Hamid, Akram Q. v. Gonzales, Alberto R. ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 04-1600 & 04-2013
AKRAM QASSIM HAMID,
Petitioner,
v.
ALBERTO R. GONZALES,
Attorney General of the United States,
Respondent.
____________
Petitions for Review of Orders of
the Board of Immigration Appeals.
No. A77-983-490.
____________
ARGUED NOVEMBER 17, 2004—DECIDED JANUARY 31, 2005
AMENDED AUGUST 2, 2005
____________
Before COFFEY, MANION, and ROVNER, Circuit Judges.
COFFEY, Circuit Judge. Akram Hamid, a Palestinian
resident of Syria, pled guilty to charges of conspiring to
defraud and to steal. When deportation proceedings were
instituted against him, Hamid asked for withholding of
removal, 8 U.S.C. § 1231(b)(3), and relief under the
United Nations Convention Against Torture (“CAT”), 1465
U.N.T.S. 85, art. 3 (1984), claiming that he would be perse-
cuted and tortured if returned to Syria. The immigration
judge (“IJ”) denied relief, finding that persecution and
2 Nos. 04-1600 & 04-2013
torture were unlikely. Hamid now claims not only that the
IJ’s decision was wrong, but that the IJ denied him due
process by refusing to allow an expert witness to testify by
telephone from London.
Hamid’s parents left Palestine in 1948 and became
refugees in Syria. They retained their Syrian refugee status
when they relocated to Qatar, where Hamid was born in
1966. Although Hamid was born in Qatar, he is not a Qatari
citizen, but instead inherited his parents’ status as a
refugee in Syria. As such, Hamid was subject to mandatory
service in the Syrian military. He was allowed to defer his
service while pursuing higher education at Damascus
University in Syria, but after obtaining his second master’s
degree he returned to Qatar rather than report for duty. In
1991, after the Gulf War broke out, he came to the
United States on a tourist visa (using his Syrian travel
documents), found work in Indiana as a business consul-
tant, and eventually married a United States citizen. On
September 21, 2001, he was arrested for participating in a
scheme (which the record does not fully describe) to steal
and to defraud. He pled guilty to two of the conspiracy
counts, received a three-year prison sentence (suspended),
and was placed in deportation proceedings as an aggravated
felon.
At his hearing before the immigration court, Hamid con-
ceded to the court that his crimes were aggravated felonies,
see 8 U.S.C. § 1101(a)(43)(G) (theft offense for which term
of imprisonment is at least one year); § 1101(a)(43)(M)(i)
(fraud offense causing loss greater than $10,000);
§ 1101(a)(43)(U) (attempt or conspiracy), and that he was
deportable. He claimed, however, that he feared persecution
and torture if returned to Syria.1 He gave three reasons: his
1
The government originally designated Qatar as the country to
which Hamid should be removed, but Hamid claims that Qatar
(continued...)
Nos. 04-1600 & 04-2013 3
evasion of military service (punishable by imprisonment);
the length of time he has been in the United States (a sign
of disloyalty); and the fact that he is Palestinian (a
disfavored group in Syria).
In support of his claim, Hamid provided documentary
evidence, including reports from the Department of State
and from Amnesty International, that torture continued to
be practiced in Syrian prisons (particularly military pris-
ons) as recently as 2002. He also provided corroborating
affidavits from Dr. Eyal Zisser (Professor of Middle-Eastern
History at Tel Aviv University) and Dr. Saleem El-Hasan
(President of the Syrian Human Rights Committee in
London). Dr. Zisser’s affidavit briefly discussed the general
political situation in Syria, the government’s routine use of
torture, and the military service requirement.
Dr. El-Hasan’s affidavit was more comprehensive, covering
in five pages a variety of topics relevant to Hamid’s case,
such as the general conditions of Palestinian refugees in
Syria, the military service requirement, prison conditions,
and “the special risks faced by Respondent, Akram Hamid
in case of his removal to Syria,” including the likelihood
that he would be imprisoned and tortured. Hamid asked the
IJ to allow Dr. El-Hasan (who was in London) to testify by
telephone at the hearing, but the IJ denied the request
without explanation, simply writing “Motion telephonic
conference denied” at the top of the motion.
