Bashir Sharif v. William P. Barr ( 2020 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 19-1478
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Bashir Mohamed Sharif
Petitioner
v.
William P. Barr, Attorney General of the United States
Respondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: January 17, 2020
Filed: July 7, 2020
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Before SMITH, Chief Judge, LOKEN and GRUENDER, Circuit Judges.
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GRUENDER, Circuit Judge.
Bashir Mohamed Sharif petitions for review of the Board of Immigration
Appeals’ (“BIA”) decision to affirm an Immigration Judge’s (“IJ”) denial of his
motion to reopen removal proceedings and to deny his motion to remand. For the
reasons discussed below, we deny the petition in part and dismiss the remainder.
I.
Sharif, a native and citizen of Somalia, was admitted to the United States in
2000 as a refugee. He adjusted his status to lawful permanent resident in 2002. From
2005 to 2006, Sharif was convicted of three crimes, including violation of a
protection order, see S.D. Codified Laws § 22-19A-16; injury to property, see S.D.
Codified Laws § 22-34-1; and felony possession of a controlled substance, see S.D.
Codified Laws § 22-42-5.
As a result, the Department of Homeland Security initiated removal
proceedings against Sharif in 2007, charging him with being removable under 8
U.S.C. §§ 1227(a)(2)(A)(ii)-(iii) and 1227(a)(2)(B)(i). While represented by
counsel, Sharif conceded the charges, admitted removability, and declined to apply
for any form of relief. The IJ ordered him removed to Somalia, and Sharif waived
his appeal to the BIA.
The Government did not seek to remove Sharif until a 2012 change in policy
resumed deportations to Somalia. In December 2017, Sharif was placed on a flight
to Somalia, chartered by Immigration and Customs Enforcement. Due to logistical
issues, however, the plane landed in Senegal, where it remained for twenty hours
before returning to the United States.
On June 15, 2018, Sharif filed a motion to reopen removal proceedings to seek
asylum, withholding of removal, and relief under the Convention Against Torture
(“CAT”) based on a claim of changed country conditions in Somalia. See 8 U.S.C.
§ 1229a(c)(7)(C)(ii); 8 C.F.R. §§ 1003.23(b)(4)(i), 1208.4(b)(3)(ii). The IJ denied
Sharif’s motion to reopen, finding that he failed to demonstrate a material change in
country conditions since his 2008 removal order, and Sharif appealed to the BIA.
While his appeal to the BIA was pending, Sharif filed a motion to remand to the IJ
based on new evidence—an affidavit from Sharif’s sister—not available at the time
of the original filing of his motion to reopen. Considering the motions together, see
8 C.F.R. § 1003.2(c)(4), the BIA affirmed the IJ’s denial of Sharif’s motion to reopen
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and denied the motion to remand because Sharif had failed to demonstrate a material
change in country conditions.
Sharif timely petitioned this court for review. See 8 U.S.C. § 1252(b)(1). In
response, the Government moved to dismiss for lack of jurisdiction because Sharif
was subject to removal as a criminal alien. See id. § 1252(a)(2)(C). We ordered the
motion to dismiss to be taken with the case for consideration with the merits of
Sharif’s petition.
II.
Sharif argues that the BIA abused its discretion in affirming the IJ’s denial of
his motion to reopen because he failed to show a material change in country
conditions, erred in applying its own evidentiary standards, abused its discretion in
denying his motion to remand in light of new evidence, and violated his due process
rights by failing to consider evidence and arguments raised in his petition. In
response, the Government contends that we lack jurisdiction to review any of
Sharif’s claims and, in any event, that Sharif’s contentions lack merit.
A motion to reopen generally must be filed within ninety days of a final order
of removal. Martinez v. Lynch, 785 F.3d 1262, 1265 (8th Cir. 2015). As a result,
Sharif’s motion, filed roughly a decade after his final order of removal, was
untimely. But the “untimeliness of a motion to reopen may be excused if a petitioner
shows changed country conditions based on evidence not previously available and
if he makes a prima facie showing that, if reopened, his case would lead to relief.”
