Paul Kiorkis v. Eric Holder, Jr. , 634 F.3d 924 ( 2011 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 10-1397
P AUL K IORKIS,
Petitioner,
v.
E RIC H. H OLDER, JR., Attorney General
of the United States,
Respondent.
Petition for Review of an Order of
the Board of Immigration Appeals.
No. A046 101 699.
A RGUED O CTOBER 19, 2010—D ECIDED F EBRUARY 28, 2011
Before C UDAHY and R OVNER, Circuit Judges, and
A DELMAN, District Judge.Œ
C UDAHY, Circuit Judge. In 2007, the Department of
Homeland Security placed Paul Kiorkis, a Lebanese
citizen who had been legally residing in the United States
Œ
The Honorable Lynn Adelman, District Judge for the Eastern
District of Wisconsin, sitting by designation.
2 No. 10-1397
for over a decade, into removal proceedings due to his
prior conviction for possession of a controlled substance.
Kiorkis conceded that he was removable, but filed an
application seeking asylum and other forms of relief. An
immigration court denied his request for asylum after
conducting a full merits hearing, finding that Kiorkis
had failed to establish that he had a well-established
fear of future persecution on the basis of a statutorily-
protected ground. Kiorkis appealed the immigration
court’s decision to the Board of Immigration Appeals
(BIA). A one-member panel of the Board denied Kiorkis’s
appeal and affirmed the immigration court’s analysis in
its entirety. Kiorkis filed an appeal with this court,
alleging that the immigration court and the Board failed
to consider all of his future persecution claims. We
affirm the decisions below.
I. Background
Paul Kiorkis is an Assyrian Christian who was born in
Beirut, Lebanon in 1984. Twelve years later, Kiorkis—along
with his father, mother and four siblings—obtained an
immigrant visa and entered the United States as lawful
permanent residents. After moving to the United States,
the Kiorkis family settled in the greater Chicago area
and, except for a few members who have relocated to
Michigan, remain in Illinois to this day. Over the past
14 years, all of the Kiorkis family members, except the
appellant, have succeeded in obtaining full U.S. citizen-
ship.
After immigrating to the United States, Kiorkis
remained a lawful permanent resident in good standing
No. 10-1397 3
with the law for several years. Eventually, however,
Kiorkis ran afoul of the law. In 2003, he pleaded guilty
to unauthorized possession of a controlled substance
and was sentenced to two years of probation, which it
appears he completed without incident. This conviction
came back to haunt Kiorkis in 2007 when he applied
for naturalization. When reviewing Kiorkis’s applica-
tion, the Department of Homeland Security (DHS) dis-
covered his prior conviction and used it as grounds for
denying his application. DHS also instituted removal
proceedings against Kiorkis at this time, seeking to
remove him from the United States pursuant to section
237(a)(2)(B)(I) of the Immigration and Nationality Act
(INA). 8 U.S.C. § 237(a)(2)(B)(I) (providing for the
removal of aliens who have been convicted for violating
controlled substance laws).
In March 2008, Kiorkis appeared for his initial hearing
before the immigration court and was granted an ex-
tension so that he could obtain representation. In
August 2008, Kiorkis failed to appear at the second
hearing and the court ordered him in absentia removed.
The court rescinded its order upon Kiorkis’s timely
filing of a motion to reopen and continued the hearing
to January 2009. At this hearing, Kiorkis conceded that
he was removable.
In February 2009, Kiorkis submitted an application
for asylum, withholding of removal and protection
under the Convention Against Torture. In his asylum
application, Kiorkis stated that certain aspects of his
identity made him a likely target of future persecution
4 No. 10-1397
at the hands of Hezbollah and the Lebanese government.
In April 2009, Immigration Judge Ipema presided over
a merits hearing concerning his application. At the con-
clusion of the hearing, Judge Ipema denied all of
Kiorkis’s requests and ordered his removal to Lebanon.