The IJ ultimately denied Hamid’s request for relief. In a
12-page written opinion, he found that Hamid, although
credible, had not met his evidentiary burden for either
withholding of deportation or relief under CAT. He noted
that Hamid had submitted evidence supporting his claim
1
(...continued)
will not accept him because he is not a citizen. The government
therefore designated Syria as an alternate.
4 Nos. 04-1600 & 04-2013
that he believed he would be imprisoned if returned to
Syria, but concluded that it did not establish a clear
probability of imprisonment. See INS v. Stevic, 467 U.S.
407, 430 (1984) (alien seeking withholding of deportation
must show clear probability of future persecution); Lin v.
Ashcroft, 385 F.3d 748, 751 (7th Cir. 2004). The IJ reviewed
the information provided in the State Department’s 2002
Syria Country Report, along with the assertions made by Dr.
Zisser and Dr. El-Hasan in their affidavits that Hamid
would be arrested, interrogated, and imprisoned if returned
to Syria. The IJ also considered a July 2000 decree by the
president of Syria (“Legislative Decree No. 11”) waiving
military service—along with the penalties for evasion—for
expatriates who pay a fee of up to $15,000, which suggested
to the IJ that Hamid could buy his way out of imprisonment
if necessary. Ultimately, the IJ concluded that Hamid had
established a risk of imprisonment, not a clear probability.
Additionally, the IJ found that imprisonment would not
constitute persecution based on any of the statutorily
protected grounds, but simply punishment for evasion of
military service.
The IJ also acknowledged, based on the 2002 Syria
Country Report, that torture continued to be used in Syria,
but found that the Report did not indicate that the use of
torture was widespread. The IJ therefore concluded that
even if Hamid were to be imprisoned, he would more likely
than not be subjected to torture while in prison. See 8
C.F.R. § 208.16(c)(2); Comollari v. Ashcroft, 378 F.3d 694,
695 (7th Cir. 2004) (alien seeking relief under CAT must
show that he will more likely than not be tortured in the
country of removal).
After the Board of Immigration Appeals (“BIA”) affirmed
the IJ’s decision, Hamid filed a motion for reconsideration.
He cited our decision in Niam v. Ashcroft, 354 F.3d 652,
659-60 (7th Cir. 2004), in which we held that an IJ who
refused to allow an expert to testify by telephone about
Nos. 04-1600 & 04-2013 5
political conditions in Bulgaria deprived the applicant of
due process. The BIA summarily denied Hamid’s motion,
and Hamid petitioned for review of both BIA decisions.
Hamid now argues that the IJ’s decision finding him inel-
igible for CAT relief was unreasonable, and that the IJ’s
unexplained refusal to allow telephonic expert testimony
was a violation of due process. First, we must ask whether
we have jurisdiction to consider these arguments. Hamid
admits that he is removable as an aggravated felon, and the
Immigration and Nationality Act (“INA”) generally pro-
hibits us from reviewing the removal orders of aggravated
felons. See 8 U.S.C. § 1252(a)(2)(C); Flores-Leon v. INS, 272
F.3d 433, 438 (7th Cir. 2001). However, § 106(a)(1)(A)(iii) of
the recently enacted REAL ID Act of 2005, 119 Stat. 231,
310, codified at 8 U.S.C. § 1252(a)(2)(D), gives us jurisdic-
tion to review “constitutional claims or questions of law”—
such as Hamid’s due-process claim—raised in a petition for
review even if the petitioner is an aggravated felon. See
Gattem v. Gonzales, No. 04-2102, ___ F.3d ___, 2005
WL 1422373, at *2-*3 (7th Cir. Jun. 20, 2005). This jurisdic-
tional grant applies retroactively to all cases administra-
tively decided “before, on, or after the date of enactment.”
See REAL ID Act § 106(b), 119 Stat. at 311; Gattem, 2005
WL 1422373, at *3; Fernandez-Ruiz v. Gonzales, 410 F.3d
585, 587 (9th Cir. 2005).
