Ishak v. Gonzales

United States Court of Appeals
For the First Circuit
No. 03-2736
TITO IBRAHIM BARSOUM ISHAK,
Petitioner,
v.
ALBERTO R. GONZALES*, ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
No. 04-1138
TITO IBRAHIM BARSOUM ISHAK,
Petitioner, Appellant,
v.
ALBERTO R. GONZALES, ATTORNEY GENERAL, ET AL.,
Respondents, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
[Hon. Robert B. Collings, U.S. Magistrate Judge]
*
Alberto Gonzales was sworn in as Attorney General of the
United States on February 3, 2005. We have substituted him for
John Ashcroft, previous holder of that office, as the respondent.
See Fed. R. App. P. 43(c)(2).
Before
Boudin, Chief Judge,
Campbell, Senior Circuit Judge,
and Gertner**, District Judge.
Anthony Drago, Jr. for petitioner, appellant.
Ernesto H. Molina, Jr. Senior Litigation Counsel, Office of
Immigration Litigation, Civil Division, U.S. Department of Justice,
with whom Peter D. Keisler, Assistant Attorney General, Civil
Division, and David V. Bernal, Assistant Director, were on brief
for respondent, appellee.
September 6, 2005
**
Of the District of Massachusetts, sitting by designation.
CAMPBELL, Senior Circuit Judge. When we heard argument,
two matters were consolidated before us: (1) Ishak's petition for
review of the Board of Immigration Appeals' (BIA) denial of his
motion to reconsider its decision refusing him asylum and ordering
his removal; and (2) Ishak's appeal from the district court's
dismissal, for lack of subject matter jurisdiction, of the habeas
corpus petition he had brought to contest his deportation.
Before we had decided, the Real ID Act of 2005, Pub. L.
No. 109-13, 119 Stat. 231 (2005) ("Real ID Act"), went into effect.
This gave new and dispositive support to the district court's
holding that it lacked jurisdiction over Ishak's habeas claims. It
also, however, transferred these same claims to our court, in the
form of a new, statutorily-created petition for review. Because of
the relevance of the Real ID Act, we invited the parties to submit
supplemental briefing containing their views on its effects here.
We now affirm the district court's dismissal of the habeas corpus
petition for lack of jurisdiction, and we dismiss on the merits
both Ishak's original petition for review and the new petition for
review established by operation of the Real ID Act relative to
Ishak's habeas claims in the district court.
I.
Background
Ishak, a native and citizen of Egypt, entered the United
States on June 23, 1999 as a tourist. He overstayed his visa and
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applied for asylum on July 21, 2000, claiming that he suffered past
persecution on account of his religion, Coptic Orthodox
Christianity, his membership in a particular social group, and his
political opinion. Ishak also applied for withholding of removal,
voluntary departure, and relief under the Convention Against
Torture.
An asylum officer of the Immigration and Naturalization
Service (INS)1 conducted an interview of Ishak and determined that
he was ineligible for asylum. The asylum officer outlined her
assessment in a memorandum in which she recommended referral to an
immigration judge (IJ). The INS denied Ishak's asylum application
and referred the case to the immigration court for further
proceedings.
On February 27, 2002, the IJ held a hearing at which
Ishak testified. The IJ rendered an oral decision, denying Ishak's
applications for asylum, withholding of removal, and relief under
the Convention Against Torture, and granting voluntary departure in
lieu of removal. In his oral decision, the IJ reviewed various
parts of the record, including the asylum officer's assessment
memorandum, which he recited verbatim. The IJ further stated that
he had "observed the demeanor of [Ishak] during the time he [had]
1
On March 1, 2003, the relevant functions of the INS were
transferred to the new Department of Homeland Security and
reorganized into the Bureau of Immigration and Customs Enforcement.
We refer to the agency throughout this opinion as the INS.
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testified" and found his "testimony to be less than candid, his
answers to be rambling, his answers not responsive to the questions
asked, and his testimony not credible concerning the reasons for
his leaving Egypt and not wanting to return to Egypt."
Ishak filed a timely appeal with the BIA. He argued that
he had provided sufficient evidence to establish his eligibility
for asylum. In the alternative, he contended that he had been
denied a fair hearing because of the lack of competent translation,
the inability to cross-examine the asylum officer after the IJ's
reliance on her findings, and the IJ's antagonistic questioning on
cross-examination.