Rivera-Guerrero v. Barr, 926 F.3d 1050, 1052 (8th Cir. 2019) (per curiam) (citing
8 C.F.R. § 1003.2(c)(3)(ii)); see also Go v. Holder, 744 F.3d 604, 607-09 (9th Cir.
2014) (holding that the requirements of 8 C.F.R. § 1003.2 are applicable to motions
to reopen CAT claims). The moving party “bears a heavy burden” to demonstrate
why the case should be reopened. Hernandez-Moran v. Gonzales, 408 F.3d 496,
499 (8th Cir. 2005). The question when such a motion is filed is not whether the
petitioner may have initially qualified for the requested relief, but whether, having
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failed to secure that relief during the initial proceeding, he has demonstrated a
change in country conditions since his initial hearing that materially affects his claim
to relief. Zeah v. Lynch, 828 F.3d 699, 704 (8th Cir. 2016). In determining whether
there has been a material change in country conditions, the BIA “compares the
evidence of country conditions submitted with the motion to reopen to those that
existed at the time of the merits hearing below.” Id. at 703 (brackets omitted).
“We review both the denial of a motion to remand and the denial of a motion
to reopen for abuse of discretion.” Caballero-Martinez v. Barr, 920 F.3d 543, 549
(8th Cir. 2019). “The BIA abuses its discretion if its decision is without rational
explanation, departs from established policies, invidiously discriminates against a
particular race or group, or where the agency fails to consider all factors presented
by the alien or distorts important aspects of the claim.” Id. “We generally review
the BIA’s decision as the final agency action,” but where “the BIA essentially
adopted the IJ’s opinion while adding some of its own reasoning, we review both
decisions.” Garcia v. Holder, 746 F.3d 869, 872 (8th Cir. 2014).
If, however, the petitioner is a criminal alien under 8 U.S.C. § 1252(a)(2)(C),
our jurisdiction to review final orders of removal and denials of motions to reopen
final orders of removal “is limited to constitutional claims and questions of law.”
Hanan v. Mukasey, 519 F.3d 760, 763 (8th Cir. 2008); 8 U.S.C. § 1252(a)(2)(D).
We review the BIA’s legal determinations “de novo, according substantial deference
to the BIA’s interpretation of the statutes and regulations it administers.” Martinez,
785 F.3d at 1265.
Sharif was found removable for having been convicted of a controlled
substance offense (an aggravated felony) and crimes of moral turpitude, he conceded
the charges at his initial removal proceedings, and he does not disagree that the
criminal-alien bar applies in this case. 1 Thus, at least concerning Sharif’s claims for
1
In his motion to reopen, Sharif challenged whether his conviction for
possession of cocaine in violation of South Dakota Codified Law section 22-42-5
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asylum and withholding of removal, “[w]e lack jurisdiction to review factual
findings” and may only review constitutional claims or questions of law. Hanan,
519 F.3d at 763.
In evaluating whether a petition raises a constitutional claim or question of
law, we look to the “nature of the argument advanced in the petition.” Purwantono
v. Gonzales, 498 F.3d 822, 824 (8th Cir. 2007). We have jurisdiction to review pure
questions of law, such as the definition of a statutory term. Cherichel v. Holder, 591
F.3d 1002, 1009 (8th Cir. 2010) (“[D]efining the correct legal standard . . . is a
question of law . . . .”); Hanan, 519 F.3d at 764 (reviewing criminal alien’s claim
that BIA misinterpreted the term “acquiescence” in its CAT analysis); see also
Luhiso v. Barr, 787 F. App’x 319, 321-23 (6th Cir. 2019) (addressing the merits of
the argument that the BIA erred by treating a changed country condition as a changed
personal circumstance). In addition, the Supreme Court recently clarified that we
have jurisdiction to review mixed questions of law and fact, including the proper
“application of a legal standard to undisputed or established facts.” Guerrero-
Lasprilla v. Barr, 589 U.S. ---, 140 S. Ct. 1062, 1067 (2020).
Nonetheless, this jurisdictional limitation on our review does not apply to
Sharif’s CAT claim. Just a few weeks ago, the Supreme Court determined that “[a]
CAT order is not itself a final order of removal,” and as a result, § 1252(a)(2)(C)-
(D) does not divest the courts of appeals of jurisdiction to review factual challenges
to CAT orders. Nasrallah v. Barr, 590 U.S. ---, 140 S. Ct. 1683, 1691, 1694 (2020).
