Ibrahim v. Garland

19 F.4th 819

Ahmed Elsayed Mahm IBRAHIM, Petitioner,

v.Merrick GARLAND, U.S. Attorney General, Respondent.

No. 20-60936

United States Court of Appeals, Fifth Circuit.

FILED December 6, 2021

Paul Hugh Scott, Baton Rouge, LA, for Petitioner.

Michael Christopher Heyse, Trial Attorney, U.S. Department of Justice, Civil Division, Washington, DC, Stephen Finn, Office of Immigration Litigation, U.S. Department of Justice, Civil Division/OIL, Washington, DC, for Respondent.

Before King, Smith, and Haynes, Circuit Judges.

Jerry E. Smith, Circuit Judge:

Ahmed Ibrahim is an Egyptian national and lawful permanent resident of the United States. Several years ago, he sent a picture of his genitals to someone who identified herself as a thirteen- or fourteen-year-old girl. For that conduct, he pleaded guilty of violating Section 14:81 of the Louisiana Revised Statutes, which proscribes "Indecent behavior with juveniles." That plea led the Attorney General to institute removal proceedings. After a long and complex procedural history, the Board of Immigration Appeals ("BIA") ordered Ibrahim removed to Egypt. He petitions for review. Because any errors the BIA made were harmless, we deny the petition.

I.

Ibrahim committed his crime in June 2016. Later that year, Louisiana charged him with "Computer-aided solicitation of a minor" under Section 14:81.3 of the Louisiana Revised Statutes. Ibrahim ultimately avoided a trial on that charge by submitting a guilty plea in August 2017. Importantly, however, he pleaded guilty of committing a different crime—"indecent behavior with a juvenile" under Section 14:81—for which he received a suspended sentence of five years at hard labor and was required to register as a sex offender.

Shortly thereafter, the Attorney General took Ibrahim into custody and instituted removal proceedings. Based on his Section 14:81 plea, the government alleged that Ibrahim had been convicted of an "aggravated felony" and a "crime of child abuse"—thus making him removable under 8 U.S.C. § 1227(a)(2)(A)(iii) and (E)(i), respectively.

Ibrahim's bond hearing and initial removal hearing were held on the same day in late October before the same immigration judge ("I.J."). That is when the first error relevant to this petition occurred. During the bond hearing, the government introduced evidence of Ibrahim's Section 14:81 plea in the form of criminal-court minutes. Under immigration regulations, bond proceedings and removal proceedings are supposed to be separate from one another.¹ So, the government should have formally resubmitted the criminal-court minutes at the start of the removal hearing, but it never did (probably because the removal hearing directly followed the bond hearing, and the minutes had been introduced during the bond hearing). As a result, based on the criminal-court minutes that hadn't been formally introduced into the record, the I.J. found that Ibrahim had been convicted of violating Section 14:81.² No one caught or objected to that mistake.³ Relying on that finding, the I.J. sustained both charges of removability.

Ibrahim then submitted applications to adjust his status under 8 U.S.C. § 1255(a) and waive his inadmissibility under 8 U.S.C. § 1182(h). But when he did not submit the necessary paperwork on time, another I.J. declined to grant him a continuance and denied both applications. Because the aggravated-felony charge rendered Ibrahim ineligible for voluntary departure, that I.J. ordered him removed to Egypt.

Ibrahim appealed, asking the BIA to grant him a continuance and remand for reconsideration of his applications for relief from removal. But although he also requested the BIA to review the aggravated felony charge, his appeal never mentioned the child-abuse charge.

The BIA reversed and remanded to allow Ibrahim another chance to submit his paperwork and applications for relief. It also instructed the I.J. to reconsider its decision that Ibrahim had been convicted of an aggravated felony based on Esquivel-Quintana v. Sessions , ––– U.S. ––––, 137 S. Ct. 1562, 198 L.Ed.2d 22 (2017).

On remand, Ibrahim disputed the aggravated-felony charge but also sought to relitigate the child-abuse charge. A new I.J. suggested that Ibrahim would be unlikely to revisit the child-abuse charge but encouraged him to make arguments about it in his next filings. In response, the Attorney General brought an additional charge of removability, alleging that Ibrahim had committed a "crime involving moral turpitude" ("CIMT") and was therefore removable under 8 U.S.C. § 1227(a)(2)(A)(i). After briefing, the I.J. rejected the aggravated-felony charge based on Esquivel-Quintana and sustained the CIMT charge. The I.J. did not address the child-abuse charge—likely because Ibrahim's briefs failed to analyze it and mentioned it only in passing.

