Amir Vana v. Attorney General United States ( 2019 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 18-2090
_____________
AMIR VANA,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
_______________
On Petition for Review of an Order of the
United States Department of Justice
Board of Immigration Appeals
(BIA No. A078-492-675)
Immigration Judge: Hon. Rosalind Malloy
_______________
Submitted Under Third Circuit LAR 34.1(a)
January 22, 2019
Before: JORDAN, KRAUSE, and ROTH, Circuit Judges
(Filed May 24, 2019)
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OPINION*
_______________
*
This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7, does
not constitute binding precedent.
JORDAN, Circuit Judge.
Amir Vana petitions for review of the Bureau of Immigration Appeals (“BIA”)’s
denial of his motion to reopen. We will deny his petition in part and dismiss it in part for
lack of jurisdiction.
I. BACKGROUND
This is not the first time that Vana has appeared before us. In 2009, we considered
his petition for review of the order of removal in the proceedings he now seeks to reopen.
Vana v. Att’y Gen., 341 F. App’x 836, 836-39 (3d Cir. 2009) (per curiam). Accordingly,
we start with the facts as laid out in our previous opinion:
Vana is a citizen of Israel who entered the United States on a visitor’s
visa in 1993 and stayed beyond the six-month period. In June 2000, he was
placed in removal proceedings. In December 2000, the immigration judge
(IJ) found Vana removable for overstaying his visa, denied voluntary
departure, and ordered him removed to Israel. In November 2000, during the
pendency of his removal proceedings, Vana pled guilty to making false
statements on a United States passport application, a violation of 18 U.S.C.
§ 1542; he was sentenced in 2001. During the pendency of his BIA appeal,
Vana’s wife, a United States citizen, filed an I–130 petition on Vana’s behalf,
which was approved. In 2002, the BIA granted Vana’s motion to remand the
removal proceedings for consideration of Vana’s application for adjustment
of status.
On remand, the Government charged Vana with additional grounds of
removability. After protracted proceedings that included an appeal to the
Board and a remand to Immigration Court, the IJ determined that the
Government had proved Vana’s removability by clear and convincing
evidence. Specifically, the IJ found that Vana had stayed in the United States
beyond the time allowed by his visitor’s visa and that he knowingly and
willingly attempted to obtain a United States passport under a false name, a
false birth date and place of birth (in the United States), and false social
security number. The IJ pretermitted Vana’s application for adjustment of
status, finding that he was statutorily ineligible .… Vana appealed the denial
of his request for adjustment of status; the BIA adopted and affirmed the IJ’s
decision. Vana filed a timely petition for review.
2
Id. at 837. We denied that petition. Id. at 837, 839.
Despite all of that, Vana was not removed, and, eight years later, he filed a motion
with the BIA to reopen his removal proceedings. He did so to seek asylum, arguing that
he would be perceived in Israel as having an Arab nationality, given his Yemeni heritage,
and that he reasonably feared persecution on that ground. He alleged that his asylum
claim was based upon changed country conditions in Israel arising after the IJ ordered
him removed, rendering his motion timely. With his motion, Vana submitted a variety of
documents, including his declaration and over 600 pages of country reports and similar
evidence (the “country conditions evidence”). Vana also requested that the BIA reopen
sua sponte on the grounds that he would be persecuted in Israel, that he has significant
ties to the United States, and that his removal would work a severe hardship upon his
wife and children, who are U.S. citizens.
The BIA denied the motion to reopen.1 As to the asylum portion of the motion, it
observed that Vana’s motion was untimely unless he could proffer material evidence
making out a “prima facie case for a grant of relief” and showing “changed circumstances
arising in the country of nationality[.]” (A.R. at 3.) The BIA then denied the motion for
three reasons. First, it said that Vana did “not establish … a prima facie asylum case”
because “[t]here is no evidence that he faces an individualized risk of persecution”; “[t]he
evidence (including incidents of violence) is insufficient to show a pattern or practice of
persecution of Israeli citizens of imputed Arab nationality”; “Arab citizens are 20 percent
1
The BIA also denied Vana’s motion for a stay of removal, but that motion is not
at issue here.
3
of Israel’s population, meaning that more than 1 million live in Israel without
persecution”; and “[r]eports of inequalities adversely affecting the Arab citizens are not
shown to amount to persecution.” (A.R. at 3-4.) Second, it determined that Vana had
failed to show “materially changed country conditions in Israel” because he did “not
make the required comparison of relevant country conditions or circumstances in Israel in
2006, the time of [his] hearing, with conditions at the time of filing the present motion to
reopen.” (A.R. at 4.) Third, it decided that “[r]eopening, even if otherwise warranted,
would be denied in the exercise of discretion due to [Vana’s] false claim of citizenship.”
(A.R. at 4.) As to the request to reopen sua sponte, the BIA ruled that no “exceptional
situation” was present that would warrant reopening.2 (A.R. at 4.)
Vana has timely petitioned for review.
