Ibrahim Husein v. Atty Gen USA ( 2011 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 11-1128
___________
IBRAHIM HUSEIN,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A096-694-060)
Immigration Judge: Margaret R. Reichenberg
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
October 7, 2011
Before: AMBRO, HARDIMAN and VAN ANTWERPEN, Circuit Judges
(Opinion filed: October 18, 2011)
_________
OPINION
_________
PER CURIAM
Section 237(a)(2)(A)(i) of the Immigration and Nationality Act (INA) makes
removable from the United States “[a]ny alien who - - (I) is convicted of a crime
involving moral turpitude committed within five years . . . after the date of admission,
and (II) is convicted of a crime for which a sentence of one year or longer may be
imposed.” 8 U.S.C. § 1227(a)(2)(A)(i). The Government charged Ibrahim Husein, a
Palestinian born in the West Bank1, as removable under that provision based on Husein’s
March 2009 conviction in New Jersey for theft by unlawful taking. An Immigration
Judge (IJ) sitting in Newark, New Jersey sustained the removal charge and ordered
Husein removed to Jordan.
According to the Notice to Appear, Husein: (1) was “admitted to the United
States at New York, New York on or about August 5, 2003 as a NONIMMIGRANT
(V2)” visitor; (2) adjusted his status to that of a lawful permanent resident on July 25,
2006; and (3) did not commit the theft underlying his criminal conviction until September
18, 2008, more than five years after his lawful entry into the country. Nevertheless, the IJ
was bound by then-controlling Board of Immigration Appeals (BIA) precedent holding
that the date an alien adjusts status can qualify as “the date of admission” for purposes of
sustaining a removal charge under INA § 237(a)(2)(A)(i). See In re Shanu, 23 I. & N.
Dec. 754 (2005). Since Husein committed the theft within twenty-six months of
adjusting status, the IJ concluded that he was removable under INA § 237(a)(2)(A)(i).
Husein, proceeding pro se, appealed.
In addition to his notice of appeal, Husein submitted to the BIA a nine-page letter-
1 Husein was born in June 1985. Until 1988, the U.S. State Department recognized
Jordanian sovereignty over the West Bank, though the area was technically controlled by
Israel following the Six-Day War in 1967. (AR 242, 254); see also Zahren v. Gonzales,
487 F.3d 1039, 1041 (7th Cir. 2007), reh’g granted and case remanded, 637 F.3d 698 (7th
Cir. 2011).
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brief. The brief was stamped “received” by the BIA Office of the Clerk on September
20, 2010. Appended to the brief were copies of two judicial opinions: Padilla v.
Kentucky, --- U.S. ---, 130 S. Ct. 1473 (2010), and Aremu v. DHS, 450 F.3d 578 (4th Cir.
2006). Notably, Aremu vacated the BIA’s decision in In re Shanu and held that where a
lawfully-admitted alien later adjusts status (and does not depart from the United States in
the interim), the “date of admission” language in INA § 237(a)(2)(A)(i) refers only to the
day the alien lawfully entered the United States.
On January 6, 2011, the BIA dismissed the appeal and declined to remand on the
basis of Husein’s pending state collateral attack proceedings. The BIA stated that “the
fact that the respondent is seeking post-conviction relief on the basis of Padilla does not
affect the finality of his conviction for immigration purposes unless and until it is
overturned by a criminal court.” In addition, the BIA noted that it was “not
unsympathetic to the humanitarian factors cited by the respondent and [ ] the remorse he
expresses for committing his crime,” but that those facts, “without more, [are]
insufficient to warrant the exercise of our discretionary authority to sua sponte remand
proceedings.” The BIA did not address Aremu or the underlying removal charge.
Husein timely filed this petition for review. By order March 9, 2011, we granted
his motion to stay removal, and deferred action on the Government’s motion to dismiss
the petition for review for lack of jurisdiction. In our order granting the stay, we cited In
re Alyazji, 25 I. & N. Dec. 397 (2011), which overruled In re Shanu in relevant part and
held that “a conviction for a crime involving moral turpitude triggers removability under
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section 237(a)(2)(A)(i) only if the crime was committed within 5 years after the date of
the admission by virtue of which the alien was then in the United States.” Id. at 397-98.