Accordingly, we review the BIA’s denial of Sharif’s motion to reopen his CAT claim
for abuse of discretion. See Mwangi v. Barr, 934 F.3d 818, 819 (8th Cir. 2019).
remained an aggravated felony in light of the Supreme Court’s decision in
Moncrieffe v. Holder, 569 U.S. 184, 206 (2013). But Sharif did not raise this
challenge in his petition to this court, and we consider him to have waived the issue.
See Chong Toua Vue v. Barr, 953 F.3d 1054, 1058 (8th Cir. 2020); Alyas v.
Gonzales, 419 F.3d 756, 760 (8th Cir. 2005) (“Because [petitioner] does not argue
these issues in his brief, we do not consider them as part of the petition for review.”).
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A.
With these considerations in mind, we determine that we lack jurisdiction to
review the vast majority of Sharif’s arguments concerning his motion to reopen his
asylum and withholding of removal claims because they merely constitute a brief in
opposition to the BIA’s factual findings. Sharif contends that the BIA
mischaracterized the evidence in the record regarding Al-Shabaab’s capabilities,
ignored and distorted evidence of Al-Shabaab’s operational focus, ignored evidence
of the formation of ISIS-Somalia, and equated two distinct Somali governmental
bodies. Put differently, Sharif does not assert that the facts as found by the BIA,
taken on their own terms, are legally sufficient to constitute a change in country
conditions that materially affects his eligibility for asylum or withholding of
removal. Thus, Sharif’s argument concerning changed country conditions is aimed
directly at the agency’s factual determinations.
We reach this conclusion because, whatever the effect of the recent holding
in Guerrero-Lasprilla concerning our jurisdiction to review petitions presenting
mixed questions of law and fact,2 we think it apparent that we remain barred from
2
Prior to Guerrero-Lasprilla, our sister circuits disagreed as to whether
questions of changed circumstances or changed country conditions could present a
question of law exempt from the criminal-alien bar. Compare Agonafer v. Sessions,
859 F.3d 1198, 1203 (9th Cir. 2017) (“[J]urisdiction is . . . proper because we are
called upon to apply the legal standard for prevailing on a motion to reopen based
on changed country conditions to the established facts in this case.”), and Ramadan
v. Gonzales, 479 F.3d 646, 650 (9th Cir. 2007) (per curiam) (concluding “questions
of law” included “the application of statutes or regulations to undisputed facts” and
thus the court had jurisdiction to review the BIA’s determination of whether
circumstances had changed), with Fabian-Soriano v. Barr, 925 F.3d 552, 556 n.4
(1st Cir. 2019) (noting that the Ninth Circuit’s approach in Ramadan “is not our
law”), and Gutierrez-Rostran v. Lynch, 810 F.3d 497, 499 (7th Cir. 2016) (“[I]ssues
of changed or extraordinary circumstances are questions of fact that lie outside the
realm of § 1252(a)(2)(D).”). But our precedent was clear: we had not adopted the
Ninth Circuit’s approach, see Atsiz v. Gonzales, 231 F. App’x 526, 528 (8th Cir.
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reviewing the factual elements of those questions when the criminal-alien bar
applies. See Mohamed v. Barr, 797 F. App’x 1019, 1025 (6th Cir. 2020) (noting that
whether country conditions have changed “is a predominantly factual
determination” and that when a claim “relies on contesting . . . factual
determinations,” “the jurisdictional bar remains intact” (emphasis added)).
In coming to this conclusion, we are guided by several considerations. First,
“no administrative case can be decided without applying some law to some facts,”
Viracacha v. Mukasey, 518 F.3d 511, 515 (7th Cir. 2008), and we do not read the
Supreme Court as instructing us to convert every issue into a question of law that
side steps the criminal-alien bar. Instead, in Guerrero-Lasprilla, the Supreme Court
held that we have jurisdiction to review the “application of a legal standard to
undisputed or established facts.” 140 S. Ct. at 1067 (emphasis added). We believe
the Supreme Court meant what it said. See Mathis v. United States, 579 U.S. ---,
136 S. Ct. 2243, 2254 (2016) (“[A] good rule of thumb for reading our decisions is
that what they say and what they mean are one and the same . . . .”).