In May 2009, Kiorkis appealed Judge Ipema’s order to
the BIA. Two months later the BIA determined that the
transcript from Kiorkis’s hearing contained too many
indiscernible notations to permit appellate review and
remanded the case for further consideration. In Septem-
ber 2009, Immigration Judge Kessler presided over a
second merits hearing regarding Kiorkis’s claims. At
the conclusion of the hearing, Judge Kessler granted
Kiorkis’s request for voluntary departure, but denied
all of Kiorkis’s other requests for relief.
Kiorkis filed a timely appeal from Judge Kessler’s
decision with the BIA. In January 2010, after receiving
briefing from both parties, the BIA affirmed the decision
below and dismissed the appeal. Kiorkis asks this court
to review the BIA’s decision, alleging that both the BIA
and Judge Kessler erred in denying his requests for relief.
II. Discussion
Because the BIA dismissed Kiorkis’s appeal in a single-
member opinion that agreed with the immigration
judge’s analysis, the immigration judge’s opinion “as
supplemented by the Board’s opinion becomes the basis
of review.” Raghunathan v. Holder, 604 F.3d 371, 378 (7th
Cir. 2010). Before analyzing the merits of each of
No. 10-1397 5
Kiorkis’s claims, however, we must first consider the
extent to which we have jurisdiction over this appeal.
Kiorkis has conceded that he is removable from the
United States due to his commission of a drug-related
criminal offense. When an individual is removable
on such grounds, section 1252(a)(2)(C) of the INA
severely curtails our ability to review the decisions of
the immigration court and the BIA. 8 U.S.C. § 1252(a)(2)(C)
(stating that “no court shall have jurisdiction to review
any final order of removal against an alien who is re-
movable by reason of having committed” certain
criminal offenses); see also Aguilar-Mejia v. Holder, 616
F.3d 699, 703 (7th Cir. 2010). While we are prohibited
completely from questioning the factual determinations
made by either body, a subsequent provision of the
INA states that we retain the authority to review the
agency’s determinations for legal errors. 8 U.S.C. § 1252(a)(2)(D) (stating that courts retain jurisdiction to hear
appeals raising “constitutional claims or questions of
law”); see also Khan v. Filip, 554 F.3d 681, 688 (7th Cir.
2009); Li Fang Huang v. Mukasey, 534 F.3d 618, 620 (7th
Cir. 2008). We review the legal determinations of the
immigration court and the BIA de novo, with deference
to the agency if the issue involves an ambiguous section
of the INA or an interpretation of agency regulations.
INS v. Aguirre-Aguirre, 526 U.S. 415, 424 (1999); Auer v.
Robbins, 519 U.S. 452, 461-62 (1997).
On appeal, Kiorkis alleges that the immigration court
and the BIA erred in three distinct ways: (1) they failed
to acknowledge his Hezbollah-related fear of future
6 No. 10-1397
persecution claims; (2) they ignored his fear of future
persecution claims that were not related to his religion;
and (3) they applied the wrong evidentiary standard
when determining that he had not shown a likelihood
of future persecution.
A. Kiorkis’s Hezbollah-related Claims
Kiorkis’s first argument on appeal contends that
Judge Kessler and the BIA considered only whether
Kiorkis had a well-founded fear of future persecution
at the hands of the Lebanese government and failed to
address his claims concerning persecution at the hands
of Hezbollah. He also argues that section 1252(a)(2)(C)
of the INA does not limit our ability to review the deci-
sions below for these errors as they constitute legal,
rather than factual, errors.
In prior cases where our jurisdiction has been re-
stricted by section 1252(a)(2)(C), we have acknowledged
“that the line between legal questions—which we can
review—and discretionary factual determinations—which
we cannot—is occasionally difficult to draw.” Khan v.