On August 27, 2003, the BIA dismissed the appeal. The
BIA found that the IJ's adverse credibility finding was supported
by the record. Specifically, the BIA noted that it "agree[d] with
the [IJ's] characterization that [Ishak] provided unresponsive
answers and was evasive . . . when the [IJ] asked questions to
clarify implausibilities and inconsistencies in his testimony."
The BIA also found that "[Ishak’s] testimony regarding his arrest
and false accusation [was] too implausible and [had] too many
unresolved inconsistencies to establish his eligibility for
asylum." Moreover, as to Ishak’s claim that he had no opportunity
to cross-examine the asylum officer after the IJ had relied on her
findings, the BIA found that the IJ had "merely agreed with the
asylum officer's credibility finding, but [had] made his own
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credibility finding based on his own observations at the merits
hearing."
Ishak did not file with this court a petition for direct
review of the BIA's decision disposing of his appeal. See 8 U.S.C.
§ 1252(a)(1), (b) (2000). On September 26, 2003, Ishak instead
filed a timely motion with the BIA to reconsider its August 27,
2003 decision dismissing his appeal. Ishak repeated the arguments
he had made in his appeal, and asserted that the BIA had made
errors of fact and law in conflict with this court's June 2003
decision of El Moraghy v. Ashcroft, 331 F.3d 195 (1st Cir. 2003),
issued after he had filed his appeal but before the BIA entered its
own decision dismissing the appeal. Ishak claimed that, in light
of El Moraghy, the IJ had misused the country condition reports as
a test for corroboration. See id. at 204.
On December 3, 2003, the BIA rejected Ishak's motion to
reconsider. The BIA stated that it had considered the same
arguments made by Ishak in the motion to reconsider before
rendering an initial decision in his case. The BIA "decline[d] to
revisit" those arguments and denied the motion.
On December 24, 2003, Ishak filed with this court a
timely petition for direct review of the BIA's denial of
reconsideration. See 8 U.S.C. § 1252(b) (2000). In his petition
for review, Ishak requested a stay of removal, which this court
denied.
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On January 20, 2004, while the above petition for review
of the BIA's denial of reconsideration was pending in this court,
Ishak filed in the United States District Court for the District of
Massachusetts a petition for writ of habeas corpus, pursuant to 28
U.S.C. § 2241, alleging that the immigration authorities had denied
him the right to a fair and impartial hearing. He contended that
the IJ had misused the country condition reports and had failed to
make independent findings, as required by El Moraghy, and that the
IJ's questioning on cross-examination was indicative of the unfair
hearing he received. The United States filed a return to the
habeas petition, arguing that the district court lacked habeas
jurisdiction. According to the government, determinations of the
kind Ishak sought to have reviewed in the district court could only
be reviewed by the court of appeals in a timely-filed statutory
petition for review. As Ishak had failed to pursue that avenue
when open to him, the district court lacked jurisdiction to deal
with the issues that could have been but were not presented via the
review petition mechanism.
On January 23, 2004, the district court dismissed
Ishak's habeas petition "for lack of subject matter jurisdiction."
Ishak timely appealed to this court from the dismissal order. By
order dated January 23, 2004, this court granted Ishak's emergency
motion for stay of removal. We then consolidated (1) Ishak's
petition for review of the BIA's denial of the motion to
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reconsider; and (2) his appeal from the district court's dismissal
of the habeas petition.
The above matters were briefed and argued to us. Before
we could render a decision, however, the President signed into law
the Real ID Act, Pub. L. No. 109-13, 119 Stat. 231. This
legislation largely mooted the parties' original arguments
concerning whether the district court had habeas jurisdiction to
resolve the due process claims Ishak put to that court. The Real
ID Act provides unequivocally that a petition for direct review in
the court of appeals shall be the exclusive means for judicial
review of an order of removal, and that cases pending in the
district court on the date of enactment challenging a final
deportation order shall be transferred, in the form of petitions
for review, to the courts of appeals. Real ID Act § 106, Pub. L.