II. DISCUSSION3
In his petition, Vana contends that he made out a prima facie case of asylum
eligibility, that he showed changed country conditions, and that there are exceptional
circumstances that support sua sponte reopening. We conclude to the contrary that Vana
has not made out a prima facie case of asylum eligibility and that we lack jurisdiction to
2
The BIA also noted that Vana had not met the standards for reopening to seek
withholding of removal or protection under the Convention Against Torture. To the
extent that Vana sought such relief before the BIA, he does not challenge the BIA’s
conclusions, and we need not address them. Garcia v. Att’y Gen., 665 F.3d 496, 502 (3d
Cir. 2011).
3
The BIA had jurisdiction under 8 C.F.R. § 1003.2(a). We have jurisdiction
pursuant to 8 U.S.C. § 1252(a), except, as discussed below, as to the issue of sua sponte
reopening.
4
review the BIA’s decision not to reopen sua sponte. That resolves the case, so we need
not address his remaining arguments.
First, as to Vana’s challenge to the BIA’s denial of his motion to reopen to seek
asylum, we review such a denial for abuse of discretion, and “we give the BIA’s decision
broad deference and generally do not disturb it unless it is ‘arbitrary, irrational, or
contrary to law.’” Lin v. Att’y Gen., 700 F.3d 683, 685 (3d Cir. 2012) (citation omitted).
Our review of the factual findings underlying that decision, including whether the
evidence is sufficient to support the elements of a prima facie case of eligibility for relief,
is for substantial evidence. Sevoian v. Ashcroft, 290 F.3d 166, 174, 177 (3d Cir. 2002).
“[W]e must uphold findings of fact unless the record evidence compels a contrary
finding.” Yuan v. Att’y Gen., 642 F.3d 420, 425 (3d Cir. 2011).
“Although a motion to reopen ‘must be filed no later than 90 days after the date on
which the final administrative decision was rendered in the proceeding sought to be
reopened,’ the 90-day limitation does not apply if the movant seeks reopening [to seek
asylum] ‘based on changed circumstances arising in the country of nationality or in the
country to which deportation has been ordered, if such evidence is material and was not
available and could not have been discovered or presented at the previous hearing.’”4
Zheng v. Att’y Gen., 549 F.3d 260, 265 (3d Cir. 2008) (citations omitted). That timing
exception requires the movant to establish a prima facie case of eligibility for asylum. Id.
4
Vana’s motion undisputedly was filed outside the 90-day window.
5
Consequently, we first examine the standards governing eligibility for asylum and, next,
what constitutes a prima facie case of asylum eligibility.
To qualify for asylum, an alien must establish “that [he] is ‘unable or unwilling to
return to, and is unable or unwilling to avail himself … of the protection of, [his] country
because of [past] persecution or a well-founded fear of [future] persecution on account
of[,]’” inter alia, nationality. Garcia v. Att’y Gen., 665 F.3d 496, 503 (3d Cir. 2011)
(citations omitted). Although there is no statutory definition of persecution, “we have
explained that the term does not encompass all forms of unfair, unjust, discriminatory, or
unlawful treatment[.]” Huang v. Att’y Gen., 620 F.3d 372, 380 (3d Cir. 2010). Rather,
“[p]ersecution ‘is an extreme concept[,]’” Jarbough v. Att’y Gen., 483 F.3d 184, 191 (3d
Cir. 2007) (citation omitted), “cover[ing] only severe humanitarian mistreatment, such as
‘death threats, involuntary confinement, torture,’” Huang, 620 F.3d at 380 (citation
omitted), or “economic restrictions so severe that they constitute a real threat to life or
freedom[,]” Shardar v. Att’y Gen., 503 F.3d 308, 312 (3d Cir. 2007) (citation omitted).
Furthermore, the acts at issue must be “committed by the government or forces the
government is either unable or unwilling to control.” Lie v. Ashcroft, 396 F.3d 530, 537
(3d Cir. 2005) (citation and internal quotation marks omitted). A well-founded fear of
persecution “include[s] both subjective and objective aspects[.]” Huang, 620 F.3d at 381.
“The objective component of the analysis requires the alien to show that a reasonable
person in his position would fear persecution, either because he ‘would be individually
singled out for persecution’ or because ‘there is a pattern or practice in his home country
of persecution’ against a group of which he is a member[,]” id. (citation omitted), i.e., a
6
group “similarly situated” to the alien that the alien has “establishe[d] his … own
inclusion in, and identification with,” 8 C.F.R. § 1208.13(b)(2)(iii). An individualized
risk of persecution is one that is, at minimum, “more severe than that faced by” others,
and a “pattern or practice” of persecution is persecution that is “systemic, pervasive, or
organized.” Lie, 396 F.3d at 537 (citation omitted). A fear of persecution is only
objectively reasonable if the evidence shows that the persecution anticipated is a
“reasonable possibility.” Shardar, 503 F.3d at 313 (citation omitted).
To raise a prima facie case of asylum eligibility, “the applicant must produce
objective evidence showing a reasonable likelihood that he can establish [that he is
entitled to relief].” Id. (citation and internal quotation marks omitted). In other words, he
must “show[] a realistic chance that [he] can at a later time establish that asylum should
be granted.” Id. (citation omitted).