Next, yet another I.J. stepped in to adjudicate Ibrahim's applications for relief after he finally had submitted the necessary paperwork. At a hearing on those applications, Ibrahim took the stand to try to establish that he had good moral character despite his conviction. During his sworn testimony, he confessed that he had sent an image of his genitals to a girl who said she was thirteen or fourteen. He also admitted that he had pleaded guilty of "indecent behavior with a juvenile"—a crime under Section 14:81. His attorneys conceded the same in a brief on his behalf, as they had in other documents since the start of his case.

In addition to deciding Ibrahim's applications for relief, however, the new I.J. also revisited the removability decisions made by his predecessor. That I.J. noticed the mistake with the introduction of the criminal-court minutes and observed they should not have been considered in Ibrahim's removal proceedings. Based on that observation, the I.J. found the Attorney General had not proven Ibrahim's Section 14:81 conviction and, therefore, had not established, by clear and convincing evidence, that Ibrahim was removable. As alternative grounds for the decision, the I.J. ruled that Ibrahim's conviction did not qualify as an aggravated felony or a CIMT⁴ and that his applications for relief from removal should be granted. Even so, the I.J. entirely failed to mention or address the child-abuse charge that had been sustained against Ibrahim.

The Attorney General appealed. As relevant here, he contended that Ibrahim's Section 14:81 conviction had been established by his testimony and the briefs submitted by his attorneys. The Attorney General also asserted that the I.J. had erred in terminating removal proceedings because Ibrahim was still removable based on the child-abuse charge. In opposition, Ibrahim asked the BIA to sustain the I.J.'s determination that the Attorney General had not satisfied his "evidentiary burden of proving [Ibrahim] was convicted of any crime by not submitting documents." Ibrahim also stated that "he adopt[ed] the reasoning stated in the Immigration Judge's decision" on the aggravated felony and CIMT issues. But even though Ibrahim was aware that a child-abuse charge had been sustained, he did not mention the charge to the BIA or ask that agency to review it.

The BIA reversed. On the evidentiary issue, it conceded that Ibrahim's criminal-court minutes had not been properly introduced. Even so, the BIA overturned the decision of the I.J. because Ibrahim "ha[d] admitted in multiple briefs and during his testimony that he pled guilty to violating Louisiana Revised Statutes § 14:81." On the removability issue, the BIA held that Ibrahim was removable because another I.J. had previously found that he had committed a crime of child abuse; in its view, that finding was the law of the case and could not be revisited. Finally, the BIA decided that Ibrahim's applications for relief should not be granted because he did not qualify for a favorable exercise of discretion. Accordingly, it ordered Ibrahim removed to Egypt.

This petition followed.

II.

Ibrahim contests two aspects of the BIA's decision.

First , he claims that the BIA erroneously determined that his testimony and his attorney's statements established that he was convicted of violating Section 14:81. According to him, immigration regulations permit the government to use documentary evidence only to prove an alien's criminal conviction. He also claims that relying on his testimony violated due process because it was not probative enough to be admissible and that the BIA could not use his attorney's briefs as evidence of his conviction. And in the alternative, Ibrahim maintains those sources of information are not reliable enough to establish his conviction by clear and convincing evidence.⁵

Second , Ibrahim says that the BIA erroneously held that his removability for the child-abuse charge was the law of the case. He claims that couldn't be true, given that the BIA never ruled on that question itself or prohibited an I.J. from revisiting it on remand.

A.

Before we can address the merits of those issues, however, we must confirm they have been exhausted. If not, we are without jurisdiction. Cruz Rodriguez v. Garland , 993 F.3d 340, 345 (5th Cir. 2021) (citing 8 U.S.C. § 1252(d)(1) ). The government claims that Ibrahim did not exhaust the issues before us. It observes that Ibrahim never specifically objected to the absence of the criminal-court minutes from the record. It also notes that before the BIA, Ibrahim never contested his removability for committing a crime of child abuse. All that is true. Even so, most of Ibrahim's claims have been exhausted.

Ibrahim's claim that the government did not prove his Section 14:81 conviction by clear and convincing evidence has been exhausted. "[I]f the BIA deems an issue sufficiently presented to consider it on the merits, such action by the BIA exhausts the issue as far as the agency is concerned ...." Mirza v. Garland , 996 F.3d 747, 753 (5th Cir. 2021) (quoting Lopez-Dubon v. Holder , 609 F.3d 642, 644 (5th Cir. 2010) ). And that's the case even if the government, not...