Zabadi v. Holder ( 2011 )

FILED
NOT FOR PUBLICATION JAN 04 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
SAMIH HUSSEIN ZABADI, No. 05-76565
Petitioner, Agency No. A070-830-132
v.
MEMORANDUM *
ERIC H. HOLDER JR., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted December 7, 2010
San Francisco, California
Before: REINHARDT, HAWKINS, and N.R. SMITH, Circuit Judges.
Samih Hussein Zabadi (“Zabadi”), convicted of sexual abuse of a minor in
California and subjected to deportation proceedings through Department of Homeland
Security’s (“DHS”) “Operation Predator” program, seeks review of a final order of
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
deportation,1 arguing the Board of Immigration Appeals (“BIA”) erred when it (1)
reversed the Immigration Judge’s (“IJ”) discretionary grant of waiver of inadmissibility
under Immigration and Nationality Act (“INA”) § 212(h), and (2) stated, in the course
of affirming the IJ’s denial of DHS’s request to designate Jordan and Israel as countries
for deportation, that nothing in its opinion barred DHS from acting “on its own
authority” to designate a country. We deny the petition for review as to all claims.
Reversal of Discretionary Grant of § 212(h) Relief
Zabadi argues that his due process rights were violated when the BIA reversed
the IJ’s discretionary favorable grant of waiver of inadmissibility under § 212(h) and
adjustment of status under INA § 245 because the BIA acted pursuant to an established
policy of categorically denying § 212(h) relief to aliens apprehended through
Operation Predator, and because DHS prosecutors and other officials exerted improper
influence over the Executive Office for Immigration Review’s (“EOIR”) adjudicators
through, inter alia, advertising campaigns and ex parte communications. Zabadi
primarily requests transfer to a district court for factual development of these claims
1
Zabadi’s deportation proceedings commenced in May 1996, but the final order
did not issue until November 2005. Thus, Zabadi’s deportation proceeding was
pending when Congress passed the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009 (1996), in July 1996.
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under 28 U.S.C. § 2347(b)(3), but argues in the alternative for reversal and remand for
a full and fair determination of his eligibility for § 212(h) relief.
No Colorable Constitutional Claim
Although 8 U.S.C. §§ 1252(a)(2)(B)(i), (a)(2)(C) bar this court’s review of an
IJ’s or the BIA’s discretionary decision to deny relief, we nonetheless retain
jurisdiction to entertain “constitutional claims or questions of law raised upon petition
for review filed with an appropriate court of appeals[.]” 8 U.S.C. § 1252(a)(2)(D); see
Mendez-Castro v. Mukasey, 552 F.3d 975, 978 (9th Cir. 2009) (citing Martinez-Rosas
v. Gonzales, 424 F.3d 926, 930 (9th Cir. 2005)). This is because “a due process
violation [by the BIA] is not an exercise of discretion.” Reyes-Melendez v. INS, 342
F.3d 1001, 1008 (9th Cir. 2003).
However, “a petitioner may not create the jurisdiction that Congress chose to
remove simply by cloaking an abuse of discretion argument in constitutional garb.”
Torres-Aguilar v. INS, 246 F.3d 1267, 1271 (9th Cir. 2001). Rather, he “must allege
at least a colorable constitutional violation.” Id.; see also Mendez-Castro, 552 F.3d at
978. “To be colorable in this context, the alleged violation need not be substantial, but
the claim must have some possible validity.” Martinez-Rosas, 424 F.3d at 930(quoting Torres-Aguilar, 246 F.3d at 1271) (internal quotation marks omitted).
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Zabadi’s claims do not rise to this level. Although the Fifth Amendment
guarantees an alien due process in deportation proceedings, including the right to a full
and fair hearing, an impartial adjudicator, and evaluation of the merits of his particular
case, see Torres-Aguilar, 246 F.3d at 1270, none of Zabadi’s allegations or proffered
evidence demonstrates that he was deprived of these rights. In fact, the BIA explicitly
acknowledged his outstanding equities, but ultimately found–in a reasoned and
thorough opinion examining the evidence considered by the IJ in his case–that it would
still deny relief in the exercise of discretion because the factors supporting the IJ’s
favorable grant could not overcome the “extremely serious nature” of Zabadi’s
particular crime. Further, the evidence Zabadi proffers fails to show a plausible
connection between DHS actions, IJ rates for denial of discretionary relief, and any
bias or prejudgment on the part of the BIA as a distinct subset of EOIR adjudicators.
