Al-Abbodi v. Garland

Appellate Case: 21-9551 Document: 010110690053 Date Filed: 05/27/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 27, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
HAMED AL-ABBODI,
Petitioner,
v. No. 21-9551
(Petition for Review)
MERRICK B. GARLAND,
United States Attorney General,
Respondent.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before BACHARACH, BALDOCK, and EID, Circuit Judges.
_________________________________
Hamed Al-Abbodi, a native and citizen of Iraq proceeding pro se,1 seeks
review of a decision by the Board of Immigration Appeals (BIA) that dismissed his
appeal from an order entered by an Immigration Judge (IJ). We dismiss the petition
for review in part for lack of jurisdiction and otherwise deny the petition.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
1
Because Al-Abbodi proceeds pro se, we construe his filings liberally but do
not serve as his advocate. See Garrett v. Selby Connor Maddux & Janer, 425 F.3d
836, 840 (10th Cir. 2005).
Appellate Case: 21-9551 Document: 010110690053 Date Filed: 05/27/2022 Page: 2
I. Background
Al-Abbodi entered the United States as a refugee in 1992 after “engag[ing] in
anti-government activities” related to Saddam Hussein’s regime, Admin. R., vol. 1 at
6. He later committed several crimes, including “felony burglary, retail theft, assault
and battery, child neglect/abuse, criminal mischief, and violation of a protective order.”
Id., vol. 2 at 840.
In 1998, the government charged him with removability under 8 U.S.C.
§ 1227(a)(2)(A)(ii), as a noncitizen convicted of two or more crimes of moral
turpitude, and 8 U.S.C. § 1227(a)(2)(A)(iii), as a noncitizen convicted of an
aggravated felony. Al-Abbodi missed the removal hearing due to his incarceration
on some of his convictions, and an IJ ordered him removed to Iraq in absentia.
But the government did not remove Al-Abbodi. So he continued to live in the
United States, and in 2003 he married a United States citizen. His wife later filed an
I-130 visa petition that U.S. Citizenship and Immigration Services approved. Then in
2015, Al-Abbodi successfully petitioned the BIA to reopen his immigration
proceedings to seek (1) adjustment of status to permanent resident based on either his
approved visa petition under 8 U.S.C. § 1255(a), or his tenure in the United States
under 8 U.S.C. § 1159(a)–(b), and (2) protection under the Convention Against
Torture (CAT) based on changed country conditions in Iraq.
In the immigration proceedings, Al-Abbodi conceded that his criminal
convictions rendered him inadmissible under 8 U.S.C. § 1182 such that the Attorney
General would need to waive his inadmissibility under 8 U.S.C. §§ 1159(c) or
2
Appellate Case: 21-9551 Document: 010110690053 Date Filed: 05/27/2022 Page: 3
1182(h) in order to adjust his status. And he further conceded that to obtain a waiver
of his inadmissibility, he would need to show “that there exists exceptional and
extremely unusual hardship in his case.” Admin. R., vol. 1 at 25 (citing 8 C.F.R.
§ 1212.7).
To support his application for a waiver of inadmissibility, Al-Abbodi
presented evidence he maintained a close relationship with his adult children and his
grandchildren, “seeing them almost daily and helping with [the grandchildren and]
small household needs.” Id. at 5. He also presented evidence that he occasionally
provides financial support to his wife and minor U.S.-citizen child, who live about
300 miles away.
The BIA observed that Al-Abbodi does not live with his wife or any of his
children and that all his “qualifying relatives are, essentially, financially independent
from [him] although he does provide small amounts of support from time to time.”
Id. The BIA therefore found that while Al-Abbodi’s “qualifying relatives would
experience emotional hardship upon his return to Iraq, such hardship does not rise to
the required level” of “exceptional and extremely unusual.” Id. The BIA further
found that while Al-Abbodi himself will “face hardship upon his removal from the
United States” because he “will be separated from his immediate family” and “will
return to a country he has not lived in for almost 30 years, in which he has few
surviving connections, and which experiences high rates of general violence,” “these
hardships are common consequences of removal.” Id. at 5–6. The BIA therefore
found Al-Abbodi had failed to establish “exceptional and extremely unusual hardship
3
Appellate Case: 21-9551 Document: 010110690053 Date Filed: 05/27/2022 Page: 4
in the aggregate,” and therefore did not “meet his burden to demonstrate he merits a
waiver of inadmissibility.” Id. at 6.
