In Re: Musa Karim v. , 269 F. App'x 5 ( 2008 )

Not for Publication in West's Federal Reporter)
United States Court of Appeals
For the First Circuit
No. 07-1981
MUSA KARIM,
Petitioner,
v.
MICHAEL MUKASEY, ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Circuit Judge,
Selya, Senior Circuit Judge,
and Lipez, Circuit Judge.
Musa Karim on brief pro se.
Corey L. Farrell, Attorney, Department of Justice, Civil
Division, Terri J. Scadron, Assistant Director, and Jeffrey S.
Bucholtz, Acting Attorney General, on brief for respondent.
March 13, 2008
Per Curiam. Petitioner Musa Karim petitions for review
of the decision by the Board of Immigration Appeals (BIA)
dismissing his appeal from the decision of the Immigration Judge
(IJ) ordering him removed to Kenya for being an alien in violation
of his immigration status, pursuant to 8 U.S.C. § 1227(a)(1)(C)(i).
Karim contends that the BIA erred in rejecting his claim of U.S.
citizenship and his claims of violations of procedural due process
in his immigration proceedings. We deny the petition for review.
"We review the BIA's decisions under the 'substantial
evidence' standard, which means we will uphold the decision if it
is 'supported by reasonable, substantial, and probative evidence on
the record considered as a whole.' This is a deferential standard,
and we will reverse the BIA only if the evidence compels that
result." Attia v. Gonzales, 477 F.3d 21, 23 (1st Cir. 2007).
Karim's central claim is that the IJ and BIA improperly
shifted the burden of proving alienage to him and relied upon
evidence that was obtained as a result of the government's alleged
"egregious" and unconstitutional conduct in searching his home.
The record reveals, however, that the IJ properly relied upon
Karim's pleading, submitted in September 2005, in which he (through
counsel) admitted the factual allegations in the Notice to Appear
(NTA), including the allegation that he was not a United States
citizen. The pleading satisfied the government's burden. "[T]he
government need only establish the [individual's] identity and
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alienage to meet its burden on deportation. The burden then shifts
to the [individual] to show the time, place, and manner of entry in
order to defeat deportation." Navarro-Chalan v. Ashcroft, 359 F.3d
19, 22 (1st Cir. 2004).
Karmir argues that he should be permitted to withdraw
the concession in his pleading because he never specifically
authorized his attorney to concede the facts alleged in the NTA.
However, Kamir has not alleged that he did not authorize Attorney
Macarius to represent him at the September 29, 2005 hearing, in
which Kamir participated via televideo conferencing and at which
time the pleading was submitted without objection. "[A]ll that
is required for an attorney's concession to be binding on an
alien is the authorization of representation." Pietrzak v.
Mukasey, ___F.3d ___, (2d Cir. 2008) [2008 WL 142796, at *2].
Nor has Karim shown that his attorney engaged in the kind of
"egregious" conduct that might warrant releasing Karim from his
attorney's concessions. See id. Karim himself contends that he
only became aware that he was a United States citizen two months
before his February 8, 2007 hearing, long after the pleading was
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submitted.1 He has otherwise failed to allege that the pleading
contained false information.
In all events, the record supports the BIA's finding
that Karim, after claiming U.S. citizenship for the first time in
January 2007, provided "no evidence that he was born in the
United States." The additional evidence submitted to the BIA on
appeal, consisted only of the passport and death certificate for
Ruth Schaffner, without explanation of Karim's relationship to
Schaffner or the effect of that relationship upon his citizenship
status. Therefore, we conclude that the BIA supportably found
that such evidence did "not require a remand for its
consideration."
The BIA's rulings on Karim's remaining claims are fully
supported by the record. Karim argues that the IJ erred in re-
calendaring his case without conforming to the regulations that
govern re-opening of an immigration case. The record establishes
that the case was "administratively closed" in October 2005, and
"re-calendared" in November 2006. "Administrative closure is a
procedural convenience that may be granted if both parties to the
1
In light of Karim's pleading admitting alienage, it is
unnecessary to consider his claim that reliance upon his passport,
visa and other documents seized during the search of his apartment
violated his Fourth Amendment and due process rights. See Kandamar
v. Gonzales, 464 F.3d 65, 74 (1st Cir. 2006) (holding that any
error that occurred from allegedly unconstitutional seizure would
be harmless in light of untainted evidence of petitioner's
removability).
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removal proceedings agree, but it does not constitute a final
order. . . Rather, administrative closure of a case temporarily
removes a case from an immigration judge's calendar or from the
Board's docket." Lopez-Reyes v. Gonzales, 496 F.3d 20, 21 (1st
Cir. 2007)(emphasis added). The BIA properly found that the
Department of Homeland Security "was not required to meet the
requirements of a motion to reopen." And because the
administrative closure did not constitute a final order, Karim's
res judicata and double jeopardy claims lack merit.
The BIA properly ruled that the IJ did not err in
determining that Karim's applications for relief from removal
were abandoned after he failed to meet the extended deadline for
filing them. The only explanation Karim gave for his failure to
conform with the deadline was his claim of U.S. citizenship. He
requested a continuance to obtain documents to present to the
court. But he did not specify that the documents related to
applications for relief from removal. In the absence of a showing
by Karim of good cause, the IJ did not abuse his discretion in
failing to grant another continuance. See Alsamhouri v. Gonzales,
484 F.3d 117, 122 (1st Cir. 2007). As the BIA properly found,
Karim has never explained what evidence he would have presented
in support of his applications for relief. Therefore, he has
failed to show prejudice from the IJ's determination that the
applications were abandoned.
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Karim's remaining claims relating to evidentiary
rulings during his immigration proceedings are without merit.
"The Federal Rules of Evidence do not apply in [immigration]
proceedings, but the less rigid constraints of due process impose
outer limits based upon considerations of fairness and
reliability." Yongo v. INS, 355 F.3d 27, 30 (1st Cir. 2004).
Karim has not explained how being provided in advance with copies
of documents submitted into evidence by the government would have
made a difference in the outcome of his case. "It is beyond
peradventure that before a petitioner in an immigration case may
advance a procedural due process claim, he must allege some
cognizable prejudice fairly attributable to the challenged
process." Lattab v. Ashcroft, 384 F.3d 8, 20 (1st Cir. 2004). As
discussed above, the IJ appropriately relied upon Karim's
concession to the facts alleged in the NTA in determining that he
was removable as charged. To the extent that the IJ relied upon
Karim's conviction for marriage fraud, it was only in denying his
request for voluntary departure. "[B]y statute, this court lacks
authority to review a refusal to allow voluntary departure."
Karim v. Gonzales, 424 F.3d 109, 112 (1st Cir. 2005).
Finally, the record supports the BIA's finding that
there was "no evidence of improper conduct on the part of counsel
[for the government]" in Karim's immigration proceedings.
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The decision of the BIA dismissing Karim's appeal is
affirmed and the petition for review is denied.
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