Vana has not made out a prima facie case of asylum eligibility on the ground of
his imputed Arab nationality.5 Nothing in the record demonstrates that he “would face an
individualized risk of persecution any more severe than that faced by” the general Arab
population in Israel, and, thus, he has not established that he would be singled out for
persecution. Lie, 396 F.3d at 537.
Vana likewise cannot show a pattern or practice of persecution of Arab nationals.
Nothing in Vana’s declaration supports such a finding; it only cites a few isolated
5
The record does not suggest that Vana has suffered past persecution. We
therefore must assess whether, absent such a showing, Vana has established a prima facie
case of a well-founded fear of future persecution.
7
instances of past discrimination against Vana and his family in Israel and notes that, after
Vana came to the United States, he “began to fear going back home” due to “hearing
stories from friends back home about the division between people of [his] background
and others[.]” (A.R. at 93.) That is far from the “severe humanitarian mistreatment”
necessary to be classified as persecution, let alone a pattern or practice thereof. Huang,
620 F.3d at 380.
The voluminous country conditions evidence also does not show any pattern or
practice of persecution of Arabs. That evidence, sad though it may be, indicates only that
Arabs in Israel face, or are alleged to face, various forms of social, economic, legal,
political, and institutional discrimination and inequality, and that several government
actions have countered, with varying degrees of effectiveness, some of that
discrimination and inequality. All persecution is unjust, but not all injustice amounts to
persecution.
There is evidence of attacks against Arabs in Israel, but those attacks were limited
to discrete instances or historical events and were often investigated or addressed by the
government. Moreover, the clearest example of those attacks – described as an incident
of police violence against Arabs while they were being attacked by Jewish citizens during
a period when police had failed to protect Arabs from attacks on several occasions –
occurred in October 2000, almost 20 years ago, and a Commission of Inquiry was
established to examine the violence. That evidence does not suggest present “systemic,
pervasive, or organized” persecution. Lie, 396 F.3d at 537 (citation omitted); see also
8
Huang, 620 F.3d at 380 (describing persecution); Jarbough, 483 F.3d at 191 (same);
Shardar, 503 F.3d at 312 (same).
The country conditions evidence also discusses Israel’s treatment, or alleged
mistreatment, of specific sub-groups of its Arab population, such as Arab protestors (or
suspected protestors), Arab politicians and activists, Arabs perceived as expressing
political opinions in conflict with Israeli law or national security, Arab journalists,
Palestinians,6 Bedouins, and commonly Arab religious groups. Such evidence does not
support a pattern or practice of persecution here because, even assuming a pattern or
practice of persecution of those sub-groups, they are not “similarly situated” to Arabs in
Israel generally; they possess traits that may render them more likely to experience
mistreatment. 8 C.F.R. § 1208.13(b)(2)(iii)(A). Likewise, the evidence discusses Israel’s
6
In a section of his brief not addressing the asylum claim, Vana seems to assert
that he has a Palestinian imputed nationality. If that is his assertion, it is new. His
comments to the BIA emphasized more broadly that imputed Arab nationality was the
basis of his claim. In light of that, we lack jurisdiction to consider it. 8 U.S.C.
§ 1252(d)(1). If an alien fails to raise an issue before the BIA, he has not exhausted his
administrative remedies as to that issue, which strips us of jurisdiction over it. Cadapan
v. Att’y Gen., 749 F.3d 157, 159 (3d Cir. 2014). The exhaustion requirement is not
onerous, but the BIA must have “sufficient information … to put it on notice of the issue
being raised.” Liao v. Att’y Gen., 910 F.3d 714, 718 (3d Cir. 2018) (citation omitted).
Here, the BIA was not on notice that it had to consider the issue of imputed Palestinian
nationality as a ground for asylum.
9
actions toward Arabs and Palestinians in the occupied territories,7 but such persons are
not necessarily situated similarly to other Arabs in Israel. Id.
Because none of Vana’s arguments suggest persecution, we conclude that he has
not made out a prima facie case of eligibility for asylum, and the BIA did not err in so
ruling.
Turning to Vana’s assertion that the BIA incorrectly denied his motion to reopen
sua sponte on the ground that he did not face exceptional circumstances, a jurisdictional
problem immediately arises. We generally do not have jurisdiction to review denials of
motions to reopen sua sponte. Park v. Att’y Gen., 846 F.3d 645, 651 (3d Cir. 2017).
Although there are limited exceptions to that rule, id. at 651-54, Vana does not invoke
them, and, in any event, nothing suggests that an exception might apply. Accordingly,
we cannot consider the issue.
III. CONCLUSION
For the foregoing reasons, we will deny Vana’s petition in part and dismiss it in
part for lack of jurisdiction.
The term “occupied territories” has been used historically by the Department of
7
State to refer to “the West Bank, Gaza Strip, Golan Heights, and East Jerusalem[,]” and it
is the term used in the record here. (A.R. at 670.)
10