To support his CAT claim, Al-Abbodi testified that while in the United States,
he assisted the United States National Guard in culture training for deployment in
Iraq. He further testified that he has posted disparaging remarks about the Iraqi
government on social media and believes there are people in the military there that
would continue to be a threat to him upon his return.
The IJ found that Al-Abbodi’s evidence failed to establish a likelihood “that
someone in his situation would be singled out and targeted for torture by the
government.” Id. at 65. The BIA affirmed the IJ’s rejection of Al-Abbodi’s CAT
claim.
II. Discussion
A. The BIA’s Discretionary Decision to Deny Al-Abbodi’s Request for a
Waiver of Inadmissibility
Al-Abbodi seeks judicial review of the BIA’s rejection of his request for a
waiver of inadmissibility under 8 U.S.C. §§ 1159(c) and 1182(h). We generally have
no jurisdiction to review a denial of relief under § 1182(h) or a decision in which
discretion is vested in the Attorney General (ordinarily acting through the BIA or
IJ), see 8 U.S.C. § 1252(a)(2)(B), except to resolve a constitutional or legal
question, see id. § 1252(a)(2)(D); Munis v. Holder, 720 F.3d 1293, 1295 (10th Cir.
2013) (“The agency’s discretionary denial of a waiver of inadmissibility or
adjustment of status is unreviewable in the absence of a legal or constitutional
4
Appellate Case: 21-9551 Document: 010110690053 Date Filed: 05/27/2022 Page: 5
question.”) (construing § 1182(h)(1)(B)). Al-Abbodi did not raise any discernible
legal or constitutional question with respect to the discretionary denial of his waiver
application under §§ 1159(c) and 1182(h)(2). We therefore lack jurisdiction to
review that denial. See Patel v. Garland, No. 20-979, --- S. Ct. ----, 2022 WL
1528346, at *7 (May 16, 2022) (“[A] noncitizen may not bring a factual challenge to
[an] order[] denying discretionary relief.” (internal quotation marks omitted));
Alzainati v. Holder, 568 F.3d 844, 850 (10th Cir. 2009) (“[C]hallenges directed
solely at the agency’s discretionary . . . determinations remain outside the scope of
judicial review.” (internal quotation marks omitted)); cf. Munis, 720 F.3d at 1295
(“[T]he hardship determination required for a waiver of inadmissibility under
§ 1182(h)(1)(B) is an unreviewable discretionary decision.”).
B. The BIA’s Rejection of Al-Abbodi’s CAT Claim
To be entitled to protection under the CAT, an alien “must establish that it is
more likely than not that he or she would be tortured if removed to the proposed
country of removal.” Zhi Wei Pang v. Holder, 665 F.3d 1226, 1233–34 (10th Cir.
2012) (internal quotation marks omitted). The BIA found Al-Abbodi’s evidence
showed “an insufficient likelihood of future torture by or with the consent or
acquiescence of an authorized individual” to support a CAT claim. Admin. R., vol. 1
at 7. We review this “finding[] of fact under a substantial-evidence standard. Under
this standard, the BIA’s findings of fact are conclusive unless the record
demonstrates that any reasonable adjudicator would be compelled to conclude to the
contrary.” Takwi v. Garland, 22 F.4th 1180, 1184 (10th Cir. 2022) (citation,
5
Appellate Case: 21-9551 Document: 010110690053 Date Filed: 05/27/2022 Page: 6
brackets, and internal quotation marks omitted).2 Al-Abbodi does not cite any record
evidence that undermines the BIA’s finding. But ample evidence supports the
finding, and we therefore deny review of the BIA’s rejection of Al-Abbodi’s CAT
claim.
III. Conclusion
We dismiss the petition for review in part for lack of jurisdiction and
otherwise deny the petition.
Entered for the Court
Allison H. Eid
Circuit Judge
2
This appeal involves a single BIA member’s brief order under
8 C.F.R. § 1003.1(e)(5). As a result, “the BIA’s affirmance is the final agency
decision, and we limit our review to the grounds for the BIA’s decision. However,
we may consult the immigration judge’s fuller explanation of those same grounds.”
Takwi, 22 F.4th at 1184 (citation and internal quotation marks omitted).
6