Accordingly, we refuse to adopt a reading of § 1252(a)(2)(D) that “vitiates all
clauses in the statute.” Viracacha, 518 F.3d at 515; see also Ramadan v. Keisler,
504 F.3d 973, 978 (9th Cir. 2007) (O’Scannlain, J., dissenting from the denial of
rehearing en banc) (pointing out that even the legislative history marshaled as
support by the Ramadan panel stated that, for mixed questions of law and fact, “the
court should analyze it to the extent that there are legal arguments, but should not
review any factual elements”). Thus, if a petition raises a “mixed question of law
and fact,” we review the question to the extent it turns on an interpretation of law,
but we emphasize that we are precluded from addressing factual disputes that lurk
within those questions. See Kassim v. Barr, 954 F.3d 1138, 1141 n.1 (8th Cir. 2020)
(distinguishing between challenges to the factual part of the hardship inquiry and
2007) (per curiam), because “[e]xamining changed country conditions is a factual
issue,” Thobhani v. Holder, 536 F. App’x 676, 677 (8th Cir. 2013) (per curiam);
Hanan v. Mukasey, 519 F.3d at 763; Hanan v. Gonzales, 449 F.3d 834, 837 (8th Cir.
2006).
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challenges that present a question of law); Jun Min Zhang v. Gonzales, 457 F.3d
172, 176-79, 178 n.3 (2d Cir. 2006) (Cabranes, J., concurring) (rejecting proposed
interpretation of “questions of law” that would permit “any discretionary, fact-based
decision” to be “recast as a definitional inquiry involving the application[] of
contoured statutory language to a particular set of facts” (alteration in original)
(internal quotation marks omitted)).
We adhere to these strictures because “careful attendance to the bounds of our
jurisdiction ‘is not a mere nicety of legal metaphysics,’ but essential to the rule of
law in ‘a free society.’” Iliev v. Holder, 613 F.3d 1019, 1028 (10th Cir. 2010)
(Gorsuch, J.) (quoting U.S. Catholic Conference v. Abortion Rights Mobilization,
Inc., 487 U.S. 72, 77 (1988)). “After all, ‘[t]he courts, no less than the political
branches of the government, must respect the limits of their authority.’” Id. (quoting
U.S. Catholic Conference, 487 U.S. at 77)).
Here, Sharif’s claims merely invite us to second guess the BIA’s fact-finding
as to the conditions in Somalia and, simply put, do not present a question of law at
all. See Barajas-Salinas v. Holder, 760 F.3d 905, 907 (8th Cir. 2014) (noting that
the petitioner’s “quarrel” with the BIA’s “evaluation of . . . factual information . . .
presents no question of law”). Indeed, Sharif did not present his arguments as
meriting de novo review, but he instead claimed the BIA abused its discretion. This
framing is a telling admission of the nature of his arguments considering
longstanding precedent that we review questions of law de novo. See, e.g., Jima v.
Barr, 942 F.3d 468, 472 (8th Cir. 2019); Doe v. Holder, 651 F.3d 824, 828 (8th Cir.
2011).
Elsewhere, Sharif resorts to the rhetoric of law, contending the BIA erred “as
a matter of law” in “failing to consider the escalating threat of Al-Shabaab.” In
reality, however, Sharif’s contentions are an “attempt[] to create jurisdiction by
cloaking an abuse of discretion argument in constitutional or legal garb.” See
Urrutia Robles v. Barr, 940 F.3d 420, 421 (8th Cir. 2019). Even when arguing the
BIA committed legal error, Sharif revisits his contentions that the BIA’s fact-finding
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is “unsubstantiated” and that the “evidence . . . show[s]” Al-Shabaab did not target
Americans or other westerners in 2008. But the BIA found the opposite, concluding
that at the time of Sharif’s initial hearing, “Islamic extremists bombed cinemas,
attacked persons whom they asserted were not behaving ‘appropriately,’ killed
numerous expatriates, forcefully shaved the heads of persons they accused of
wearing inappropriate hairstyles, and imposed a ban on smoking and music.” Thus,
Sharif’s complaint is that the BIA did not agree with him regarding the conditions
in Somalia in 2008—precisely the kind of dispute with fact-finding determinations
courts continue to lack jurisdiction to review.
In his reply brief, Sharif changes course and argues that “the BIA committed
legal error” in evaluating changed country conditions “by failing to analyze” how
general conditions of unrest in Somalia, while constant, may have changed in ways
that increased the likelihood he will face harm. He thus contends “the BIA
incorrectly applied [the changed country conditions] legal standard.” To the extent
this argument presents a question of law, it was untimely raised. See Navarijo-
Barrios v. Ashcroft, 322 F.3d 561, 564 n.1 (8th Cir. 2003).
