency's discretion and

expertise, i.e., matters involved in determinations of

deportability. Section 440(b) of the AEDPA defines the "final

order of deportation" for which judicial review is precluded.

... 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 deportable, concluding that the alien is deportable or
ordering deportation.

AEDPA § 440(b), 8 U.S.C. § 1101(a)(47). In addition, the BIA's

jurisdiction is limited to appellate review of the following:

exclusion decisions; deportation determinations; discretionary

decisions regarding waiver of inadmissibility for certain convicted

criminals under § 212(c) of the Act; decisions regarding

administrative fines and penalties; decisions on preference

classification petitions; decisions on nonimmigrant visa

applications under § 212(d)(3) of the Act; bond, parole or

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detention decisions; decisions regarding adjustment of status;

decisions of asylum officers on applications for asylum and

withholding of deportation by alien crewmen and stowaways; and

decisions related to "temporary protected status." 8 C.F.R. §

3.1(b)(1)-(10); see also Espinoza-Gutierrez v. Smith, 94 F.3d

1270, 1273-74 (9th Cir.1996); Castaneda-Suarez v. INS, 993 F.2d

142, 144 (7th Cir.1993) (noting that BIA lacks authority to

adjudicate constitutional issues).

B. Due Process Claim

Anwar does not challenge the finding of deportability, nor

does he challenge the IJ's denial of asylum and withholding of

deportation. His contention is that he was denied due process

because, pursuant to regulations regarding deadlines for filing of

briefs, the BIA did not give him an extension of time to file a

brief appealing the decision of the IJ.

We review due process challenges on a de novo basis.

Ogbemudia v. INS, 988 F.2d 595, 598 (5th Cir.1993). It is clearly

established that the Fifth Amendment of the United States

Constitution entitles aliens to due process of law in deportation

proceedings. Animashaun v. INS, 990 F.2d 234, 238 (5th Cir.)

(citing Reno v. Flores, 507 U.S. 292, 305-06, 113 S.Ct. 1439, 1449,

123 L.Ed.2d 1 (1993)), cert. denied, 510 U.S. 995, 114 S.Ct. 557,

126 L.Ed.2d 458 (1993). Due process challenges to deportation

proceedings require an initial showing of substantial prejudice.4

4
We note that because Anwar does not assert procedural error
correctable by the BIA, but rather, in essence, a challenge to the
regulations regarding the submission of briefs, his claim is not

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Howard v. INS, 930 F.2d 432, 436 (5th Cir.1991); Calderon-

Ontiveros v. INS, 809 F.2d 1050, 1052 (5th Cir.1986).

In order for Anwar to show that the BIA's not extending the

deadline for the filing of his brief caused him substantial

prejudice, Anwar must make a prima facie showing that he was

eligible for asylum and that he could have made a strong showing in

support of his application. See Miranda-Lores v. INS, 17 F.3d 84,

85 (5th Cir.1994); Figeroa v. United States INS, 886 F.2d 76, 79

(4th Cir.1989). Anwar's contention must be denied because he has

not shown the requisite prejudice.

The IJ reasoned that Anwar's sexual battery conviction

constituted a "particularly serious crime" which serves as a bar to

mandatory withholding of deportation. See 8 U.S.C. § 1253(h).

Anwar has not offered any support that he suffered actual prejudice

in relation to his application. He made no attempt to demonstrate

that an extension of time to file his brief with the BIA would have

allowed him to demonstrate that his sexual battery conviction was

not a "particularly serious crime" barring relief under § 243(h).

He also failed to present a prima facie case for withholding of

deportation under § 243(h), as required to demonstrate prejudice.

See Miranda-Lores, 17 F.3d at 85; Figeroa, 886 F.2d at 79.

subject to an exhaustion requirement. See 8 U.S.C. § 1105a(c);
Koroma v. INS, 83 F.3d 427, 1996 WL 207142, at *2 (9th
Cir.1996)(due process claims generally exempt from exhaustion
doctrine because not within purview of BIA, except for procedural
errors which are within BIA's jurisdiction); Rashtabadi v. INS, 23
F.3d 1562 (9th Cir.1994) (same); see also Ogbemudia v. INS, 988
F.2d 595 (5th Cir.1993) (not subjecting alien's due process claim
to exhaustion requirement).

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 In order to be considered for a discretionary grant of asylum

under § 208(a) of the Act, an alien must qualify as a "refugee"

under 8 U.S.C. § 1101(a)(42)(A). See 8 U.S.C. § 1158(a). A

refugee is defined as an alien who is unwilling or unable to return

to his country of nationality because of persecution or a

well-founded fear of persecution on account of race, religion,

nationality, membership in a particular social group, or political

opinion. See 8 U.S.C. § 1101(a)(42)(A). As Anwar clearly failed

to present a prima facie case that he is a refugee, see Guevara

Flores v. INS, 786 F.2d 1242 (5th Cir.1986) (reviewing requirements

for asylum), cert. denied, 480 U.S. 930, 107 S.Ct. 1565, 94 L.Ed.2d

757 (1987), he suffered no prejudice by the BIA declining to extend

his deadline for the filing of his brief. See Miranda-Lores, 17

F.3d at 85; Figeroa, 886 F.2d at 79.

CONCLUSION

For the foregoing reasons, the petition is GRANTED and the BIA

order is AFFIRMED.

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