Shazi v. Wilkinson

988 F.3d 441

Laith Shakir SHAZI, Petitioner

v.Monty WILKINSON, Acting Attorney General of the United States; David Pekoske, Acting Secretary, Dept. of Homeland Security, Respondents¹

No. 19-2842

United States Court of Appeals, Eighth Circuit.

Submitted: October 21, 2020

Filed: February 11, 2021

Herbert A. Igbanugo, Jason A. Nielson, Attorney, IGBANUGO PARTNERS, Minneapolis, MN, for Petitioner.

Peter B. Berg, U.S. IMMIGRATION & NATURALIZATION SERVICE, Bloomington, MN, Carl H. McIntyre, Craig Alan Newell, Jr., U.S. DEPARTMENT OF JUSTICE, Civil Division, Office of Immigration Litigation, Washington, DC, for Respondents.

Before BENTON, SHEPHERD, and KELLY, Circuit Judges.

SHEPHERD, Circuit Judge.

Laith Shakir Shazi, a native and citizen of Iraq, petitions for review of an order of the Board of Immigration Appeals (BIA) upholding the decision of an immigration judge (IJ) that terminated Shazi's withholding of removal status; denied his application for protection under the Convention Against Torture (CAT); and denied his motion to remand based on new evidence. For the following reasons, we grant the petition for review.

I.

Shazi is an Iraqi native and citizen born in a neighborhood of Baghdad, Iraq, on March 20, 1971. Shazi was a member of the National Iraqi Democrats, an organization that assisted the United States and allied forces in their effort to overthrow Saddam Hussein in the mid-1990s. Shazi aided the movement by taking photographs of and collecting information and intel on suspected biological weapon development sites in Baghdad. As a result of this experience, Shazi allegedly suffers from post-traumatic stress disorder (PTSD), anxiety, and depression. Subsequently, the Red Cross and the United States partnered to extract those assisting the American forces, including Shazi, and transport them ultimately to Guam. On or about October 23, 1996, Shazi was admitted to the United States in Guam as a parolee, and the former Immigration and Naturalization Service granted his application for asylum under 8 U.S.C. § 1158(a) on March 7, 1997.

Once in the United States, Shazi worked with a security firm to further assist American troops by teaching them Arabic and how to "blend in" and avoid danger in Iraq. His involvement ceased in 2003 when Saddam Hussein was killed. Shazi developed a criminal history beginning in 2007, when he was convicted of making terroristic threats and assault in the fifth degree. In 2011, Shazi was convicted of malicious punishment of a child and felony domestic assault. In response, the Department of Homeland Security (DHS) commenced removal proceedings against Shazi in 2012, charging him with removability pursuant to 8 U.S.C. § 1227(a)(2)(A)(ii), (iii), and (E)(i). The IJ sustained all the charges of removal based on the convictions but granted Shazi's application for withholding of removal.

In 2016, Shazi was convicted of making terroristic threats, in violation of Minn. Stat. § 609.713, subdiv. 1, and domestic abuse, in violation of Minn. Stat. § 518B.01, subdiv. 14(a). In 2018, DHS moved the immigration court to reopen Shazi's removal proceedings for the purpose of terminating his grant of withholding-of-removal status based on these convictions. The IJ granted the motion to reopen but continued the request to terminate withholding-of-removal status. Shazi responded by opposing the termination and, in the alternative, applying for CAT protection.

The IJ held a hearing on the matter and ultimately terminated Shazi's withholding-of-removal status and denied his application for protection under CAT. The IJ found that Shazi lacked credibility because his testimony contained numerous inconsistencies. The IJ found that Shazi's second conviction for making terroristic threats, in 2016, constituted a "particularly serious crime" under 8 U.S.C. § 1231(b)(3)(B)(ii), which barred withholding of removal. In doing so, the IJ rejected Shazi's argument that his mental health conditions mitigated the seriousness of the crime. The IJ reasoned that an individual's struggle with mental health is not to be considered in a particularly serious crime determination under Matter of G-G-S-, 26 I. & N. Dec. 339, 345 (BIA 2014). Finally, the IJ denied Shazi's application for deferral of removal under CAT because Shazi did not produce enough evidence to show a specific danger to himself, but instead showed only general countrywide violence that affects the Iraqi population as a whole.

