13-21
Baidis v. Lynch
BIA
Burr, IJ
A071 993 223
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT
FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE
(WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 17th day of November, two thousand sixteen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 BARRINGTON D. PARKER,
9 Circuit Judges,
10 JANE A. RESTANI,
11 Judge, U.S. Court of International Trade.
12 _____________________________________
13
14 BASSAM BAIDIS, AKA HASSAN GORAL,
15 Petitioner,
16
17 v. 13-21
18
19
20 LORETTA E. LYNCH, UNITED STATES
21 ATTORNEY GENERAL,
22 Respondent.
23 _____________________________________
24
25 FOR PETITIONER: Joshua Bardavid, New York, NY.
26
Judge Jane A. Restani, of the United States Court of International Trade,
sitting by designation.
1 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
2 General; Erica B. Miles, Senior
3 Litigation Counsel; Jesse Lorenz,
4 Office of Immigration Litigation,
5 United States Department of Justice,
6 Washington, DC.
7
8 UPON DUE CONSIDERATION of this petition for review of a
9 Board of Immigration Appeals (“BIA”) decision, it is hereby
10 ORDERED, ADJUDGED, AND DECREED that the petition for review is
11 GRANTED in part and DENIED in part.
12
13 Petitioner Bassam Baidis, a stateless Palestinian, seeks
14 review of a December 27, 2012, decision of the BIA affirming
15 a December 2, 2010, decision of an Immigration Judge (“IJ”)
16 ordering him removed to Turkey or alternatively, Jordan or
17 Israel and the Occupied Territories. The IJ granted
18 withholding of removal with respect to Israel and the Occupied
19 Territories, but denied Baidis’s application for cancellation
20 of removal. In re Bassam Baidis, No. A071 993 223 (B.I.A. Dec.
21 27, 2012), aff’g No. A071 993 223 (Immig. Ct. N.Y. City Dec.
22 2, 2010). We assume the parties’ familiarity with the
23 underlying facts and procedural history in this case.
24 Baidis argues that the IJ, having granted him withholding
25 of removal to Israel, was required to grant him withholding of
26 removal to Turkey and Jordan.1 His argument is as follows: he
27 adduced evidence that Turkey and Jordan will return him to
28 Israel; the IJ found that if returned to Israel, Baidis will
29 more likely than not be persecuted; the Immigration and
30 Nationality Act (“INA”) prohibits the Attorney General from
31 removing an alien to a country where he will be more likely than
32 not be persecuted; therefore, Baidis is entitled to withholding
33 of removal to all three designated countries of removal.
34 Baidis has identified a possible tension between the INA’s
35 removal commands and the provision on withholding of removal.
1 Baidis contends that if he failed to apply specifically for withholding
to Turkey and Jordan, it was because the IJ did not give him notice of her
intention to designate those countries as countries of removal. He failed
to exhaust this argument before the BIA, and so we decline to consider it.
Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 107 n.1 (2d Cir. 2006,
amended 2007).
2
1 The INA’s removal commands list four “steps” for an IJ to take
2 in identifying the country of removal:
3 (1) An alien shall be removed to the country
4 of his choice . . . , unless one of the
5 conditions eliminating that command is
6 satisfied;
7
8 (2) otherwise he shall be removed to the
9 country of which he is a citizen . . . , unless
10 one of the conditions eliminating that
11 command is satisfied;
12
13 (3) otherwise he shall be removed to one of
14 the countries with which he has a lesser
15 connection . . . ; or
16
17 (4) if that is “impracticable, inadvisable,
18 or impossible,” he shall be removed to
19 “another country whose government will
20 accept the alien into that country.”
21
22 Jama v. Immigration and Customs Enf’t, 543 U.S. 335, 341 (2005)
23 (citing 8 U.S.C. § 1231(b)(2)). In Jama, the Supreme Court
24 held that step 3 has no “acceptance requirement.” Id. at
25 341-42. So, if the alien is to be removed “to one of the
26 countries with which he has a lesser connection,” the government
27 need not get that country’s prior consent before designating
28 it. Id. at 341. But the INA goes on to state that
29 “[n]otwithstanding” the removal commands, “the Attorney
30 General may not remove an alien to a country if the Attorney
31 General decides that the alien’s life or freedom would be
32 threatened in that country because of the alien’s race,
33 religion, nationality, membership in a particular social group,
34 or political opinion.” 8 U.S.C. § 1231(b)(3). If the alien
35 makes the required showing, withholding of removal is
36 mandatory. Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d
37 Cir. 2004) (citing 8 USC § 1231(b)(3)(A) & 8 C.F.R. §
38 208.16(b)(1)).