No. 109-13, 119 Stat. at 310-11. Cases so transferred are not
subject to the thirty-day filing deadline in section 242(b)(1) of
the Immigration and Nationality Act (INA). Id. § 106(c), 119 Stat.
at 311; see infra.
Because of the Real ID Act's relevance, we invited and
received supplemental briefing from the parties on its impact upon
their contentions. With the benefit of this additional briefing,
we now address, in their altered form, the issues before us.
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II.
Jurisdiction of the District Court
A. Under Prior Law
Prior to enactment of the Real ID Act, the courts of
appeals were divided over whether the district courts possessed
habeas jurisdiction to consider constitutional challenges to
deportation orders that so-called non-criminal aliens2 could but
did not raise by means of direct petitions for review filed in the
courts of appeals.3 Our circuit had left open whether, in a case
like Ishak's, habeas review was an alternative to a timely-filed
petition for review in the court of appeals. See Seale v. INS, 323
F.3d 150, 153 (1st Cir. 2003).
In its original argument made to us prior to enactment of
the Real ID Act, the government contended that, under then-existing
law, Ishak lacked the right to challenge his deportation by habeas
2
We use "criminal aliens" as shorthand for aliens made
deportable by reason of having been convicted of crimes while in
this country which, by law, were grounds for deportation. Non-
criminal aliens are those who, like Ishak, are deportable for
reasons other than criminal behavior while here.
3
Compare, e.g., Riley v. INS, 310 F.3d 1253 (10th Cir. 2002)
(holding that district courts have jurisdiction over habeas
petitions brought by non-criminal aliens); Liu v. INS, 293 F.3d 36(2d Cir. 2002) (same); Chmakov v. Blackman, 266 F.3d 210 (3d Cir.
2001) (same), with Laing v. Ashcroft, 370 F.3d 994, 999-1000 (9th
Cir. 2004) (dismissing habeas petition because alien failed to file
a timely petition for direct review); Lopez v. Heinauer, 332 F.3d
507, 511 (8th Cir. 2003) ("Because judicial review was available to
[the noncriminal alien], the district court was not authorized to
hear this § 2241 habeas petition.").
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corpus. It argued that the provisions of the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132,
110 Stat. 1214 (1996), and the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208,
110 Stat. 3009 (1996), stripped the district court of jurisdiction
over habeas petitions brought by non-criminal aliens. Ishak
replied that, to the contrary, the Supreme Court's decision in INS
v. St. Cyr, 533 U.S. 289 (2001), addressing the deportation of
criminal aliens, should be broadly read to provide that,
notwithstanding AEDPA and IIRIRA, district courts retained habeas
jurisdiction over non-criminal aliens' objections to a deportation
order. Id. at 314. Those arguments are no longer germane,
however, given enactment of the Real ID Act which, in the plainest
of language, deprives the district courts of jurisdiction in
removal cases.4
B. Impact of the Real ID Act
Shortly after briefing and oral argument in this case,
the Real ID Act took effect. See Pub. L. No. 109-13, 119 Stat. 231(2005). The Real ID Act amended section 242 of the INA, 8 U.S.C.
§ 1252, to place review of all final removal orders, for both
criminal and non-criminal aliens, in the courts of appeals. See 8
U.S.C. § 1252(a)(5), amended by Real ID Act § 106, 109 Pub. L. No.
4
Ishak raises no constitutional challenge to the provisions of
the Real ID Act amending the INA.
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13, 119 Stat. at 310-11. By channeling review to the courts of
appeals, Congress sought to streamline what it saw as "bifurcated
and piecemeal" review of orders of removal. See H.R. Conf. Rep.
No. 109-72, at 173-75 (2005).
Section 106(a)(1)(B) of the Real ID Act created new INA
§ 242(a)(5), which expressly bars habeas review, pursuant to 28
U.S.C. § 2241, of final orders of removal:
EXCLUSIVE MEANS OF REVIEW. -- Notwithstanding any other
provision of law (statutory or nonstatutory), including
section 2241 of title 28, United States Code, or any
other habeas corpus provision, and sections 1361 and 1651
of such title, a petition for review filed with an
appropriate court of appeals in accordance with this
section shall be the sole and exclusive means for
judicial review of an order of removal entered or issued
under any provision of this Act, except as provided in
subsection (e). For purposes of this Act, in every
provision that limits or eliminates judicial review or
jurisdiction to review, the terms "judicial review" and
"jurisdiction to review" include habeas corpus review
pursuant to section 2241 of title 28, United States Code,
or any other habeas corpus provision, sections 1361 and
1651 of such title, and review pursuant to any other
provision of law (statutory or nonstatutory).
