Hakim v. Holder, Jr., (1st Cir. 2010)

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United States Court of Appeals

For the First Circuit

No. 09-1692

JOHANNES HAKIM,

Petitioner,

v.

ERIC H. HOLDER, JR.,

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER OF

THE BOARD OF IMMIGRATION APPEALS

Before

Torruella, Circuit Judge,

Souter,

[1]

Associate Justice,

and Stahl, Circuit Judge.

    Randall A. Drew, with whom Wiggin & Nourie, P.A., were on

brief for petitioner.

    Greg D. Mack, Senior Litigation Counsel, U.S. Department of

Justice, Civil Division, Office of Immigration Litigation, with

whom Tony West, Assistant Attorney General, Civil Division, and

Terri J. Scadron, Assistant Director, were on brief for respondent.

July 9, 2010

         TORRUELLA, Circuit Judge. Johannes Hakim ("Hakim") seeks

review of the decision of the Board of Immigration Appeals ("BIA")

reversing the grant of applications for asylum under Section 208 of

the Immigration and Nationality Act ("INA") and for withholding of

removal under Section 241(b)(3) of the INA. Hakim contends that

the BIA erred when it determined that evidence of mistreatment he

experienced in his native Indonesia failed to rise to the level of

persecution within the meaning of the immigration laws. The

government counters that we lack jurisdiction because we have not

been presented with a final order of removal, and, in the

alternative, that the Attorney General's issuance of a final rule

on voluntary departure militates in favor of not finding a final

order of removal. After careful consideration, we decline for

prudential reasons to exercise jurisdiction in this case. Hakim's

petition is thus dismissed without prejudice.

I. Background

         A. Facts

[2]

         Hakim is an Indonesian citizen of Chinese ethnicity and

Christian faith. In February of 1996, Hakim, who was fourteen

years old at the time, was attacked by "a group of people" who

identified him as Chinese and robbed him. One of the men struck

Hakim with a block of wood, breaking his hand. Neither he nor his

parents reported the incident to the police, considering it a

"waste" to file a report because the police would see that they

were Chinese and would probably then ask them for money. Although

Hakim testified as to other events, the February 1996 incident was,

according to him, "the worst thing that happened" to him.

         Hakim left Indonesia in 2001 and, the following year,

applied for asylum, withholding of removal, and protection under

the Convention Against Torture ("CAT").

         B. Procedural History

         Hakim left Indonesia on September 26, 2001. The next day

he was admitted to the United States as a nonimmigrant B2 Visitor

for Pleasure with authorization to remain in the United States for

a temporary period not to exceed March 24, 2002. He overstayed,

and on September 24, 2002, Hakim submitted applications for asylum,

withholding of removal, and protection under the CAT to the

Immigration and Naturalization Service ("INS"). Hakim's

application was referred to the Immigration Court in Boston,

Massachusetts.

         On August 5, 2004, the Department of Homeland Security

("DHS") commenced removal proceedings against Hakim by filing a

Notice to Appear ("NTA") with the Immigration Court alleging he had

remained in the United States after March 24, 2002, without

authorization, and was subject to removal. See 8 U.S.C.

§ 1227(a)(1)(B). Hakim admitted the allegations contained in the

NTA, conceded that he was removable, and renewed his requests for

asylum, withholding of removal, and protection under the CAT.

         Hakim testified before the IJ on August 3, 2006, and, on

February 5, 2007, the IJ issued a decision granting his

applications for asylum and withholding of removal. The IJ

concluded that the evidence presented by Hakim warranted a finding

that he suffered past persecution in Indonesia. Given the finding

of past persecution and the DHS's inability to provide evidence

that conditions in Indonesia had changed, the IJ held that the

government had failed to meet its burden of proving that Hakim's

fears of future persecution were not well-founded. See 8 C.F.R.

§ 208.13(b)(1) (stating that once the applicant has demonstrated

past persecution, DHS has the burden of establishing by a

preponderance of the evidence either "a fundamental change in

circumstances" or the possibility of internal relocation).

However, because Hakim "failed to establish he would be detained

and subject to torture or that the government of Indonesia would

acquiesce in that harm being inflicted upon him[,]" the IJ denied

him protection under the CAT.

         The government appealed to the BIA, which issued an

opinion on April 24, 2009, reversing the IJ's grant of applications

for asylum and for withholding of removal. The BIA rejected the

IJ's conclusion that Hakim had established that he was a victim of

past persecution. The BIA explained that the mistreatment

inflicted on Hakim in the February 1996 robbery was

"reprehensible," but fell "outside the scope of the type of

mistreatment considered to be persecution," and that "the other

incidents of which he complained were [not] sufficiently severe,

either cumulatively or in isolation, [nor] sufficiently related to

an enumerated ground, to constitute persecution."