Filip, 554 F.3d at 688. It is clear that we are not
prevented from reviewing “an argument that necessarily
implicates a claim of legal error, such as an allegation
that the BIA failed to exercise discretion at all by com-
pletely ignoring an argument.” Iglesias v. Mukasey, 540
F.3d 528, 530-31 (7th Cir. 2008); see also Mansour v. INS,
230 F.3d 902, 908 (7th Cir. 2000) (stating that agencies
are required to respond to the arguments that they are
No. 10-1397 7
presented with). However, it is also clear that we are
prohibited from reviewing “factual determinations or
the manner in which the agency weighed the various
factors that inform the exercise of discretion” or from
hearing claims that merely allege that the immigration
court “failed to apply the law.” Aguilar-Mejia, 616 F.3d
at 703; Khan, 554 F.3d at 689. Insofar as Kiorkis is
alleging that the immigration court and the BIA com-
pletely failed to consider his Hezbollah-related claims
(as opposed to claiming that these bodies exercised their
discretion, but did so improperly), we find that the
jurisdiction-stripping provisions of the INA are not
applicable and that it is proper for us to review the deci-
sions below.
After reviewing Judge Kessler’s and the BIA’s deci-
sions, we find that Kiorkis’s allegations concerning his
Hezbollah-related claims are not supported by the rec-
ord. The BIA and the immigration courts are entitled
to a presumption of regularity concerning their resolu-
tion of claims and applicants appealing from their deci-
sions bear the burden of establishing that an error oc-
curred. Rhoa-Zamora v. INS, 971 F.2d 26, 33-34 (7th Cir.
1992). Further, while we have remanded immigration
cases “because an absence of analysis left us uncertain
that a claim had been fully understood,” we have also
recognized that it is impossible for immigration courts
to “write an exegesis on every contention an applicant
raises.” Dobrota v. INS, 195 F.3d 970, 974 (7th Cir. 1999).
At the end of the merits hearing, Judge Kessler noted
evidence submitted by the parties discussing “ongoing
sectarian violence and other problems in Lebanon,”
8 No. 10-1397
including a United Nations report indicating that Leba-
non’s government generally respects religious freedom
and a U.S. State Department report discussing the
dangers posed by Hezbollah in Lebanon. She also dis-
cussed Kiorkis’s history with and present fears of
Hezbollah. It is true that Judge Kessler did not ex-
plicitly distinguish between Kiorkis’s claims con-
cerning Hezbollah and those involving the Lebanese
government when finding that Kiorkis had not demon-
strated a well-established fear of future persecution;
however, this failure does not constitute reversible er-
ror.1 The record establishes that Judge Kessler under-
stood Kiorkis’s Hezbollah-related claim, that she consid-
ered the evidence before her and that she found it was
insufficient to support granting Kiorkis’s request for
asylum. Hence, it is clear that the immigration court did
not commit a legal error by ignoring Kiorkis’s claim.
B. Kiorkis’s Non-Religious Future Persecution Claims
Kiorkis also argues that the decisions below should be
reversed because Judge Kessler and the BIA failed to
consider three of the four statutorily-protected grounds
that he identified as providing a basis for his fear of
persecution claims. More specifically, Kiorkis alleges that
1
The immigration court’s decision to address these claims
jointly is particularly understandable given that Kiorkis indi-
cated in both his brief and his testimony that Hezbollah has
infiltrated the Lebanese government and effectively controls
many of its decisions.
No. 10-1397 9
the immigration court and the BIA did not consider
whether his status as an Assyrian, a Westernized/Ameri-
canized individual and a member of a family with a
history of opposing Hezbollah supported a finding that
he possesses a well-founded fear of future persecution.
He contends that these omissions constitute legal errors
and, hence, that they can properly be reviewed by this
court.
Because Kiorkis’s second argument, like his first,
alleges that the immigration court and the BIA completely
ignored his claims, section 1252(a)(2)(C) of the INA
does not bar us from reviewing the decisions below.
Iglesias, 540 F.3d at 530-31. While we cannot question
the validity of Judge Kessler’s or the BIA’s factual deter-
minations or the weight that they attributed to the par-
ties’ evidence, a complete failure to consider
Kiorkis’s arguments constitutes grounds for reversal.
Id.; Khan, 554 F.3d at 689.
