Orlando Crespo Muriel v. U.S. Attorney General ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
December 16, 2005
No. 05-12791 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA Agency Nos. A97-205-827 & A97-205-828
ORLANDO CRESPO MURIEL,
CARMEN CRESPO,
MARCO A. TAVARES GALLEGO,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Order
of the Board of Immigration Appeals
_________________________
(December 16, 2005)
Before CARNES, HULL and PRYOR, Circuit Judges.
PER CURIAM:
Orlando Crespo Muriel (“Muriel”), his wife Carmen Crespo, and his stepson
Marco A. Tavares Gallego (collectively “petitioners”), seek review of the final
order of the Bureau of Immigration Appeals (“BIA”) affirming the decision of the
Immigration Judge (“IJ”), which denied their petitions for asylum, withholding of
removal, and for relief under the United Nations Convention Against Torture
(“CAT”) . After review, we dismiss the petition for review for lack of jurisdiction
to the extent it seeks review of the BIA’s February 10, 2005 final order. We deny
the petition to the extent it seeks review of the BIA’s April 19, 2005 order denying
petitioners’ motion for reconsideration.
I. BACKGROUND
Petitioners are natives and citizens of Columbia. After the Department of
Homeland Security sought their removal for overstaying their non-immigrant
visitors visas, petitioners filed applications for asylum and withholding of removal
and for CAT relief based on Muriel’s mistreatment at the hands of Revolutionary
Armed Forces of Colombia (“FARC”) guerillas for his political work with the
Liberal Party and his participation in health brigades.
After the asylum hearing, the IJ denied petitioners all relief and ordered their
removal. The IJ concluded that petitioners’ asylum claims were time-barred
because Muriel had not filed his asylum application within one year after he had
entered the United States, as required by INA § 208(a)(2)(D), 8 U.S.C. §
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1158(a)(2)(B), and had failed to show exceptional circumstances for his delay.
Specifically, Muriel entered the United States on June 16, 1997 and did not
complete his asylum application until April 21, 2003, almost six years later.
Additionally, as a basis for denying petitioners all requested relief, the IJ found that
Muriel’s testimony at the hearing was inconsistent with the detailed claims made in
his application.
The petitioners filed a notice of appeal to the BIA, arguing that they were
eligible for asylum and withholding of removal. On February 10, 2005, the BIA
issued its decision in which it agreed with the IJ’s determinations and dismissed
the appeal. Petitioners filed a motion for reconsideration, which the BIA denied on
April 19, 2005. Petitioners filed their petition for review with this Court on May
18, 2005.
II. DISCUSSION
A. February 10, 2005 Final Order
A petitioner must file a petition for review with this Court within thirty days
after the date of the final order of removal. 8 U.S.C. § 1252(b)(1). “Since the
statutory limit for filing a petition for review in an immigration proceeding is
‘mandatory and jurisdictional,’ it is not subject to equitable tolling.” Dakane v.
United States Att’y Gen., 399 F.3d 1269, 1272 n.3 (11th Cir. 2005) (citing Stone v.
INS, 514 U.S. 386, 405, 115 S. Ct. 1537, 1549 (1995)). The finality of a removal
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order is not affected by the filing of a motion to reconsider. Stone, 514 U.S. at
405, 115 S. Ct. at 1549.1
Here, the petition for review was filed May 18, 2005, more than thirty days
after the BIA’s February 10, 2005 affirmance of the IJ’s decision. Thus, we lack
jurisdiction to review the BIA’s February 10, 2005 decision.
B. April 19, 2005 Order Denying Motion for Reconsideration
We do have jurisdiction to review the BIA’s April 19, 2005 order denying
petitioners’ motion for reconsideration. Motions for reconsideration are disfavored
in removal proceedings. See INS v. Doherty, 502 U.S. 314, 323, 112 S. Ct. 719,
724 (1992). The decision to grant a motion for reconsideration lies within the
discretion of the BIA. 8 C.F.R. § 1003.2(a). We thus review the BIA’s denial of a
motion for reconsideration only for abuse of discretion. Assa’ad v. United States
Att’y Gen., 332 F.3d 1321, 1341 (11 th Cir. 2003). “Judicial review . . . is limited to
determining whether there has been an exercise of administrative discretion and
whether the matter of exercise has been arbitrary or capricious.” Garcia-Mir v.
Smith, 766 F.2d 1478, 1490 (11 th Cir. 1985) (quotation marks omitted).2
1
“We review subject matter jurisdiction de novo.” Garcia v. United States Att’y Gen.,
329 F.3d 1217, 1220 (11th Cir. 2003).
2
A motion for reconsideration filed with the BIA “shall specify the errors of law or fact
in the previous order and shall be supported by pertinent authority.” 8 U.S.C. § 1229a(c)(6)(C);
see also 8 C.F.R. § 1003.2(b).
4
Petitioners’ motion for reconsideration argued that the IJ and the BIA had
erroneously found discrepancies between Muriel’s hearing testimony and his
asylum application. The BIA’s final order noted that, in Muriel’s application, “the
respondent asserted that he participated in the health brigades in his native country,
but during testimony, the respondent asserted that his difficulties arose because he
was a construction worker in a United Nations project to build low-cost housing.”
To reconcile the two seemingly inconsistent statements, petitioners’ motion for
reconsideration pointed to Muriel’s testimony that he worked as a construction
worker and participated in the health brigades in his spare time.
