Babray Abdul Hanan v. Alberto Gonzales ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-3355
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Babray Abdul Hanan, *
*
Petitioner, *
*
v. * Petition for Review of an Order of
* the Board of Immigration Appeals.
Alberto Gonzales, Attorney General *
of the United States of America, *
*
Respondent. *
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Submitted: May 18, 2006
Filed: June 6, 2006
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Before MURPHY, BEAM, and BENTON, Circuit Judges.
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MURPHY, Circuit Judge.
Babray Hanan's claim under the United Nations Convention Against Torture
(CAT) was denied by the Board of Immigration Appeals, and his petition for review
was dismissed by this court in July 2004 for lack of subject matter jurisdiction due to
his prior convictions for importing heroin and possessing it with intent to distribute.
After the Immigration and Naturalization Service (INS) scheduled Hanan for removal,
he filed this habeas petition in the district court. Later the Real ID Act of 2005
(RIDA) was enacted, and the petition was transferred to this court. Hanan argues that
we now have jurisdiction to consider whether he was improperly denied relief under
CAT. We dismiss the petition.
Hanan, a member of the Pashtun ethnic group and a citizen of Afghanistan, was
paroled into the United States on March 3, 1980, following the Soviet invasion of
Afghanistan. On April 1, 1983, while his asylum application was pending, a jury
convicted him and his roommate of importation of heroin and possession of heroin
with intent to distribute, in violation of 21 U.S.C. §§ 952(a), 960, 841(a)(1). He
received concurrent sentences of three years imprisonment. The Fourth Circuit
affirmed his convictions but reversed those of his roommate for insufficient evidence.
United States v. Samad, 754 F.2d 1091 (4th Cir. 1984). The INS initiated exclusion
proceedings because of Hanan's drug convictions, pursuant to 8 U.S.C. § 1182(a)(23)
(1980) (recodified at 8 U.S.C. § 1182(a)(2)(A)(i)(II) & (c)), and the immigration judge
(IJ) found him excludable as charged. Hanan filed applications for asylum and
withholding of deportation, but the IJ denied the applications and Hanan did not
appeal.
Due to the conditions in Afghanistan, the INS did not remove Hanan but
allowed him to remain temporarily on parole status and provided him work
authorization. He filed a motion to reopen his immigration case in 1999 to seek relief
under CAT. Hanan's motion to reopen was granted, and he introduced evidence at an
October 2002 CAT hearing that warlords controlled Afghanistan, that the allied forces
had not made it safe for him to return, and that he would specifically be targeted by
the warlords because he is a Pashtun. He testified that his father had briefly returned
to Afghanistan but had left again because it was not safe and that he would
immediately be recognized if he were forced to return because of his prominent last
name and the American traits he has acquired.
The IJ issued an order on October 23, 2002 denying Hanan's application for
deferral of removal under CAT and ordering him excluded and deported. The IJ
agreed with Hanan that gross violations of human rights had taken place when the
Taliban were in control of Afghanistan and found no reason to disbelieve Hanan's
testimony. The judge noted, however, that the Taliban were no longer in power, that
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allied forces provided protection to the people and government in Kabul, and that
Hanan and his family had previously lived in Kabul, the city of the current
government which he and his family have supported. The IJ concluded there was no
evidence that it would be more likely than not that the current government of
Afghanistan or officials acting with the consent or acquiescence of the government
would seek to torture Hanan if he were to return. The BIA affirmed the decision
without an opinion on April 6, 2004.
Hanan then attempted to petition for review in this court. Because the INS had
commenced proceedings against him before April 1, 1997 and the final order of the
BIA had been entered on April 6, 2004, the transition rules for judicial review applied
to the appeal. IIRIRA § 309(c)(4). We determined that Hanan's heroin convictions
deprived this court of jurisdiction over the decision to deny him CAT relief and
dismissed his petition for lack of subject matter jurisdiction. See Hanan v. Ashcroft,
No. 04-2010 (8th Cir., July 7, 2004); IIRIRA § 309(c)(4)(G). On August 10, 2004
Hanan was scheduled for removal.