8 U.S.C. § 1252(a)(5), amended by Real ID Act § 106(a)(1)(B), Pub.
L. No. 109-13, 119 Stat. at 310-11.
Section 106(a)(1)(B) of the Real ID Act also created new
INA § 242(a)(4), which provides:
Notwithstanding any other provision of law (statutory or
nonstatutory), including section 2241 of title 28, United
States Code, or any other habeas corpus provision . . .
a petition for review filed with an appropriate court of
appeals in accordance with this section shall be the sole
and exclusive means of judicial review of any cause or
claim under the United Nations Convention Against Torture
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and Other Forms of Cruel, Inhuman, or Degrading Treatment
or Punishment . . . .
8 U.S.C. § 1252(a)(4), amended by Real ID Act § 106(a)(1)(B), Pub.
L. No. 109-13, 119 Stat. at 310.
The Real ID Act also amended INA § 242(b)(9), which now
provides:
Judicial review of all questions of law and fact,
including interpretation and application of
constitutional and statutory provisions, arising from any
action taken or proceeding brought to remove an alien
from the United States under this subchapter shall be
available only in judicial review of a final order under
this section. Except as otherwise provided in this
section, no court shall have jurisdiction, by habeas
corpus under section 2241 of title 28, United States
Code, or any other habeas corpus provision, by section
1361 or 1651 of such title, or by any other provision of
law (statutory or nonstatutory), to review such an order
or such questions of law or fact.
8 U.S.C. § 1252(b)(9), amended by Real ID Act § 106(a)(2), Pub. L.
No. 109-13, 119 Stat. at 311 (emphasis added).5
The Real ID Act provided that the amendments shall take
effect on May 11, 2005, the date of the enactment of the Real ID
Act, and shall apply to cases in which the final order of removal
was issued "before, on, or after" May 11, 2005. Real ID Act §
106(b), Pub. L. No. 109-13, 119 Stat. at 311. The plain language
of these amendments, in effect, strips the district court of habeas
jurisdiction over final orders of removal, including orders issued
5
The Real ID Act does not preclude, however, district court
habeas review over challenges to detention that are independent of
challenges to removal orders. See H.R. Conf. Rep. No. 109-72, at
175.
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prior to enactment of the Real ID Act. As Ishak's final order of
removal was issued before May 11, 2005, the jurisdiction-stripping
provisions enacted by the Real ID Act apply to this case. It is
thus academic whether, in the prior legal landscape, the district
court erred or did not err in concluding that it lacked habeas
jurisdiction. Regardless whether the district court had habeas
jurisdiction under the law existing when it ordered the dismissal
of Ishak's habeas petition, Congress now has definitively
eliminated any provision for jurisdiction. We accordingly affirm
the district court's judgment dismissing Ishak's habeas petition
for lack of subject-matter jurisdiction.
III.
Transfer of Habeas Proceeding in the District Court
to the Court of Appeals as a Petition for Review
Section 106(c) of the Real ID Act provides that, if a
habeas petition challenging a final order of removal "is pending in
a district court on the date of the enactment" of the Real ID Act,
"then the district court shall transfer the case . . . to the court
of appeals for the circuit in which a petition for review could
have been properly filed under [INA § 242(b)(2)]." Pub. L. No.
109-13, 119 Stat. at 311. The court of appeals is to treat the
transferred district court case "as if it had been filed pursuant
to a petition for review under such section 242, except that
subsection (b)(1) of such section shall not apply." Id. INA §
242(b)(1), to which the above provision refers, provides that a
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"petition for review must be filed not later than 30 days after the
date of the final order of removal." 8 U.S.C. § 1252(b)(1) (2000).
