Ahmed v. Barr

973 F.3d 922

Raju AHMED, Petitioner

v.William P. BARR, Attorney General of the United States, Respondent

Nos. 18-3704/19-2368

United States Court of Appeals, Eighth Circuit.

Submitted: June 18, 2020

Filed: September 4, 2020

Rehearing and Rehearing En Banc Denied November 17, 2020

Raymond Reza Bolourtchi, Cofman & Bolourtchi, Ladue, MO, for Petitioner.

John Beadle Holt, Trial Attorney, Carl H. McIntyre, U.S. Department of Justice, Civil Division, Office of Immigration Litigation Ben, Washington, DC, for Respondent.

Before LOKEN and GRASZ, Circuit Judges, and CLARK,¹ District Judge.

CLARK, District Judge.

Petitioner Raju Ahmed, a citizen of Bangladesh, entered the United States on a student visa. While in the country, he was convicted of two aggravated felonies. When the Department of Homeland Security moved to deport Ahmed based on those convictions, Ahmed sought deferral of removal under the Convention Against Torture (CAT), 8 C.F.R. § 1208.16(c), claiming a fear of torture because he is a convert from Islam to Christianity. Finding that Ahmed had failed to show he was more likely than not to face torture if removed, the Immigration Judge denied his request for deferral and the Board of Immigration Appeals (Board) affirmed. Ahmed later moved the Board to reopen his case, claiming new evidence, and the Board denied his motion to reopen.

Ahmed petitioned this Court for review of the Board's decisions. We deny the petitions for review.

I. Background

Ahmed is a native and citizen of Bangladesh. He entered the United States on a non-immigrant student visa in 2000. In 2005, Ahmed, pleaded guilty to two felonies in Kansas: attempted aggravated burglary and attempted aggravated sexual battery. He was sentenced to 24 months in prison and 48 months of probation.

In 2006, the Department of Homeland Security issued Ahmed an administrative order of removal pursuant to section 238 of the Immigration and Nationality Act (INA). Section 238 provides that "[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable."

8 U.S.C. § 1227(a)(2)(A)(iii). The statute defines "aggravated felony" to include a "burglary offense for which the term of imprisonment is at least one year." 8 U.S.C. § 1101(a)(43)(G). Despite issuance of the final administrative order of removal in 2006, DHS did not enforce the order or remove Ahmed to Bangladesh, but released him subject to an Order of Supervision.

For the next twelve years, Ahmed continued to reside and work in the United States. In 2015, he married his wife. Together, the couple have two daughters, who are United States citizens.

In 2018, DHS moved to execute the final administrative order of removal. Before he was removed, Ahmed expressed a fear of persecution and torture if he was removed to Bangladesh because of his conversion from Islam to Christianity. An Immigration Judge conducted a merits hearing on Ahmed's application for relief from removal. Ahmed sought relief on two grounds: withholding of removal under INA section 241(b)(3), 8 U.S.C. § 1231(b)(3), and protection from removal under the CAT. Finding Ahmed was ineligible for withholding of removal under INA section 241(b)(3) because of his felony convictions, the Immigration Judge considered Ahmed's request for deferral of removal under the CAT. The Immigration Judge concluded that the evidence did not show Ahmed was more likely than not to be tortured if removed to Bangladesh, and thus denied his application for relief from removal under the CAT.

Ahmed appealed the Immigration Judge's decision to the Board of Immigration Appeals. The Board agreed with the Immigration Judge's conclusion that Ahmed did not meet his burden to show that he was more likely than not to suffer torture if removed, and dismissed the appeal. Ahmed then filed his first petition for review in this Court. While that appeal was pending, Ahmed filed a motion to reopen with the Board, claiming new evidence. The Board denied the motion to reopen, noting that Ahmed failed to explain why the newly-proffered evidence was unavailable at the time of his hearing, and finding that the new evidence was not likely to alter the Immigration Judge's decision. Ahmed petitioned this Court for review of the Board's denial of his motion to reopen, and we consolidated that petition with his first petition.

II. Discussion

At the outset, we note that the Supreme Court's recent decision in Nasrallah v. Barr , ––– U.S. ––––, 140 S. Ct. 1683, 207 L.Ed.2d 111 (2020) directly informs the scope of our review. Before Nasrallah , several circuits, including this one, held that 8 U.S.C. § 1252(a)(2)(C), sometimes known as the "criminal alien bar," applied to petitions for review of orders denying deferral under the CAT. See, e.g., Gallimore v. Holder , 715 F.3d 687, 690 (8th Cir. 2013). The criminal alien bar provides that: "no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed" a covered offense, including any aggravated felony. 8 U.S.C. §§ 1252(a)(2)(C) ; 1227(a)(2)(A)(iii). Accordingly, under this Circuit's pre- Nasrallah precedent, our jurisdiction to review orders denying deferral under the CAT was limited to "constitutional claims or questions of law." Cherichel v. Holder , 591 F.3d 1002, 1009 (8th Cir. 2010) (quoting 8 U.S.C. § 1252(a)(2)(D) ).