The parties then filed their briefs, and the matter is now ripe for adjudication.2
We have jurisdiction to review the BIA’s January 6, 2011 decision under 8 U.S.C.
§ 1252(a)(1)3, and conclude that a remand is warranted in order for the BIA to address
the adequacy of the underlying removal charge and, in doing so, to consider the impact of
new BIA precedent—In re Alyazji—on Husein’s removability. By appending the Aremu
opinion to his brief before the agency, the BIA was given sufficient notice that Husein
was reasserting his challenge to the applicability of INA § 237(a)(2)(A)(i). See Higgs v.
Att’y Gen., --- F.3d ---, 2011 WL 3715784, *4 (3d Cir. Aug. 25, 2011, No. 09-3128) (a
pro se alien petitioner has satisfied the exhaustion requirement “if he made some effort,
2 Neither party discussed in their briefs In re Alyazji. Nor did they discuss the merits of
Husein’s removal charge generally, save a stray assertion in Husein’s reply brief that
“[t]he record of conviction lacks to [sic] establish that this crime amounted to an
aggravated felony.” Nevertheless, we will not deem waived Husein’s challenge to the
underlying removal charge. See Forestal Guarani S.A. v. Daros Int’l., Inc., 613 F.3d 395,
403 n.11 (3d Cir. 2010) (“the waiver doctrine is founded on equitable principles and . . .
its enforcement is within our discretion”). Equity favors restraint in these circumstances
in order to eliminate the possibility that a pro se alien’s deportation will be tied solely to
his ignorance of an extremely complex area of law. See Baltazar-Alcazar v. INS, 386
F.3d 940, 948 (9th Cir. 2004) (“With only a small degree of hyperbole, the immigration
laws have been termed second only to the Internal Revenue Code in complexity. A
lawyer is often the only person who could thread the labyrinth”). Husein’s motion to file
his reply brief out of time is granted.
3 The Government’s motion to dismiss is denied. While we agree with the Government
that we lack jurisdiction to review the BIA’s refusal to remand sua sponte, see Pllumi v.
Att’y Gen., 642 F.3d 155, 159 (3d Cir. 2011), we do have jurisdiction to review the
BIA’s decision insofar as it upheld the IJ’s removal order, and insofar as questions of law
are implicated by the petition for review.
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however insufficient, to place the Board on notice of a straightforward issue being raised
on appeal”) (citation and internal quotations omitted); see also Joseph v. Att’y Gen., 465
F.3d 123, 126 (3d Cir. 2006) (noting our “liberal exhaustion policy,” and stating that “an
alien need not do much to alert the Board that he is raising an issue”). In making the
exhaustion inquiry, our precedent instructs that we focus on the nature of the notice
provided to the BIA by the alien’s submissions on appeal. Hoxha v. Holder, 559 F.3d
157, 160 (3d Cir. 2009). There can be no other logical explanation for Husein’s
submission of a copy of the opinion in Aremu, which vacated the BIA decision found to
be controlling by the IJ in Husein’s case, other than that Husein was challenging on
appeal the removal charge in the Notice to Appear.
Generally “we” are unable to review” issues that the BIA fails to address. Id. at
163 (citing INS v. Ventura, 537 U.S. 12, 15-17 (2002)). Therefore, we will grant
Husein’s petition for review, vacate the January 6, 2011 decision of the BIA, and remand
for further proceedings in order that the BIA may determine, in the first instance, whether
the removal charge in Husein’s case is tenable, especially given In re Alyazji.4
4 Husein’s motion for “bond redetermination” is dismissed. We agree with the
Government that “Husein’s detention is not within the scope of the instant petition for
review filed with this Court.” We also agree with the Government that issues related to
Husein’s immigration detention are properly the subject of a petition for writ of habeas
corpus, under 28 U.S.C. § 2241, filed in the appropriate federal district court. See, e.g.,
Diop v. ICE/Homeland Sec., --- F.3d ---, 2011 WL 3849739, *2 (3d Cir. Sept. 1, 2011).
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