Here, Ishak did not file within the thirty-day time
period a petition for review of the BIA’s order dismissing his
appeal. Instead, he filed with the BIA a motion to reconsider. He
concedes that the motion to reconsider did not toll the thirty-day
deadline. See Ven v. Ashcroft, 386 F.3d 357, 359-60 (1st Cir.
2004). Thereafter, he separately petitioned the district court for
a writ of habeas corpus claiming that the immigration proceedings
resulting in his deportation were constitutionally infirm.
Both parties agree in their supplemental filings that,
under the terms of the Real ID Act, we must now treat Ishak's
habeas case and the instant appeal from the district court's
dismissal of Ishak's habeas petition, as if the habeas case had
been filed pursuant to a timely petition for direct review of the
BIA's order affirming Ishak's deportation. This is so even though
the thirty-day period for filing a petition for review has long
since expired. See Real ID Act § 106(c), Pub. L. No. 109-13, 119
Stat. at 311.
To be sure, the transfer provision in the Real ID Act
applies to a habeas petition challenging a removal order that is
"pending in a district court" on the date of enactment of the Act.
Id. Here, on the date of enactment, the appeal from the district
court's dismissal order was pending in our court; the habeas
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petition itself had been dismissed in the district court.
Nonetheless, we think the habeas case was still "pending" in the
district court within the meaning of the Real ID Act. Until our
court acted on the appeal, the case necessarily remained alive in
the lower court although dormant. See 16A Alan Wright, Arthur R.
Miller, & Edward H. Cooper, Federal Practice & Procedure § 3949.1
at 50-53 (3d ed. 1999 & Supp. 2005) (discussing the district
court's power and residual jurisdiction in cases pending on
appeal); cf. Kusay v. United States, 62 F.3d 192, 194 (2d Cir.
1995) (noting that the district court retains jurisdiction over
"those aspects of the case [not] involved in the appeal").
It is apparent from Congress' clear intent to place all
review of removal orders in the courts of appeals, see H.R. Conf.
Rep. No. 109-72, at 175, that habeas appeals from a district court
that are pending in this court on the effective date of the Real ID
Act must be converted, along with the underlying district court
case, to petitions for review.6 See Bonhometre v. Gonzales, 414
6
Some habeas appeals pending in this court may not be properly
converted before us to petitions for review. See INA § 242(b)(2),
8 U.S.C. § 1252(b)(2) (2000) ("The petition for review shall be
filed with the court of appeals for the judicial circuit in which
the immigration judge completed the proceedings."); Real ID Act §
106(c), Pub. L. No. 109-13, 119 Stat. at 311. But such is not the
case here. Because Ishak's immigration proceedings were held in
Boston, Massachusetts, this court would be the proper venue for a
petition for review. See INA § 242(b)(2), 8 U.S.C. § 1252(b)(2)
(2000).
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F.3d 442, 446 (3d Cir. 2005). The government as well as the
petitioner agrees with this interpretation.
IV.
Merits of Claims Now Before Us
We accordingly now have before us two petitions for
review. The first is the petition for review timely filed in this
court by Ishak to review the BIA's denial of his motion to
reconsider its prior upholding of the INS removal order. The
second is the converted habeas case originally brought in the
district court, challenging the constitutionality of the removal
proceedings. While the actual issues in both petitions are
remarkably similar, we shall consider them separately so as to
avoid confusion because of the difference in review standards and
timing.
A. Petition for Review Based Upon Denial of Motion to Reconsider
A court of appeals reviews BIA decisions on motions to
reconsider solely for abuse of discretion. Hossain v. Ashcroft,
381 F.3d 29, 31 (1st Cir. 2004). "In the reconsideration context,
we will find an abuse of discretion if the denial was made without
a 'rational explanation, inexplicably departed from established
policies, or rested on an impermissible basis' (such as race)."
Zhang v. INS, 348 F.3d 289, 293 (1st Cir. 2003) (quoting Nascimento
v. INS, 274 F.3d 26, 28 (1st Cir. 2001)).
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Ishak argues that the BIA abused its discretion in
denying his motion to reconsider because it failed to consider
several issues related to our decision in El Moraghy v. Ashcroft,
331 F.3d 195 (1st Cir. 2003): the IJ's misuse of the country
condition reports; the IJ's and the BIA's failure to make a
credibility finding; and the BIA's failure to exercise independent
judgment in its decision.