Hanan filed this petition for a writ of habeas corpus and motion for a temporary
restraining order (TRO) on August 9, 2004, asserting that he had been improperly
denied relief under CAT and requesting that he be allowed supervised release from
detention during the temporary stay. The district court1 granted a TRO temporarily
enjoining Hanan's deportation while his petition was pending, and the INS agreed not
to execute the order of removal and to allow Hanan to remain on supervised release
until his habeas petition was resolved.
RIDA became effective on May 11, 2005, and provided that any habeas petition
pending in the district courts was to be transferred to the circuit court of appeals. Pub.
1
The Honorable David S. Doty, United States District Judge for the District of
Minnesota.
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L. 109-13, Div. B., Title I, § 106(c) (2005); Ochoa-Carrillo v. Gonzales, 437 F.3d 842,
846 n. 5 (8th Cir. 2006). Since Hanan had been placed on supervised release pending
the resolution of his habeas petition, the district court denied his detention claim as
moot before transferring his habeas petition on August 24, 2005.
After transfer of his habeas petition, Hanan filed petitions for writs of coram
nobis and audita querela in the United States District Court for the Eastern District of
Virginia seeking to overturn or expunge his heroin convictions. He argued that he
was innocent of the crimes for which he had been convicted and that he and his family
would face extreme hardship if he were deported. The district court denied the
petitions, as well as a motion for reconsideration. According to counsel's statement
at oral argument, Hanan plans an appeal to the Fourth Circuit.
In this matter Hanan argues that we have jurisdiction to hear the arguments
raised in his habeas petition because after RIDA his heroin convictions no longer
deprive us of jurisdiction to hear his CAT challenges, that the IJ erred by denying him
CAT relief,2 and that it is more likely than not that he will be tortured if he is forced
to return to Afghanistan. He also requests that we withhold our decision pending final
resolution of the petitions he filed in Virginia. The government argues that we do not
have jurisdiction to hear the arguments raised by Hanan because RIDA only gives this
court jurisdiction to hear questions of law or constitutional claims, and it does not
eliminate the jurisdictional bar to challenges raised by aliens who have been found
guilty of an offense covered by 8 U.S.C. § 1252(a)(2)(C).
RIDA consolidated judicial review of matters pertaining to removal orders in
the courts of appeal and expanded appellate jurisdiction to include review of
"constitutional claims or questions of law". 8 U.S.C. § 1252(a)(2)(D); Singh v.
Gonzales, 432 F.3d 533, 537 (3d Cir. 2006). Hanan's petition alleges that he was
2
An IJ decision affirmed by the BIA without opinion is treated as the final
agency decision. Bropleh v. Gonzales, 428 F.3d 772, 775 (8th Cir. 2005).
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improperly denied CAT relief because the coalition forces do not control all of
Afghanistan, the warring factions continue to persecute Pashtuns, and it is not safe for
him to return.3 These are challenges to factual determinations by the IJ which are
supported by the record. Hanan's challenges are therefore not "constitutional claims
or questions of law", and we do not have jurisdiction to consider them. 8 U.S.C. §
1252(a)(2)(D); Hamid v. Gonzales, 417 F.3d 642, 647 (7th Cir. 2005).
Since we conclude that we do not have jurisdiction to hear the arguments raised
in Hanan's petition, it is unnecessary to consider the alternative argument raised by the
government that we also lack jurisdiction because Hanan has been convicted of an
offense covered by 8 U.S.C. § 1252(a)(2)(C). But see, e.g., Papageorgiou v.
Gonzales, 413 F.3d 356, 358 (3d Cir. 2005) (holding that RIDA restored jurisdiction
in circuit courts to review constitutional claims and questions of law raised by aliens
regardless of their criminal records).
Finally, Hanan has not shown a likelihood of prevailing in the protracted
proceedings trying to overturn his drug convictions and we deny his request that we
withhold ruling on this petition while he seeks to overturn or expunge his convictions.
We conclude under the circumstances that there is no good reason for further delay
in ruling on this petition.
Because subject matter jurisdiction is lacking, we dismiss the petition for
review.
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3
Hanan argues that country reports from the years following the IJ's decision to
deny him relief demonstrate that it is more likely than not that he could be subjected
to torture if he returns, but these reports are not part of the administrative record. See
8 U.S.C. § 1252(b)(4)(A). He must file a motion with the agency to reopen his case
in order for the new country reports to be considered.
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