[3]

         Concluding that Hakim had failed to establish past

persecution, the BIA disagreed with the IJ's conclusion that he

should benefit from a presumption of future persecution. The BIA

found that Hakim "did not persuasively articulate any specific

basis on which he would be likely to be singled out for

persecution[,]" and there was insufficient evidence "to support a

conclusion that there is a pattern and practice of persecution

against Christians or ethnically Chinese individuals in Indonesia."

See also Decky, 587 F.3d at 113 ("We have repeatedly affirmed the

BIA's determinations . . . that there is no ongoing pattern or

practice of persecution against ethnic Chinese or Christians in

Indonesia.") (citation omitted). The BIA also held that Hakim

failed to present evidence demonstrating that he would not be able

to relocate to another part of Indonesia. Given these

determinations, the BIA concluded that Hakim failed to prove that

he should be granted asylum, and thus the more stringent

withholding of removal. As the IJ had not considered whether Hakim

was eligible for voluntary departure, the BIA remanded the case to

the IJ to make such a determination.

         The IJ scheduled for January 14, 2010, a hearing to

determine Hakim's eligibility for voluntary departure. On

December 31, 2009, Hakim filed a motion for continuance before the

IJ, which was granted on January 5, 2010. The IJ thus rescheduled

the hearing date for July 22, 2010. Hakim currently seeks, in this

Court, reversal of the BIA's decision on the merits.

II. Discussion

         A. Standard/Scope of Review

         Pursuant to 8 U.S.C. § 1252(d), we have jurisdiction to

review final orders of removal only if both of the following

conditions are met. First, "the alien [must have] exhausted all

administrative remedies available to the alien as of right." 8

U.S.C. § 1252(d)(1); see De Araujo v. Gonzales, 457 F.3d 146, 152

(1st Cir. 2006) ("This exhaustion requirement generally means that

the BIA must first review an IJ's determination of [removability]

before a petitioner may present his appeal to us.") (citation

omitted). Second,

another court [cannot have] decided the

validity of the order, unless the reviewing

court finds that the petition presents grounds

that could not have been presented in the

prior judicial proceedings or that the remedy

provided by the prior proceeding was

inadequate or ineffective to test the validity

of the order.

8 U.S.C. § 1252(d)(2). That is, we lack jurisdiction to consider

a petition raising arguments that a court has previously

"considered and rejected" in a prior proceeding. Paul v. United

States Dep't of Justice, 273 F. App'x 64, 65 (2d Cir. 2008); see

Gittens v. Menifee, 428 F.3d 382, 386 (2d Cir. 2005) (finding that

an alien's second petition for review would fail under § 1252(d)(2)

when "a federal court has already ruled on the merits of his . . .

argument").

         The INA defines an "order of [removal]" as "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 [removable], concluding that the

alien is [removable] or ordering [removal]."

[4]

8 U.S.C.

§ 1101(a)(47)(A) (emphasis added). Orders of removal become final

upon "(I) a determination by the [BIA] affirming such an order; or

(ii) the expiration of the period in which the alien is permitted

to seek review of such order by the [BIA,]" whichever is earlier.

8 U.S.C. § 1101(a)(47)(B).

         Without directly addressing 8 U.S.C. § 1101(a)(47), Hakim

argues that the BIA's order remanding to the IJ to resolve the

question of voluntary departure constitutes a final order of

removal. He contends that, according to 8 U.S.C. § 1252(d)(1), we

have jurisdiction because he has exhausted all administrative

remedies in pursuit of his applications for asylum and withholding

of removal, and another court has not decided the validity of the

order. Furthermore, he contends that the only issue being

considered on remand by the IJ is his eligibility for voluntary

departure, not further review of his asylum or withholding of

removal applications. In support of his argument, Hakim relies on

a number of sister circuit cases, including Alibasic v. Mukasey, in

which the Second Circuit held that "a BIA order denying relief from

removal and remanding for the sole purpose of considering voluntary

departure is a final order of removal that this Court has

jurisdiction to review." 547 F.3d 78, 83-84 (2d Cir. 2008) ("The

IJ's underlying finding of removability based on [the alien's]

concessions [of removability] still stands and . . . the BIA has

simply removed an impediment to the removal that was ordered by the

IJ.") (internal quotation marks omitted); accord Saldarriaga v.