1. Misuse of the Country Condition Reports
In El Moraghy, a case on direct appeal, we criticized the
IJ for several errors. First, we noted that the IJ "improperly
imposed a requirement that the country condition reports refer
specifically to the petitioner or his family members." Id. at 204.
In other words, the IJ "appear[ed] to have employed the country
condition reports solely as a test of direct corroboration, rather
than for the purposes of providing context and generalized
credibility assessment." Id.We do not see a similarly improper use of the country
condition reports here. The IJ did note in his evidence summary
that the country condition reports submitted by Ishak did not refer
to any members of his family. But he said nothing further on this
subject. It appears that his summary of the evidence was designed
solely for the purposes of providing context. He did not tie this
item into a specific adverse finding. On this record, we cannot
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say the BIA abused its discretion in not granting a rehearing based
on misuse of the country condition reports.
2. Failure to Make Credibility Findings and to Exercise
Independent Judgment
We also noted in El Moraghy the IJ's and the BIA's
failure to make findings as to credibility or past persecution.
Id. at 198. We remanded the case for further consideration,
because the absence of findings as to credibility or past
persecution prevented us from resolving the case on either of those
grounds. Id. Ishak argues that the IJ and the BIA similarly
failed to make credibility findings and that the BIA failed to
exercise independent judgment in its decision.
Ishak, however, failed to raise these arguments before
the BIA. See 8 U.S.C. § 1252(d)(1) (2000). We lack jurisdiction
over issues not raised before the BIA. Ravindran v. INS, 976 F.2d
754, 762 (1st Cir. 1992). Due process claims may be exempt from
this procedural rule where resort to the BIA would be futile
because of its lack of power to adjudicate constitutional issues.
See, e.g., Sousa v. INS, 226 F.3d 28, 32 (1st Cir. 2000);
Ravindran, 976 F.2d at 762. See infra. In the petition for review
of the denial of his motion to reconsider, however, Ishak does not
challenge the constitutionality of the regulations or procedures
that governed his hearing. Instead, he complains of
"irregularities which the BIA could have corrected if brought to
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its attention." Ravindran, 976 F.2d at 763. As Ishak did not
raise these issues before the BIA, we cannot hear them now.
3. Antagonistic Cross-Examination by the IJ
Ishak also contends the IJ's antagonistic cross-
examination "is indicative of the unfair hearing [he] received" and
that the BIA abused its discretion by "[doing] nothing to address
or remedy that legal error." The IJ has broad discretion over the
conduct of trial proceedings. Aguilar-Solis v. INS, 168 F.3d 565,
568 (1st Cir. 1999). During Ishak's testimony, the IJ asked Ishak
questions, attempting to clarify portions of his testimony. One
may infer from the record that the IJ's manner of questioning was
brusque and impatient. But we cannot say the questioning was so
obviously biased or unfair that the BIA abused its discretion in
determining that the questioning did not make Ishak’s hearing
unfair. See Liteky v. United States, 510 U.S. 540, 555-56 (1994)
(holding that charges of judicial bias and partiality cannot be
established solely by "expressions of impatience, dissatisfaction,
annoyance, and even anger"); Morales v. INS, 208 F.3d 323, 327 (1st
Cir. 2000).
We accordingly reject Ishak's petition for review of the
BIA's denial of his motion to reconsider its decision denying
asylum and ordering his removal.
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B. Petition for Review Based Upon Ishak's Habeas Case
A district court case transferred to a court of appeals
under the Real ID Act is to be treated "as if it had been filed
pursuant to a petition for review . . . ." Real ID Act § 106(c),
Pub. L. No. 109-13, 119 Stat. at 311. The court thus looks at the
same issues raised in the district court case but as if presented
to it in a timely petition for review.
Ishak's claims in his converted district court case are
essentially a reformulation of the arguments he raised in the
petition for review of the BIA's denial of his motion to
reconsider. He presents those, however, as violations of his
constitutionally-protected right of due process, contending that
the IJ and the BIA violated his "constitutional right to a fair
trial and informed decisions with specific and sound reasoning."