Our review of the opinions issued by Judge Kessler
and the BIA leaves us convinced that Kiorkis’s fear
of future persecution claims were not ignored. We begin
by noting that Kiorkis’s claim concerning his Assyrian
identity was not raised below and, as such, is not
properly before this court. In the brief that he submitted
to Judge Kessler prior to his merits hearing, Kiorkis
stated that he had a well-founded fear of future persecu-
tion on account of his Christianity, family membership,
political views and American identity. When Kiorkis
appealed Judge Kessler’s ruling to the BIA, he stated
that he feared persecution on three grounds—“(1) as a
Christian, (2) as one who is pro-Americanized and pro-
10 No. 10-1397
Western, and (3) as a member of a family who was perse-
cuted by Hezbollah in the past.” Because Kiorkis
did not assert that his ethnicity provided an in-
dependent basis for finding a fear of future persecution
until filing his briefs with this court, the immigration
court and the BIA did not err by not addressing this
claim. See Mekhitav v. Holder, 559 F.3d 725, 729 (7th Cir.
2009).
Given the novelty of Kiorkis’s ethnicity-based claim and
his concession that the immigration court and the BIA
considered his Christianity-based claim, we are left to
decide whether these bodies gave sufficient considera-
tion to his Americanized/pro-Western identity and
family membership claims. When delivering her opinion,
Judge Kessler discussed Kiorkis’s contentions that his
American point of view and other distinctly Western
characteristics would put him at risk for future persecu-
tion, noting that one of his primary claims for relief
was “related to the fact that he ha[d] been effectively
Americanized.” Judge Kessler also stated that Kiorkis
had testified that he was “afraid of Hezbollah because
of his uncle fighting against them, and his father being
shot” and that he feared “being tortured by Hezbollah
because his family has fought against them.” After ac-
knowledging these claims and reviewing the evidence
that the parties had submitted, she held that,
[a]lthough [Kiorkis] certainly has some concerns
and although the well-founded fear standard is a low
standard, I cannot conclude . . . that it has been demon-
strated that there is . . . [a] ten percent chance or so
that he himself would suffer harm that rises to the
No. 10-1397 11
level of persecution, or that any such harm he fears
would be on account of his membership in a particular
social group.
(emphasis added). Given all of this, it is clear that the
immigration court considered Kiorkis’s fear of future
persecution claims based upon his Americanized/pro-
Western and family group identities, but found them
unconvincing and entered a judgment that dismissed
both claims.
We caution, however, that our holding should not
be interpreted as an unqualified endorsement of the
immigration court’s decision. Although we recognize
practical limitations, Judge Kessler might have dis-
cussed each of Kiorkis’s claims in greater depth and
elaborated on the reasons why she was rejecting each
claim. Section 1252(a)(2)(C)’s limitation of our jurisdic-
tion, however, implies some restriction on the severity
of our critique of how Kiorkis’s social group claims
were handled. To the extent such a critique requires
reviewing the factual determinations of the immigration
court, section 1252(a)(2)(c) restricts its scope.
C. Evidentiary Standard
Kiorkis’s final argument alleges that the immigration
court and the BIA applied an incorrect evidentiary stan-
dard when deciding whether to grant his asylum applica-
tion. He argues that the judgments entered by both
adjudicative bodies should be reversed because they did
not weigh the totality of his circumstances, failed to
consider all of his future persecution claims in the
12 No. 10-1397
context of one another and improperly focused on a
single piece of evidence.
Kiorkis’s argument concerning the evidentiary
standards applied by the immigration court is not sup-
ported by the record.2 Kiorkis has failed to identify
any part of Judge Kessler’s opinion that indicates that
she did not weigh the totality of Kiorkis’s circumstances
or that she considered his claims in isolation when de-
ciding whether she should grant his request for asylum.
While Kiorkis suggests that the immigration court’s
heavy emphasis on his Christianity-based claims allow
us to infer that the court made these errors, doing so
would conflict with both this circuit’s practice and a
plain language reading of Judge Kessler’s opinion. Rhoa-
Zamora, 971 F.2d at 33-34.
III. Conclusion
For all of the reasons set forth above, the ruling of the
district court is
A FFIRMED.
2
We have jurisdiction over these issues as an appellant’s
allegation that a court applied the incorrect legal standard
falls squarely within the “questions of law” exception to
section 1252(a)(2)(C)’s jurisdictional restrictions. Joseph v.
Holder, 579 F.3d 827, 829 (7th Cir. 2009).
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