Zabadi simply has not shown that any policy of categorical prejudgment exists, nor that
any such bias was applied in his case.
Zabadi’s failure to identify a colorable constitutional claim in the petition or
record deprives this court of jurisdiction to consider his petition on the merits.
Mendez-Castro, 552 F.3d at 978; Torres-Aguilar, 246 F.3d at 1271. Because a
demonstrably colorable claim is also a prerequisite to a § 2347(b)(3) transfer, see
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Gallo-Alvarez v. Ashcroft, 266 F.3d 1123, 1129 (9th Cir. 2001), both the petition for
review of Zabadi’s constitutional claims and his motion to transfer must be denied.
Country Designation
The BIA ultimately affirmed the IJ’s determination that Kuwait was the only
properly designated country for deportation, as well as its rejection of DHS’s requests
to designate Jordan and Israel. Zabadi did not contest the designation of Kuwait in his
petition or on appeal to the BIA. Although the BIA decided the issue in his favor,
Zabadi argues that the BIA erred in accompanying its affirmation with the statement
that “nothing in either this Board’s order or the Immigration Judge’s ruling below
forbids the DHS from acting on its own authority to designate a country, or forbids the
parties from litigating that issue in any forum outside of the Executive Office of
Immigration Review.”
Zabadi challenges the BIA’s legal analysis, arguing that in so stating, the BIA
effectively granted DHS a free license to deport him to any country without notice, and
without any avenue for judicial review, in violation of the statutory regime governing
country designation under former INA § 243(a)(7). As such, he urges this court to
exercise jurisdiction to decide the legal question of that section’s proper statutory
interpretation in light of subsequently enacted regulations.
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However, because Zabadi has provided no evidence or argument that deportation
to a destination outside Kuwait is likely or imminent, there appears to be no currently
redressable injury. There is simply nothing demonstrating that the harm Zabadi seeks
to avoid will ever happen, much less that it is likely to occur. As such, his claim is
unripe because the threat of injury Zabadi alleges “‘rests upon contingent future events
that may not occur as anticipated, or indeed may not occur at all.’” Bova v. City of
Medford, 564 F.3d 1093, 1096 (9th Cir. 2009) (citing Texas v. United States, 523 U.S.
296, 300 (1998)). Cf. Reno v. Catholic Soc. Servs., 509 U.S. 43, 57 (1993) (requiring
that alien present ripe claim to merit judicial review of order affecting adjustment of
status application); She v. Holder, — F.3d —, No. 06-71794, 2010 U.S. App. LEXIS
25426, at *15-17 (9th Cir. 2010) (IJ correctly treated as unripe in initial proceedings
petitioner’s applications for CAT protection and withholding of removal to Burma,
where Taiwan was the proposed country of removal and there was no evidence that the
government would remove her to Burma; petitioner could move to reopen proceedings
and reassert her applications and due process claims if DHS changed country
designation after final order issued.).
Urging that this is his only forum for review of his legal claim because of the
statutory limitations set forth in 8 U.S.C. §§ 1252(a)(1), (b)(9), and (g), Zabadi
repeatedly expresses fear that he will be “whisked away” in the middle of the night,
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deported anywhere in the world, and left with no forum or possibility of challenging
deportation to a country in which he might suffer torture or persecution. The
government agreed at oral argument that if the court were to find Zabadi’s claim unripe
here, it would refrain from deporting Zabadi at a time and in such a manner that he
would be unable meaningfully to challenge the government’s designation of another
country for deportation. It further agreed that, if it later decided to change its
designation from Kuwait to any other country, it would not oppose an appropriate
petition or appeal by Zabadi for review of the new country designation on the grounds
that (1) §§ 1252(a)(1) or (b)(9) bars challenge in any forum outside this petition, or (2)
§ 1252(g) bars challenge of DHS’s actions in unilaterally designating a country after
immigration courts issue the final order of deportation.
Taking the government at its word, we find Zabadi’s petition for review of his
legal claim unripe at this stage of the proceedings. We are thus without jurisdiction to
consider it. Should DHS decide to change the designated country of deportation,
Zabadi’s claim will ripen, and he will be free to pursue appropriate legal remedies.
PETITION DENIED.
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