In Nasrallah , the Supreme Court held that an order denying deferral under the CAT is not a "final order of removal," and, therefore, the criminal alien bar does not preclude judicial review of a noncitizen's factual challenges to such an order. 140 S. Ct. at 1694. Thus, we have jurisdiction to consider Ahmed's factual challenges, as well as any colorable constitutional claims or questions of law raised by his petitions.

The Court reviews Ahmed's factual challenges under the substantial-evidence standard. Nasrallah , 140 S. Ct. at 1692. This review is "highly deferential." Id. "The agency's ‘findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.’ " Id. (quoting 8 U.S.C. § 1252(b)(4)(B) ); see also Ngugi v. Lynch , 826 F.3d 1132, 1136 (8th Cir. 2016) ("Under the substantial evidence standard, the agency's findings of fact must be upheld unless the alien demonstrates that the evidence he presented not only supports a contrary conclusion but compels it.") (emphasis in original). We review questions of law de novo .

Because the parties completed their briefing before the Supreme Court decided Nasrallah , Ahmed does not directly challenge the agency's factual determinations. However, Ahmed does argue that the Board and Immigration Judge committed legal error by giving inadequate weight to certain evidence. The Court will construe Ahmed's weight-of-the-evidence arguments as factual challenges and review them under the substantial-evidence standard. But we first address Ahmed's claims of legal error, which we review de novo .

A. Legal Challenges

Ahmed argues that the Board erred in adopting the Immigration Judge's findings and analysis. First, the Board does not commit legal error simply by adopting the factual findings or reasoning of the Immigration Judge. See Garcia v. Holder , 746 F.3d 869, 872 (8th Cir. 2014). Rather, in a case "where ‘the [Board] essentially adopted the [Immigration Judge's] opinion while adding some of its own reasoning, we review both decisions.’ " Id. (quoting Osonowo v. Mukasey , 521 F.3d 922, 926–27 (8th Cir. 2008) ). Second, Ahmed has not identified any error of law made by the Board or the Immigration Judge. The record shows that both the Immigration Judge and the Board set forth the correct legal standard for consideration of an application for deferral of removal under the CAT. Both correctly stated that Ahmed bore the burden to show that it was more likely than not he would be subject to torture if removed to Bangladesh. See 8 C.F.R. § 1208.16(c)(2). The Immigration Judge noted his responsibility to consider all relevant evidence, and explicitly stated that he considered all evidence in the record in its entirety, regardless of whether it is specifically mentioned in the decision. The Board correctly stated the elements of "torture" as set out in 8 C.F.R. § 1208.18(a). In sum, we find no legal error in the Board's adoption of the Immigration Judge's findings or analysis.

Ahmed next argues that the Board erred as a matter of law by failing to recognize that torture under the CAT may include acts in which the government is not an active participant. We disagree. The Board correctly stated the definition of torture, noting that it may include acts taken "with the consent or acquiescence ... of a public official," and citing the relevant regulation, 8 C.F.R. § 1208.18(a). See Hanan v. Mukasey , 519 F.3d 760, 764 (8th Cir. 2008) (rejecting claim that the Board "used the incorrect definition of acquiescence, especially when it cited to the provision containing the correct definition."). Accordingly, we find no legal error in the Board's application of the government acquiescence standard. Ahmed's contention that certain evidence shows the Bangladeshi government actually does acquiesce in torture is a factual challenge, which we address separately below.

Ahmed also argues that the Board and Immigration Judge erred by failing to consider all of the evidence in the record. "An allegation of wholesale failure to consider evidence" is a constitutional challenge that implicates due process. Hanan , 519 F.3d at 764. The record does not support Ahmed's claim that the Board or Immigration Judge failed to consider his submissions. As noted, the Immigration Judge explicitly stated that he considered all evidence in the record, whether or not mentioned in his decision. Further, "[t]he [Board] is entitled to a presumption of regularity," and "is not required by the Constitution to mention every piece of evidence that it considered." Sharif v. Barr , 965 F.3d 612, 624 (8th Cir. ...