Gonzales, 402 F.3d 461, 466 n.2 (4th Cir. 2005) ("[A] BIA order

denying relief from deportation, but remanding the case for

voluntary departure proceedings or other subsidiary determinations"

is a final order of removal that is "immediately appealable."); Del

Pilar v. U.S. Att'y Gen., 326 F.3d 1154, 1157 (11th Cir. 2003) (per

curiam) (finding that "the BIA's remand for the limited purpose of

permitting [petitioner] to designate a country of removal"

constituted a final order of removal); Castrejón-García v. INS, 60

F.3d 1359, 1361-62 (9th Cir. 1995) (finding that the BIA's order

reversing the grant of suspension and remanding to the IJ for a

determination of voluntary departure was a final order of removal);

Perkovic v. INS, 33 F.3d 616, 619 (6th Cir. 1994) ("We are aware of

no authority for the proposition that a [BIA] order rejecting an

asylum application is not a final order unless a formal order of

deportation has already been issued.").

         Despite the IJ having awarded asylum and withholding of

removal to Hakim, the government argues that the IJ did not issue

an order of removal, but merely noted that Hakim had conceded that

he was removable. But see Chupina v. Holder, 570 F.3d 99, 104 (2d

Cir. 2009) ("[A]n award of withholding of removal requires entry of

an underlying 'order of removal.'") (citation omitted). The

government further argues that the Attorney General's issuance in

2008 of a final rule amending the regulation regarding voluntary

departure militates in favor of finding that the BIA did not issue

a final order of removal. See Voluntary Departure: Effect of a

Motion to Reopen or Reconsider or a Petition for Review, 73 Fed.

Reg. 76,927, 76,937 (Dec. 18, 2008) (to be codified at 8 C.F.R.

§§ 1240-1241, as relevant 1240.26(i)). Under that new voluntary

departure regulation, effective as of January 20, 2009, "any grant

of voluntary departure shall terminate automatically upon the

filing of the petition [for review] and the alternate order of

removal[, which shall be entered upon granting a request made for

voluntary departure,] . . . shall immediately take effect." 8

C.F.R. § 1240.26(d), (i). The decisions of our sister circuits --

finding that a BIA order denying relief from removal and remanding

for voluntary departure is a final order of removal -- were issued

before this current voluntary departure regulation, and thus did

not take it into consideration.

         B. Voluntary Departure

         Voluntary departure is a discretionary form of relief.

Chi v. Holder, --- F.3d ---, 2010 WL 2089478 at *1 (1st Cir.

May 26, 2010). Voluntary departure is available (1) in lieu of or

prior to the completion of removal proceedings or (2) at the

conclusion of removal proceedings. 8 U.S.C. § 1229c(a)(1), (b)(1).

An IJ may grant voluntary departure at the conclusion of a removal

proceeding if she finds that: (i) "[t]he alien has been physically

present in the United States for [a] period of at least one year

preceding the date the [NTA] was served"; (ii) "[t]he alien is, and

has been, a person of good moral character for at least five years

immediately preceding the application"; (iii) "[t]he alien has not

been convicted of [an aggravated felony] and is not deportable [on

security grounds]"; and (iv) "[t]he alien has established by clear

and convincing evidence that the alien has the means to depart the

United States and has the intention to do so." 8 C.F.R.

§ 1240.26(c)(1). The Supreme Court has described this relief as

an agreed-upon exchange of benefits, much like

a settlement agreement. In return for the

anticipated benefit, including the possibility

of readmission, an alien who requests

voluntary departure represents that he or she

"has the means to depart the United States and

intends to do so" promptly. Included among

the substantive burdens imposed upon the alien

when selecting voluntary departure is the

obligation to arrange for departure, and

actually depart, within the 60-day period.

Dada v. Mukasey, 554 U.S. 1, 32 (2008) (citations omitted).

         The Supreme Court has not resolved the issue of whether

the federal courts of appeals have the authority to grant a motion

to stay the voluntary departure period pending consideration of a

petition for review on the merits. See id. at 18. Our circuit has

held that we have the authority "to suspend the running of an

unexpired voluntary departure period while a petition for judicial

review is pending[,]" Bocova v. Gonzales, 412 F.3d 257, 268 (1st

Cir. 2005), and while several of our sister circuits are in accord,

at least one disagrees. Compare Thapa v. Gonzales, 460 F.3d 323,

332 (2d Cir. 2006) (finding that the court may stay voluntary

departure pending consideration of a petition for review on the

merits), Obale v. Ashcroft, 453 F.3d 151, 157 (3d Cir. 2006)

(same), Lopez-Chavez v. Ashcroft, 383 F.3d 650, 654 (7th Cir. 2004)

(same), Rife v. Ashcroft, 374 F.3d 606, 616 (8th Cir. 2004) (same),

Nwakanma v. Ashcroft, 352 F.3d 325, 427 (6th Cir. 2003) (same), and

Himri v. Ashcroft, 344 F.3d 1261, 1262 (9th Cir. 2003) (same), with

Ngarurih v. Ashcroft, 371 F.3d 182, 194 (4th Cir. 2006) (finding

that the court may not stay the voluntary departure period pending

consideration of a petition for review). In response to the

divergent federal practice and pursuant to 8 U.S.C. § 1229c(e), the

Attorney General subsequently issued a final rule on December 18,

2008. See Voluntary Departure: Effect of a Motion to Reopen or

Reconsider or a Petition for Review, 73 Fed. Reg. at 76,937-38.