B.
Our jurisdiction to review Sharif’s arguments pertaining to his CAT claim is
broader, see Nasrallah, 140 S. Ct. at 1694, but the result is the same. In the absence
of the criminal-alien bar, we review the denial of a motion to reopen for abuse of
discretion. See Caballero-Martinez, 920 F.3d at 549. The BIA abuses its discretion
in denying a motion to reopen when “it gives no rational explanation for its decision,
departs from its established policies without explanation, relies on impermissible
factors or legal error, or ignores or distorts the record evidence.” Quinteros v.
Holder, 707 F.3d 1006, 1009 (8th Cir. 2013). We conclude the BIA did not abuse
its discretion.
“To qualify for relief under the CAT, an alien must show ‘that it is more likely
than not that he or she would be tortured if removed to the proposed country of
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removal.’” Malonga v. Mukasey, 546 F.3d 546, 554-55 (8th Cir. 2008) (quoting 8
C.F.R. § 1208.16(c)(2)). Thus, to meet his burden on a motion to reopen, Sharif
needed to demonstrate a change in country conditions in Somalia that materially
affected his likelihood of facing torture. See Zeah, 828 F.3d at 704; Ramos-Braga
v. Sessions, 900 F.3d 871, 882 (7th Cir. 2018) (holding that the BIA did not abuse
its discretion in denying petitioner’s motion to reopen where he failed to present
evidence that materially affected his likelihood of facing torture). The relevant
regulations define “torture” as “any act by which severe pain or suffering . . . is
intentionally inflicted on a person for such purposes as . . . punishing him or her for
an act he or she or a third person has committed.” Ramirez-Peyro v. Holder, 574
F.3d 893, 899 (8th Cir. 2009) (quoting 8 C.F.R. § 1208.18(a)(1)). “The ‘pain or
suffering’ must be ‘inflicted by or at the instigation of or with the consent or
acquiescence of a public official or other person acting in an official capacity.’” Id.
(quoting 8 C.F.R. § 1208.18(a)(1)).
With regards to his CAT claim, Sharif appears primarily to argue that the BIA
abused its discretion in denying his motion to reopen because he demonstrated that
Somalia’s new government—the Federal Government of Somalia (“FGS”)—has
been infiltrated by Al-Shabaab and thus is now more likely than the previously
existing government—the Transitional Federal Government (“TFG”)—to acquiesce
to his torture by Al-Shabaab. But Sharif did not present evidence to the BIA
regarding the TFG’s likelihood of acquiescing to his torture or the infiltration of the
TFG by Islamic extremists in 2008. Indeed, Sharif admits as much.
Because Sharif presented no evidence regarding the previous infiltration of
Al-Shabaab into the TFG or the TFG’s willingness to acquiesce to his torture, the
BIA did not abuse its discretion in determining he had not shown facts that “would
likely change the result in the case” on account of a material change in country
conditions. See Romero-Larin v. Sessions, 733 F. App’x 847, 851 (8th Cir. 2018)
(per curiam); see also Mohamed, 797 F. App’x at 1026 (“On his claim regarding Al-
Shabaab’s infiltration of the Somali government, the immigration judge found this
did not amount to changed country conditions, since Al-Shabaab controlled major
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governmental functions in Somalia beginning in 2008. While Mohamed is correct
that this is not the same [government] as the FGS, which was established after 2009,
this is a distinction without a difference with respect to the threat he faces from Al-
Shabaab in Somalia.”).
C.
Sharif next argues that the BIA erred when it took administrative notice of a
State Department report on human rights practices in Somalia that was unavailable
to Sharif at the time of his original hearing in 2008. According to Sharif, the BIA
misinterpreted 8 U.S.C. § 1229a(c)(7)(C)(ii) and ignored its own precedent
construing the statute. See In re S-Y-G-, 24 I. & N. Dec. 247, 253 (BIA 2007). This
contention is without merit. See Zeah, 828 F.3d at 703-04.
D.