In denying the motion, the BIA specifically considered the IJ’s conclusions
about the inconsistencies in Muriel’s testimony and his asylum application.
Moreover, the BIA acknowledged that the specific inconsistency noted in its prior
opinion was open to different interpretations, but then pointed to additional
inconsistencies between Muriel’s hearing testimony and his asylum application.3
In short, the BIA considered the consistency of Muriel’s testimony with his
application and determined, based on other inconsistencies and problems of proof,
3
Specifically, the BIA noted that Muriel was unable to provide the details at his hearing
that he had earlier supplied in his application and that he referred to his friend who had worked
with him on political campaigns and allegedly been killed by the FARC as Herman at the
hearing and as Jaime in his application. The BIA also noted that the documentation Muriel
presented at the hearing, namely the death certificate of a friend who had worked with Muriel in
politics in Columbia and letters showing that he had worked in construction and been a member
of the Liberal Party, did not support his claim that he was threatened by the FARC. Concluding
that the record still supported the IJ’s decision, the BIA refused to disturb its final order.
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that the IJ’s determination should stand. Thus, the BIA clearly did not abuse its
discretion in denying petitioners’ motion for reconsideration.
Petitioners’ motion for reconsideration also argued for the first time that the
one-year time bar for asylum applications violated the Supremacy Clause because
it was inconsistent with the Convention Related to the Protection of Refugees (“the
Refugee Convention”), a treaty to which the United States is a signatory. The BIA
refused to consider this argument because the BIA was without authority to rule on
the constitutionality of the INA. We conclude that the BIA properly refused to
consider petitioners’ constitutional argument as it did not have the power to
address their particular constitutional claim that sought to invalidate the one-year
time bar of 8 U.S.C. § 1158(a)(2)(B). See Sundar v. INS, 328 F.3d 1320, 1325
(11 th Cir. 2003) (noting that other circuits have stated in dicta that constitutional
challenges and some due process claims do not require exhaustion because the BIA
does not have the authority to adjudicate those claims); see also Castro-Garcia v.
United States Atty Gen., Nos. 04-12684, 05-13721, 2005 WL 3068097 at *4 (11 th
Cir. filed Nov. 16, 2005) (noting Sundar’s observation that some due process
claims do not require exhaustion, stating we have never determined which due
process claims require exhaustion and then determining that procedural due
process claims, as well as procedural errors argued in due process terms, must be
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raised before the BIA and exhausted as those claims involve administratively
correctable errors for which the BIA can provide a remedy).
C. Constitutional Challenges
This brings us to the last issue in this case: the petitioners’ constitutional
challenges to § 1158(a)(2)(B)’s one-year time bar for asylum applications. See 8
U.S.C. § 1158(a)(2)(B). On appeal, petitioners argue that they have an absolute
right to have their asylum claims heard under the Refugee Convention and that the
one-year time bar in § 1158(a)(2)(B) violates the Supremacy Clause. Having
concluded that the BIA was without the authority to address the petitioners’
constitutional challenge to § 1158(a)(2)(B), we first conclude that the petitioners
need not have exhausted their administrative remedies with respect to the claim
that § 1158's one-year bar violates the Supremacy Clause.
Although the petitioners need not exhaust their administrative remedies,
there is the separate question whether this Court is able to consider their
constitutional challenge. This Court certainly has jurisdiction to review
constitutional challenges in immigration cases. See Gonzalez-Oropeza v. United
States Att’y Gen., 321 F.3d 1331, 1333 (11 th Cir. 2003); REAL ID Act §
106(a)(1)(A)(iii), 8 U.S.C. § 1252(a)(2)(D). However, a sub-issue arises whether
such constitutional claims require a timely petition for review from the BIA’s final
order denying asylum, or, is it sufficient that the petitioners filed a timely petition
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for review from the BIA’s denial of their motion for reconsideration? In other
words, because the petition for review is timely at least as to one ruling by the BIA,
can this Court review petitioners’ constitutional claim?
We need not resolve this issue, however, because, even assuming that the
petitioners’ timely filed petition for review from the BIA’s denial of their motion
for reconsideration is sufficient to permit this Court to entertain their constitutional
claim, that constitutional claim clearly lacks merit. With regard to the Supremacy
Clause argument, the petitioners rely on the 1967 Protocol Relating to the Status of
Refugees. However, the 1967 Protocol, which incorporates the substantive
provisions of the Refugee Convention, is not self-executing. INS v. Stevic, 467
U.S. 407, 428 n.22, 104 S. Ct. 2489, 2500 n.22 (1984); see also Haitian Refugee
Ctr., Inc. v. Baker, 949 F.2d 1109, 1110 (11 th Cir. 1999). Therefore, the Refugee
Convention via the Protocol has no force of law and confers no enforceable rights
upon the petitioners in this case. See Haitian Refugee Ctr., Inc., 949 F.2d at 1110.
Therefore, any conflict with the Refugee Convention and the INA cannot render
the one-year time bar unenforceable against petitioners.4
PETITION DISMISSED IN PART, DENIED IN PART.
4
Muriel’s petition for review also raises for the first time equal protection and
substantive due process challenges to the one-year time bar. We do not discuss them because
they also clearly lack merit. See Hakeem v. INS, 273 F.3d 812, 816 (9th Cir. 2001) (due
process).
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