Daniel Lubowa v. U.S. Attorney General

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPT 10, 2008
No. 07-12631 THOMAS K. KAHN
No. 07-14213 CLERK
Non-Argument Calendar
________________________
Agency No. A72-680-243
DANIEL LUBOWA,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petitions for Review of a Decision of the
Board of Immigration Appeals
_________________________
(September 10, 2008)
Before TJOFLAT, BLACK and CARNES, Circuit Judges.
PER CURIAM:
Daniel Lubowa, a native and citizen of Uganda, was convicted of five counts
of mail fraud in federal court in Kentucky. Pursuant to the Immigration and
Nationality Act, 8 U.S.C. § 1228, the Department of Homeland Security instituted
expedited, administrative removal proceedings against Lubowa. Accordingly, the
Department served Lubowa with a Notice of Intent to Issue a Final Administrative
Removal Order, charging him with being an aggravated felon subject to removal,
pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii). Despite being given the opportunity to
do so under 8 C.F.R. § 1238.1(c), Lubowa did not challenge the Department’s
determination that he was an aggravated felon. The Department issued a Final
Administrative Removal Order.
An asylum officer referred the case to an Immigration Judge after finding
that Lubowa had a reasonable belief that he would suffer persecution or torture
upon his return to Uganda. Accordingly, Lubowa filed an application for
withholding of removal under the INA and relief under the United Nations
Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or
Punishment (CAT), 8 U.S.C. § 1231(b)(3), 8 C.F.R. § 208.16(c). The IJ denied
Lubowa’s application on the merits and remanded the case to DHS for enforcement
of the administrative removal order. After several rounds of appeals, the Board of
Immigration Appeals affirmed.
Proceeding pro se, Lubowa petitions this Court for review of the BIA’s order
affirming the IJ’s denial of his claims for withholding of removal and CAT relief.
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Lubowa also petitions this Court for review of the BIA’s subsequent order denying
his motion to reconsider that order. We consolidated the petitions for review for
purposes of this appeal.
I.
Lubowa first contends that the BIA erred by failing to address whether he
was convicted of an aggravated felony. He was not convicted of an aggravated
felony, he argues, because he did not cause more than $10,000 of loss in
connection with his mail fraud convictions. The government responds that we lack
jurisdiction to review the IJ’s decision that Lubowa was convicted of an aggravated
felony because he failed to exhaust his administrative remedies on that issue.
Specifically, the government argues that, in spite of being given the opportunity to
do so, Lubowa failed to respond to the Department’s notice of intent as required by
8 C.F.R. § 1238.1(c).
We review de novo our own subject matter jurisdiction. Sanchez Jimenez v.
United States Att’y Gen., 492 F.3d 1223, 1231 (11th Cir. 2007). “We review only
the [BIA’s] decision, except to the extent that it expressly adopts the IJ’s opinion.”
Al Najjar v. Aschroft, 257 F.3d 1262, 1284 (11th Cir. 2001). “Insofar as the [BIA]
adopts the IJ’s reasoning, we will review the IJ’s decision as well.” Id. In this
case, the BIA did not expressly adopt the IJ’s opinion, and, therefore, we review
the BIA’s underlying order dismissing Lubowa’s appeal and its order denying his
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motion for reconsideration.
The INA provides that “[a] court may review a final order of removal only if
. . . the alien has exhausted all administrative remedies available to the alien as of
right.” 8 U.S.C. § 1252(d)(1). Accordingly, we have held that we “lack
jurisdiction to consider a claim raised in a petition for review unless the petitioner
has exhausted his administrative remedies with respect thereto.” Amaya-
Artunduaga v. United States Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006).
The INA provides that “[a]ny alien who is convicted of an aggravated felony
at any time after admission is deportable.” 8 U.S.C. § 1227(a)(2)(A)(iii). The
statute authorizes the Attorney General to institute expedited, administrative
removal proceedings with respect to aliens convicted of aggravated felonies. See 8
U.S.C. § 1228. The Attorney General has promulgated regulations under the
statute, which require that an alien who was purportedly convicted of aggravated
felony be served with a notice of intent that advises him of the legal and factual
basis of the charges and informs him of his opportunity to rebut the charges within
ten calendar days. 8 C.F.R. § 1238.1(b)(2)(i).