He argues that his hearing was not fair and impartial because the
IJ misused the country condition reports, the IJ and the BIA failed
to make credibility findings, and the BIA failed to exercise its
independent judgment, as required by El Moraghy. Ishak also argues
that the IJ's questioning on cross-examination was indicative of
the unfair hearing he received.
"It is well established that the Fifth Amendment entitles
aliens to due process of law in deportation proceedings." Reno v.
Flores, 507 U.S. 292, 306 (1993). We review a claim that an
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administrative law judge violated a party's right to due process de
novo. Mekhoukh v. Ashcroft, 358 F.3d 118, 129 (1st Cir. 2004).
1. Misuse of the Country Condition Reports
First, for essentially the same reasons we stated in
affirming the BIA's denial of the motion to reconsider, we reject
Ishak's claim that his right to due process was violated by the
IJ's misuse of the country condition reports under El Moraghy. See
supra p. 17.
2. Failure to Make Credibility Findings and to Exercise
Independent Judgment
Second, Ishak argues, based on El Moraghy, that his right
to due process was violated because the IJ and the BIA improperly
relied on the asylum officer's assessment memorandum instead of
making their own credibility findings, and that the BIA failed to
exercise its independent judgment. As stated earlier, Ishak failed
to raise these arguments to the BIA, and we lack jurisdiction to
review issues not raised before the BIA. Ravindran, 976 F.2d at
762. Due process claims may be exempt from this procedural rule
where resort to the BIA would be futile because of its lack of
power to adjudicate constitutional issues. See, e.g., Sousa, 226
F.3d at 32; Ravindran, 976 F.2d at 762. A petitioner cannot,
however, obtain review of unraised procedural errors in the
administrative process by simply alleging that such errors amount
to due process violations. Reid v. Engen, 765 F.2d 1457, 1461 (9th
Cir. 1985). "Unless an alien shows that his unraised due process
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claims go beyond mere 'procedural errors,' which the BIA plainly
may address, [] this court lacks jurisdiction to hear them."
Ravindran, 976 F.2d at 762.
Even assuming arguendo that Ishak's arguments that the IJ
and the BIA failed to make credibility findings and that the BIA
failed to exercise independent judgment are claims that go beyond
mere procedural errors, they lack merit. It is true, as Ishak
points out, that the IJ recited the asylum officer's assessment
memorandum verbatim as part of his oral decision. The IJ, however,
held a hearing to allow Ishak to develop his claims, and, as the
BIA noted, the IJ additionally "made his own credibility finding
based on his own observations at the merits hearing." In his oral
decision, the IJ stated, as already recited:
I have observed the demeanor of the respondent during the
time he has testified in these proceedings and find his
testimony to be less than candid, his answers to be
rambling, his answers not responsive to the questions
asked, and his testimony not credible concerning the
reasons for his leaving Egypt and not wanting to return
to Egypt.
The IJ's exhaustive discussion of the record shows that he
independently reviewed the record and came to his own conclusion
that Ishak lacked credibility. The fact that he also recited the
asylum officer's assessment memorandum and reached the same
conclusion as the asylum officer does not render Ishak's hearing
unfair.
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On appeal, the BIA made its own credibility finding and
exercised its independent judgment. The BIA agreed with the IJ's
characterization of Ishak's testimony as not responsive, but gave
independent reasons for its decision. The BIA said that Ishak's
unresponsive testimony occurred when the IJ was trying to clarify
"implausibilities and inconsistencies in his testimony." The BIA
also found that "[Ishak’s] testimony regarding his arrest and false
accusation [was] too implausible and [had] too many unresolved
inconsistencies to establish his eligibility for asylum." In light
of the findings by the IJ and the BIA, we are unconvinced that
Ishak's right to due process was violated.
3. Antagonistic Cross-Examination by the IJ
Finally, for essentially the same reasons stated earlier,
see supra pp. 18-19, we reject Ishak's contention that his right to
due process was violated by the IJ's questioning on cross-
examination.
V.
Conclusion
We affirm the district court's dismissal of Ishak's
petition for habeas corpus for lack of subject matter jurisdiction.
We deny the petition for review of the BIA's order denying the
motion to reconsider and deny the petition for review converted
from Ishak's habeas petition.
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