We therefore have jurisdiction to consider Hamid’s due-
process challenge. To succeed in that challenge, Hamid
must show two things: (1) the IJ’s decision to disallow tele-
phonic expert testimony deprived Hamid of a meaningful
opportunity to be heard; and (2) the deprivation was
prejudicial—that is, the disallowed testimony would have
potentially affected the outcome of the case. See Kuschchak
v. Ashcroft, 366 F.3d 597, 605 (7th Cir. 2004); Kerciku v.
INS, 314 F.3d 913, 917-18 (7th Cir. 2003).
Although the INA allows an asylum applicant “to present
evidence on [his] own behalf, and to cross-examine wit-
6 Nos. 04-1600 & 04-2013
nesses presented by the Government,” 8 U.S.C.
§ 1229a(b)(4)(B), it does not establish a specific right to
present evidence through oral testimony. Nevertheless, in
several cases we have held that an IJ’s refusal to permit
live testimony deprived an asylum applicant of a meaning-
ful opportunity to be heard. See, e.g., Kerciku, 314 F.3d at
918 (an IJ “violates due process by barring complete chunks
of oral testimony that would support the applicant’s
claims”). In none of those cases, however, was the expert’s
testimony the only evidence that was excluded. In Kerciku,
for instance, the IJ not only denied live expert testimony,
but cut off the bulk of the applicant’s own testimony. Id.
Similarly, in Podio v. INS, 153 F.3d 506, 509-11 (7th Cir.
1998), the IJ persistently interrupted the testimony of the
applicant and entirely excluded corroborative testimony
from his siblings. And in Niam, 354 F.3d at 659, the IJ
disallowed not only the expert’s oral testimony but the
expert’s affidavit as well. We know of no case in which
exclusion of an expert’s oral testimony alone was considered
a denial of due process.
In general, of course, we have considered live testimony
preferable to written substitutes. For example, in Whitlock
v. Johnson, 153 F.3d 380, 388-89 (7th Cir. 1998), we found
impermissible the categorical exclusion of live testimony at
prison disciplinary hearings, in part because it denies “the
opportunity for the Adjustment Committee to evaluate the
credibility and demeanor of the inmate’s defense witnesses.”
The importance of live observations in making credibility
determinations is presumably why Kerciku and Podio
required admission of live testimony from the applicants
and their corroborating witnesses. But observable factors
like demeanor and tone of voice are less important when it
comes to expert witnesses, whose reliability is supposed to
be based on their expertise rather than on what they claim
to have witnessed. See Daubert v. Merrell Dow Pharm., Inc.,
509 U.S. 579, 592 (1993).
Nos. 04-1600 & 04-2013 7
It is therefore not clear that the IJ’s decision to exclude
Dr. El-Hasan’s live testimony deprived Hamid of a mean-
ingful opportunity to be heard. In any event, Hamid must
also show that he was prejudiced by that decision. We have
found the exclusion of live testimony to be prejudicial when
the testimony would have added something that was
otherwise missing from the record: corroboration of facts
rejected by the IJ as uncorroborated (Podio, 153 F.3d at
511); evidence of persecution already suffered (Kerciku, 314
F.3d at 918); or facts contrary to the conclusions of the
State Department’s country report (Niam, 354 F.3d at 658-
60). In this case, however, the IJ acknowledged and consid-
ered Dr. El-Hasan’s written assertions that Hamid would be
arrested, imprisoned, and tortured if removed to Syria, but
found that those assertions (along with the rest of the
evidence) did not establish a clear probability that the risk
would materialize. Hamid has not advised us what addi-
tional information Dr. El-Hasan would have provided that
might have affected that conclusion. See Roman v. INS, 233
F.3d 1027, 1033 (7th Cir. 2000) (applicant’s failure to allege
excluded testimony that would potentially affect outcome of
hearing was fatal to due-process claim). We therefore
cannot conclude that Hamid was deprived of due process.