39 Baidis did not choose a country (step 1). As a stateless
40 Palestinian, he is not a citizen of any country (step 2). So,
41 the IJ identified the three countries with which Baidis has a
3
1 lesser connection (step 3): Turkey, from which Baidis was first
2 admitted to the United States in 1990; Jordan, which had
3 sovereignty over his birthplace when he was born; and Israel,
4 which has sovereignty over it today. The IJ designated Turkey,
5 with Jordan and Israel as alternatives. In accordance with
6 Jama, whether any of those countries would accept Baidis played
7 no role in the designation. Nor did the IJ analyze whether it
8 would be “inadvisable” to remove Baidis to those countries (step
9 4).
10 Baidis’s application for withholding described a fear of
11 persecution in Israel and the occupied territories. It made
12 no mention of Turkey or Jordan. However, Baidis testified that
13 he would not be permitted to reside in Turkey, notwithstanding
14 his wife’s citizenship. He testified about his inability to
15 reside permanently in Jordan, and his attorney submitted an
16 affidavit about Baidis’s conversation with the Jordanian
17 consulate on that topic. But, as Baidis concedes, nothing in
18 the record suggested that his “life or freedom would be
19 threatened” while he was in Turkey or in Jordan. 8 U.S.C. §
20 1231(b)(3).
21 The parties have not identified another case addressing a
22 stateless alien who was granted withholding of removal to one
23 of the countries with which he has a lesser connection. It is
24 unclear whether Baidis could have been eligible for withholding
25 of removal to Turkey and Jordan on the ground that those
26 countries would return him to Israel. If so, how would one
27 raise such a claim? The BIA’s decision is unclear; it concluded
28 that Baidis had not raised a withholding claim with respect to
29 Turkey or Jordan, but did not acknowledge the evidence that
30 Turkey and Jordan will return him to Israel. Also unclear is
31 whether the IJ should have evaluated if it would be
32 “inadvisable” to remove Baidis to countries that will return
33 him to Israel, where, as the IJ found, he will more likely than
34 not suffer persecution. See 8 U.S.C. §§ 1231(b)(2)(E)(vii),
35 1231(b)(3); but see Jama, 543 U.S. at 341.
36 We will not attempt to answer these questions in the first
37 instance. See, e.g., Yuanliang Liu v. U.S. Dep’t of Justice,
38 455 F.3d 106, 116 (2d Cir. 2006) (“Federal courts, of course,
39 do sometimes answer questions of first impression without
40 administrative guidance. But they need not do so in all
41 cases.”). Instead, we remand for the BIA to clarify its
4
1 decision and determine what findings, if any, the IJ had to make
2 about the possibility that Turkey or Jordan would return Baidis
3 to Israel and the relevance of such findings to the removal
4 order. If additional findings are necessary, the BIA may, of
5 course, remand to the IJ.
6 Baidis also challenges the IJ’s finding that he lied in his
7 naturalization proceeding for the purpose of obtaining U.S.
8 citizenship. Cancellation of removal requires, among other
9 things, that the alien has “been a person of good moral
10 character” during the ten-year period preceding his
11 application. 8 U.S.C. § 1229b(b)(1)(B). “No person shall be
12 regarded as, or found to be, a person of good moral character
13 who,” during that time, gave “false testimony for the purpose
14 of obtaining any benefits” under the I.N.A. 8 U.S.C.
15 § 1101(f)(6). This provision has no materiality requirement;
16 “it denominates a person to be of bad moral character on account
17 of having given false testimony if he has told even the most
18 immaterial of lies with the subjective intent of obtaining
19 immigration or naturalization benefits.” Kungys v. United
20 States, 485 U.S. 759, 780 (1988). We review the agency’s
21 determination that an alien made false statements with such
22 intent for substantial evidence. Medina v. Gonzales, 404 F.3d
23 628, 634 (2d Cir. 2005).
24 The record amply supports the agency’s finding that Baidis
25 lied for the purpose of obtaining citizenship. He lied on his
26 naturalization application and while under oath in his
27 naturalization interview. In the removal hearing, Baidis
28 admitted that at the naturalization interview, he was “trying
29 to give answers to have that application approved.” Together,
30 this is substantial evidence supporting the agency’s finding
31 that he gave false testimony for the purpose of obtaining
32 citizenship. 8 U.S.C. § 1101(f)(6). Logic also supports the
33 finding: to tell the truth during his naturalization interview
34 would have required Baidis to admit that he evaded inspection
35 at the border and lied to immigration officials about something
36 so basic as his name.
37
38
39
40
41
5
1 For the foregoing reasons, the petition for review is
2 GRANTED in part and DENIED in part, and this case is REMANDED
3 for further proceedings consistent with this order.
4
5 FOR THE COURT:
6 Catherine O’Hagan Wolfe, Clerk
6