Abedi v. Ashcroft , 82 F. App'x 141 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS December 5, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-60046
Summary Calendar
ISMAIL AHMAD ABEDI; NOUHA KHODR AGHA;
WAEL ABEDI; NIVINE ABEDI; RAYAN ABEDI;
RAED ABEDI,
Petitioners,
versus
JOHN ASHCROFT, U S ATTORNEY GENERAL,
Respondent.
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Petition for Review of an Order of the
Board of Immigration Appeals
BIA Nos. A77-246-777
A77-246-771
A77-246-774
A77-246-775
A77-246-776
A77-246-778
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Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Ismail Ahmad Abedi (“Abedi”), a stateless Palestinian and
native of Lebanon, his wife Nouha Khodr Agha, a citizen and
native of Lebanon, and their children, Wael Abedi, Nivine Abedi,
Rayan Abedi, and Raed Abedi, all stateless Palestinians and
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 03-60046
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natives of Lebanon, petition this court for review of the Board
of Immigration Appeals’ (“BIA”) affirmance of the Immigration
Judge’s (“IJ”) order denying Abedi’s requests for asylum,
withholding of removal, and voluntary departure. The other
petitioners’ claims are all dependent upon the resolution of
Abedi’s claims. When, as here, the BIA summarily affirms the
IJ’s decision without opinion, we review the IJ’s decision. See
Mikhael v. INS, 115 F.3d 299, 302 (5th Cir. 1997).
Abedi argues that the IJ’s denial of his request for
voluntary departure violated his due process rights. Abedi,
however, did not challenge the IJ’s denial of his request for
voluntary departure before the BIA. An alien’s failure to
exhaust an issue before the BIA serves as a jurisdictional bar to
our consideration of the issue. Wang v. Ashcroft, 260 F.3d 448,
452-53 (5th Cir. 2001). As the BIA had the power to address this
claim, it does not fall under the exception to the exhaustion
requirement for due process claims and we are is without
jurisdiction to consider it. See Goonsuwan v. Ashcroft, 252 F.3d
383, 389-90 & n.13 (5th Cir. 2001). Accordingly, regarding the
denial of Abedi’s request for voluntary departure, the petition
for review is DISMISSED for lack of jurisdiction.
Abedi argues that the IJ’s denial of his requests for asylum
and withholding of removal were not supported by substantial
evidence. Because the IJ’s finding that Abedi’s allegations of
past persecution and fear of future persecution were not credible
No. 03-60046
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was sufficient to support his ruling and because Abedi has not
shown that the record compels a contrary conclusion, we will not
substitute our judgement for that of the IJ with respect to his
credibility determination. See Chun v. INS, 40 F.3d 76, 78-79
(5th Cir. 1994). Because Abedi has not shown that he was
eligible for asylum, he has not shown that he has met the
stricter standards for eligibility for withholding of removal.
See Mikhael, 115 F.3d at 306 & n.10.
Abedi further argues that his case did not meet the BIA’s
requirements for issuance of an affirmance without opinion
pursuant to 8 C.F.R. § 1003.1(e)(4) and that the BIA’s use of
this summary affirmance procedure violated his due process
rights. The due process argument is without merit. See Soadjede
v. Ashcroft, 324 F.3d 830, 832-33 (5th Cir. 2003) (rejecting due
process challenge to a similar summary affirmance procedure set
forth in 8 U.S.C. § 1003(a)(7)). Because the decision of the IJ
was correct and did not raise novel or substantial factual or
legal questions, the decision met the criteria for a summary
affirmance pursuant to § 1003.1(e)(4). The remainder of the
petition for review is, therefore, DENIED.
DISMISSED IN PART; DENIED IN PART.