We next turn to Sharif’s motion to remand. As a general matter, remand is
warranted when a petitioner presents new evidence that “is of such a nature . . . that
if proceedings before the IJ were reopened . . . the new evidence would likely change
the result in the case.” Clifton v. Holder, 598 F.3d 486, 492 (8th Cir. 2010). But
“where a motion to remand is really . . . a motion to reopen . . . , it must comply with
the substantive requirements for such motions.” Id. Here, Sharif’s motion to remand
was functionally equivalent to a motion to reopen because his “motion to reopen had
never been granted.” See In re L-V-K-, 22 I. & N. Dec. 976, 979 (BIA 1999). Thus,
Sharif needed to demonstrate that the evidence attached in his motion to remand,
when considered with other evidence, met his “heavy burden” to show a “material
change in circumstances or conditions” in Somalia. See Zeah, 828 F.3d at 702; In
re S-Y-G-, 24 I. & N. Dec. 247, 258 (BIA 2007). The criminal-alien bar “applies not
only to the underlying removal order but also to any subsequent motion to remand,
reopen, or reconsider the order.” Arreola v. Holder, 324 F. App’x 506, 508 (7th Cir.
2009) (per curiam).
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We first determine that we lack jurisdiction to review Sharif’s arguments to
the extent they concern his asylum and withholding of removal claims. The BIA
found remand was not warranted because Sharif’s new evidence failed to
demonstrate a change—as opposed to a continuation—of “poor” conditions in
Somalia. On appeal, Sharif contends that the BIA “failed to grant adequate
consideration” to the new evidence he produced and “mischaracterize[d]” his claim
by finding that he had not produced evidence concerning relevant conditions at the
time of his initial removal proceeding. Sharif’s petition then does not present
“undisputed facts” but instead requires us to evaluate the country conditions for
Somalia in 2008. Indeed, it is clear that Sharif did not raise a claim alleging error in
“the application of a legal standard to undisputed or established facts,” Guerrero-
Lasprilla, 140 S. Ct. at 1067, because he provides no legal argument on the standard
for “material change in country conditions” at all but instead directly challenges the
BIA’s fact-finding, contending it abused its discretion in determining the relevant
country conditions in 2008. This dispute, as far as it concerns his asylum and
withholding of removal claims, is thus beyond our jurisdiction to review. See
Vargas v. Holder, 567 F.3d 387, 391 (8th Cir. 2009) (noting that an argument that
the “BIA failed to consider all factors presented” amounted “only to a disagreement
with the outcome of the BIA’s weighing of those factors”); Arreola, 324 F. App’x
at 508.
Sharif also claims that the BIA committed “legal error” by “failing to
recognize that [he] could not have supplied evidence of the treatment of
Americanized Somali deportees during April 2008” because removals from the
United States to Somalia were suspended at that time. Sharif’s contention lacks
merit because the BIA did not require him to present evidence regarding the
conditions faced by “Americanized Somalis” in 2008 but instead found that he had
failed to present any evidence concerning similarly situated individuals such as
“criminal deportees,” “members of minority clans,” or “individuals viewed as
Christians due to their tattoos” that would support his claim regarding country
conditions in 2008. The BIA did not err in requiring evidence of country conditions
in 2008 relevant to Sharif’s claims. See Zeah, 828 F.3d at 703-04.
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Finally, we cannot say the BIA abused its discretion in determining that
further proceedings on Sharif’s motion to reopen his CAT claim were not warranted
by the newly presented evidence attached to his motion to remand. Caballero-
Martinez, 920 F.3d at 549 (reviewing “the denial of a motion to remand . . . for abuse
of discretion” in the absence of the criminal-alien bar). Though she alleged that
Sharif’s brother had been harassed by government authorities, Sharif’s sister did not
discuss torture in her newly produced affidavit. Instead, she specifically said that
Sharif’s brother was detained for a short period of time “without being seriously
hurt.” As a result, the letter did not present new evidence that demonstrated a change
in country conditions material to Sharif’s CAT claim. See Ramirez-Peyro, 574 F.3d
at 899 (explaining that the “pain or suffering” alleged by a petitioner must be
“severe” in order to constitute torture meriting CAT relief).
E.