Hamid’s CAT claim is jurisdictionally more problematic.
Before the REAL ID Act, some of our cases suggested that
we had no jurisdiction to review CAT claims presented by
aggravated felons. See Espinoza-Franco v. Ashcroft, 394
F.3d 461, 466 (7th Cir. 2005); Diakite v. INS, 179 F.3d 553,
554 (7th Cir. 1999). In other cases, however, we have re-
viewed such claims despite the petitioners’ convictions. See
Ali v. Ashcroft, 395 F.3d 722, 731 (7th Cir. 2005); Bosede v.
Ashcroft, 309 F.3d 441, 445 (7th Cir. 2002). Several other
circuits have held that although direct review is prohibited,
indirect review is available by petition for habeas corpus.
See, e.g., Auguste v. Ridge, 395 F.3d 123, 137 (3d Cir. 2005);
Kamagate v. Ashcroft, 385 F.3d 144, 149 (2d Cir. 2004);
8 Nos. 04-1600 & 04-2013
Singh v. Ashcroft, 351 F.3d 435, 441 (9th Cir. 2003); Saint
Fort v. Ashcroft, 329 F.3d 191, 200-02 (1st Cir. 2003).
We believe that the REAL ID Act resolves these tensions
concerning the scope of our review. It abolishes habeas
review of CAT claims, providing that a petition for review
filed with the appropriate court of appeals is (with an irrel-
evant exception) “the sole and exclusive means for judicial
review of any cause or claim under the United Nations
Convention Against Torture.” REAL ID Act § 106(a)(1)(B),
119 Stat. at 310, codified at 8 U.S.C. § 1252(a)(4); cf. 8
C.F.R. § 208.18(e)(1) (“[T]here shall be no judicial appeal or
review of any action, decision, or claim raised under the
Convention [Against Torture] . . . except as part of the re-
view of a final order of removal pursuant to section 242 of
the [Immigration and Nationality] Act”). And although CAT
claims are subject to the same jurisdictional restrictions as
any other claims presented by aggravated felons, see 8
C.F.R. § 208.18(e)(1) (“any appeal or petition regarding an
action, decision, or claim under the Convention . . . shall not
be deemed to include or authorize the consideration of any
administrative order or decision, or portion thereof, the
appeal or review of which is restricted or prohibited by the
Act”), they are also entitled to the same jurisdictional
allowances—that is, we may review any “constitutional
claims or questions of law” relevant to a petitioner’s claim
for relief under CAT, despite his aggravated felony convic-
tion, 8 U.S.C. § 1252(a)(2)(D).
Unfortunately for Hamid, his argument that the IJ
wrongly denied him CAT relief does not depend upon any
constitutional issue or question of law. Rather, it comes
down to whether the IJ correctly considered, interpreted,
and weighed the evidence presented—that is to say,
whether the IJ’s conclusion was based on substantial evi-
dence. See Rashiah v. Ashcroft, 388 F.3d 1126, 1131 (7th
Cir. 2004) (describing substantial-evidence standard of re-
view). There is no indication that the IJ misunderstood the
Nos. 04-1600 & 04-2013 9
legal standard for granting CAT relief—he properly con-
sidered whether it was more likely than not that Hamid
would be tortured if returned to Syria, but concluded that
it was not. Nor (as discussed above) does it appear that the
IJ’s treatment of Hamid’s claim violated any constitutional
standards. We therefore find no basis, within the limited
scope of our jurisdiction to consider the claims of aggra-
vated felons, to find that the IJ erred.
In sum, because Hamid is removable as an aggravated
felon, we cannot consider whether the IJ’s factual conclu-
sions (including his conclusion about the likelihood of tor-
ture) are supported by substantial evidence, so we DISMISS
his petition for review in Case No. 04-1600 for lack of
jurisdiction. We do have jurisdiction, despite Hamid’s aggra-
vated felony, to consider the constitutional claim raised in
his second petition for review (challenging the BIA’s denial
of his motion to reopen) but his due-process argument does
not succeed, so we DENY his petition for review in Case No.
04-2013.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-2-05