Shazi appealed the IJ's decision to the BIA, arguing that the IJ's particularly serious crime finding was based on an inadequate consideration of Shazi's mental health condition at the time the offense was committed. Shazi contended that Matter of G-G-S- was an impermissible bar to mental health evidence based on the Ninth Circuit's decision in Gomez-Sanchez v. Sessions, 892 F.3d 985 (9th Cir. 2018). The BIA determined that an individual's mental health does not diminish the seriousness of the relevant conviction. The BIA explicitly rejected Shazi's reliance on Gomez-Sanchez because it arose out of the Ninth Circuit and was not controlling in Shazi's case. Shazi contemporaneously filed a motion to remand his claim for protection under CAT based on new evidence. The BIA found that Shazi failed to meet his burden of proof to be granted protection under CAT. While Shazi presented new evidence, the BIA disregarded it because Shazi did not establish why it was previously unavailable at the time of the IJ's decision. Thus, the BIA affirmed the IJ's decision on both grounds. This appeal followed.

II.

Shazi petitions this Court for review, arguing the BIA erroneously terminated his withholding of removal and denied him protection under CAT. Specifically, Shazi argues that the IJ and the BIA erred in (1) concluding that Shazi's conviction for making terroristic threats was a particularly serious crime, barring withholding of removal; (2) finding Shazi's testimony not credible; (3) concluding that Shazi failed to support his petition for deferral of removal under CAT; and (4) concluding that his newly presented evidence did not warrant remand. " ‘We generally review the BIA's decision as the final agency action,’ but where ‘the BIA essentially adopted the IJ's opinion while adding in some of its own reasoning, we review both decisions.’ " Sharif v. Barr, 965 F.3d 612, 618 (8th Cir. 2020) (citation omitted).

A.

Shazi first argues that the IJ and BIA erred in concluding that his conviction for terroristic threats constituted a particularly serious crime, barring withholding of removal. A noncitizen has two vehicles by which he can obtain withholding of removal— 8 U.S.C. § 1231 (statutory withholding of removal) and CAT—and the particularly serious crime bar prohibits both.² See 8 U.S.C. § 1231(b)(3)(B)(ii) ; 8 C.F.R. § 1208.16(d). Insofar as Shazi's arguments relate to his claim for statutory withholding of removal, "[o]ur jurisdiction is limited to constitutional claims and questions of law" because Shazi "is removable as a ‘criminal alien.’ " Constanza v. Holder, 647 F.3d 749, 753 (8th Cir. 2011) (per curiam); 8 U.S.C. § 1252(a)(2)(C)-(D). Whether the BIA applied the correct legal framework in its particularly serious crime determination is a question of law and reviewable even under our limited jurisdiction.³ See Tian v. Holder, 576 F.3d 890, 894-95 (8th Cir. 2009). "We review questions of law de novo but accord substantial deference to the BIA's interpretation of immigration statutes and regulations." Marambo v. Barr, 932 F.3d 650, 654 (8th Cir. 2019) (citation omitted). Specifically, we apply Chevron’s⁴ two-step analysis to the BIA's construction of the Immigration and Nationality Act. See Velasquez v. Barr, 979 F.3d 572, 576 (8th Cir. 2020).

"[T]he Attorney General may not remove an alien to a country if the Attorney General decides that the alien's life or freedom would be threatened in that country because of the alien's race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1231(b)(3)(A).⁵ However, this mandatory grant of withholding of removal does not apply "if the Attorney General decides that ... the alien, having been convicted by a final judgment of a particularly serious crime is a danger to the community of the United States." Id. § 1231(b)(3)(B)(ii) ; see also 8 C.F.R. § 1208.16(d). The phrase "particularly serious crime" is not defined, but "an aggravated felony (or felonies) for which the alien has been sentenced to an aggregate term of imprisonment of at least 5 years" is a particularly serious crime per se. 8 U.S.C. § 1231(b)(3)(B). Otherwise, the determination is made on a case-by-case basis and includes "a variety of factors and ... consideration of the individual facts and circumstances [of the conviction]." Marambo, 932 F.3d at 655 (alteration in original) (quoting Tian, 576 F.3d at 897 ).

"These factors include ‘the nature of the conviction, the circumstances and underlying facts of the conviction, the type of sentence imposed, and most importantly whether the type and circumstances of the crime indicate that the alien will be a danger to the community.’ " Id. (quoting Tian, 576 F.3d at 897 ). Although Shazi's conviction is not a particularly serious crime per se, the IJ and the BIA determined that his conviction fit the category based on the aforementioned factors.

Shazi first contends that the IJ and the BIA failed to consider whether Shazi would be a danger to the community and argues that the facts and circumstances of his conviction do not demonstrate that he is a future threat. However, we have recognized that the BIA's construction determining that the "proper focus ... is on the nature of the crime and not the likelihood of future serious misconduct" is reasonable, and we have afforded such construction deference. Tian, 576 F.3d at 897 (quoting In re N-A-M-, 24 I. & N. Dec. 336, 342 (BIA 2007) ). As such, "once an alien is found to have committed a particularly...