That rule amended the voluntary departure regulation, which now, in

part, provides that a grant of voluntary departure on or after

January 20, 2009, automatically terminates with the filing of a

petition for review. 8 C.F.R. § 1240.26(i).

         C. Analysis

         Assuming arguendo that we have before us a final order of

removal,

[5]

we still decline to exercise jurisdiction in this case

for prudential reasons. We thus need not address whether a BIA

order denying relief from removal and remanding for consideration

of voluntary departure is a final order of removal.

         On its face, the current voluntary departure regulation

reflects the Attorney General's intention to limit a petitioner's

eligibility for voluntary departure where the petitioner has sought

judicial review, and to ensure uniformity in the administration of

the immigration laws. The current voluntary departure regulation

has thus altered the decision-making process for a petitioner

interested in seeking judicial review of her petition: as of

January 20, 2009, she must elect either voluntary departure or

judicial review of her petition.

         The automatic termination provision of the current

regulation assumes a chronological order, i.e., that the grant of

voluntary departure precedes the filing of a petition for judicial

review. In the instant case, Hakim filed a petition for judicial

review before the IJ has been afforded the opportunity to determine

Hakim's eligibility for voluntary departure, and thus the

regulation does not directly address the case at hand. By

exercising jurisdiction in this case, we would be permitting Hakim

to circumvent the regulation by allowing him to seek both voluntary

departure and judicial review, thus hindering judicial economy and

denying the government the benefit of "a prompt and costless

departure." See Dada, 554 U.S. at 32-33. To prevent such a

result, we think it wiser, for prudential reasons, to remand the

case to the IJ so that she can decide whether to grant Hakim

voluntary departure. Cf. Liu v. United States Dep't of Justice,

455 F.3d 106, 116-17 (2d Cir. 2006) (concluding that, "as a matter

of discretion," it was "prudent and useful" to remand to the BIA to

resolve a question of first impression). If Hakim is granted

voluntary departure, he can at that point decide whether to comply

with the relevant departure provisions, 8 U.S.C. § 1229c(b), or

else to file a petition for judicial review of his applications for

asylum and withholding of removal.

III. Conclusion

         In sum, we will not review the merits of Hakim's claim

because we decline, for prudential reasons, to exercise

jurisdiction at this time. Accordingly, his petition seeking

review of the BIA's determination that he was not eligible for

asylum or withholding of removal is dismissed without prejudice.

         Dismissed.

Footnotes

[1] 'The Hon. David H. Souter, Associate Justice (Ret.) of the

Supreme Court of the United States, sitting by designation.

[2] 'These facts are drawn from the petitioner's testimony before the

Immigration Judge ("IJ"), which the IJ deemed "convincing[]." See

Decky v. Holder, 587 F.3d 104, 107 n.2 (1st Cir. 2009).

[3] 'In a claim for asylum, "the petitioner carries the burden of

proving that he qualifies as a refugee by showing either that he

has suffered past persecution or has a well-founded fear of future

persecution on the basis of 'race, religion, nationality,

membership in a particular social group, or political opinion.'"

Journal v. Keisler, 507 F.3d 9, 12 (1st Cir. 2007) (quoting 8

U.S.C. § 1101(a)(42)).

[4] 'See Calcano-Martínez v. INS, 533 U.S. 348, 350 n.1 (2001)(noting

that, in 1996, Congress passed the Illegal Immigration Reform and

Immigrant Responsibility Act, which replaced the term "deportation"

with "removal"). The definitions section of the INA has not been

revised to incorporate this change.

[5] 'As discussed previously, a number of our sister circuits have

held that a BIA order denying relief from removal and remanding for

consideration of voluntary departure is a final order of removal.

See Alibasic, 547 F.3d at 83-84; Saldarriaga, 402 F.3d at 466 n.2;

Del Pilar, 326 F.3d at 1157; Castrejón-García, 60 F.3d at 1361-62;

Perkovic, 33 F.3d at 619.

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