Finally, Sharif argues that the BIA’s “wholesale failure to consider [his]
evidence and arguments” in evaluating both his motion to reopen and his motion to
remand violated his right to due process as protected by the Fifth Amendment. As
support, Sharif contends that the different outcomes between his case and the cases
of similarly situated Somalis illustrate that Sharif’s proceedings “were infected with
constitutional and legal error.” Because this allegation implicates a constitutional
question, we have jurisdiction to review it. Hanan, 519 F.3d at 764. Nonetheless,
this argument is untimely as it was only raised in Sharif’s reply brief. Indeed, as
with the “changed country conditions” argument above, Sharif initially argued the
BIA abused its discretion in weighing the evidence, only raising in passing
“concerns” about “the due process afforded” Sharif. Once confronted with the
criminal-alien bar, Sharif shifted course in his reply brief, framing his argument as
a due process claim. We generally do not consider arguments first raised in a reply
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brief that, like here, were not developed in the opening brief.3 See Navarijo-Barrios,
322 F.3d at 564 n.1.
Even had Sharif properly raised this argument, the record does not support it.
Hearings before the BIA must be “fundamentally fair,” Al Khouri v. Ashcroft, 362
F.3d 461, 464 (8th Cir. 2004), and the petitioner “must be given the opportunity to
fairly present evidence, offer arguments, and develop the record,” Tun v. Gonzales,
485 F.3d 1014, 1025 (8th Cir. 2007). But “[t]he BIA is entitled to a presumption of
regularity,” and “it is not required by the Constitution to mention every piece of
evidence that it considered.” Doe, 651 F.3d at 831.
Here, the BIA addressed almost all of Sharif’s arguments in its opinion. See
id. (noting that “an alien has no constitutional right to a full-blown written opinion
on every issue” and affirming because each of petitioner’s substantial issues was
either addressed by the BIA or rendered irrelevant by its decision). The BIA noted
that it had “considered the entirety of [Sharif’s] claims on appeal,” and it specifically
discussed the declaration of Christopher Anzalone, an expert on Somalia, upon
which Sharif relied extensively in his motion to reopen. It also weighed other
documentary evidence submitted by Sharif and provided a thorough analysis as to
why he had not demonstrated a material change in country conditions. It is “not
necessary for the BIA to list every possible positive and negative factor in its
decision,” and it has “no duty to write an exegesis on every contention.” Averianova
3
Furthermore, we would not address Sharif’s due process complaint if it were
timely raised. We have long held that we are precluded from reviewing
“unexhausted claims for a violation of procedural due process.” Ramirez, 902 F.3d
at 770; Gonzalez v. Chertoff, 454 F.3d 813, 816 (8th Cir. 2006). Sharif did not claim
his due process rights were violated in his appeal before the BIA, nor did he file a
motion for reconsideration alleging a due process violation by the BIA. See Rivera-
Guerrero, 926 F.3d at 1053 (denying review of due process claim where petitioner
failed to present claim to the BIA). Thus, the issue is unexhausted, and we are
precluded from reviewing it.
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v. Holder, 592 F.3d 931, 936 (8th Cir. 2010). The record simply does not support
Sharif’s claim that the BIA did not consider his submissions.4
III.
For the foregoing reasons, we deny Sharif’s petition in part and dismiss the
remainder for lack of jurisdiction.
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4
Sharif also briefly suggests that the BIA’s refusal to reopen proceedings on
its own motion “raises significant concerns as to the due process afforded” him. We
have repeatedly held that aside from “colorable” constitutional claims, Chong Toua
Vue, 953 F.3d at 1057, “[w]e lack jurisdiction to review the [BIA’s] refusal to reopen
a case sua sponte, because there is no meaningful standard against which to judge
the agency’s exercise of discretion, and the determination is committed to agency
discretion by law,” Barajas-Salinas, 760 F.3d at 907 (citing Tamenut v. Mukasey,
521 F.3d 1000, 1001, 1004-05 (8th Cir. 2008) (en banc) (per curiam)). Sharif offers
no explanation as to how the BIA’s failure to reopen proceedings on its own motion
violated his due process rights. We thus do not address the argument. See Tamenut,
521 F.3d at 1005 (rejecting due process claim where petitioner “point[ed] to nothing
that call[ed] into doubt the fundamental fairness of the procedures employed” by the
BIA). And although Sharif points out that some of our sister circuits have recognized
an exception permitting appellate review “when the BIA has relied on an incorrect
legal premise” in refusing to exercise its discretionary authority to reopen a case,
see, e.g., Bonilla v. Lynch, 840 F.3d 575, 589 (9th Cir. 2016), we recently “shut the
door on this exception,” Chong Toua Vue, 953 F.3d at 1057.
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