The regulations specify that, in the alien’s response to the notice of intent, he
may designate a country of removal, rebut the notice’s allegations, request an
opportunity to review the government’s evidence, request withholding of removal,
and/or request that an extension of time be granted. 8 C.F.R. § 1238.1(c)(1). If an
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alien does not submit a timely response and the evidence establishes the alien’s
removal by clear and convincing evidence, the regulations require the government
to issue a final administrative removal order. 8 C.F.R. § 1238.1(d)(1).
The notice of intent Lubowa received stated that Lubowa was a native and
citizen of Uganda who was subject to expedited removal proceedings under 8
U.S.C. § 1228(b) on the ground that he was convicted of an aggravated felony.
Specifically, the notice charged that in May 2002 Lubowa was convicted of five
counts of mail fraud in federal court an Kentucky and was responsible for over
$10,000 in loss arising from those crimes. The notice emphasized that Lubowa
was required to respond to the charges within ten calendar days and notified him of
the steps he could take in response to it. However, Lubowa did not respond to the
notice, and therefore he failed to exhaust his administrative remedies with respect
to whether he had been convicted of an aggravated felony. As a result, we lack
jurisdiction to consider Lubowa’s argument about that issue. See 8 U.S.C.
§ 1252(d)(1); Amaya-Artunduaga, 463 F.3d at 1250.
II.
Lubowa next contends that the BIA committed numerous factual errors
when affirming the denial of his application for withholding of removal and CAT
relief. The INA provides that “ no court shall have jurisdiction to review any final
order of removal against an alien who is removable by reason of having committed
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a criminal offense covered in section . . . 1227(a)(2)(A)(iii) . . . of this Title.” 8
U.S.C. § 1252(a)(2)(C). Section 1227(a)(2)(A)(iii), in turn, covers aliens who
were “convicted of an aggravated felony at any time after admission.” 8 U.S.C. §
1227(a)(2)(A)(iii). In May 2005 the REAL ID Act amended § 1252(a) to include
subsection (D), which provides: “Nothing in subparagraph (B) or (C), or in any
other provision of this chapter (other than this section) which limits or eliminates
judicial review, shall be construed as precluding review of constitutional claims or
questions of law.” 8 U.S.C. § 1252(a)(2)(D). Thus, after the addition of
§ 1252(a)(2)(D), “factual determinations continue to fall outside the jurisdiction of
the court of appeals.” Chacon-Botero v. United States Att’y Gen., 427 F.3d 954,
957 (11th Cir. 2005) (citation omitted).
Despite noting that it may be “difficult at times to delineate the precise
boundaries between permitted review of legal questions and forbidden review of
administrative factual findings,” we have held that challenges to “administrative
findings of fact about the sufficiency of [the petitioner’s] evidence and the
likelihood of his being tortured” are beyond the scope of our review. Cadet v.
Bulger, 377 F.3d 1173, 1192 (11th Cir. 2004) (addressing a 28 U.S.C. § 2241petition before the passage of the REAL ID Act); see Alexandre v. United States
Att’y Gen., 452 F.3d 1204, 1206 (11th Cir. 2006) (stating that § 1252(a)(2)(D)
“offers the same [scope of] review as that formerly afforded in habeas corpus
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which provided legal, but not factual or discretionary, determinations”). We
explained:
[T]o the extent Cadet’s § 2241 petition challenges the administrative
findings that his evidence failed to establish that he individually is
more likely than not to be subjected to torture if returned to Haiti, his
challenge is largely factual in nature. Thus, to the extent Cadet
challenges the administrative fact finding regarding what will likely
happen to him individually if returned to Haiti, that challenge falls
outside the scope of our § 2241 habeas review.
Cadet, 377 F.3d at 1195. On the other hand, we have held that we retain
jurisdiction under § 1252(a)(2)(D) to review “the application of an undisputed fact
pattern to a legal standard.” Jean-Pierre v. United States Att’y Gen., 500 F.3d
1315, 1322 (11th Cir. 2007); accord Cadet, 377 F.3d at 1185, 1194 (holding that
we had jurisdiction to determine whether undisputed facts legally constituted
torture).
Lubowa does not contend that the IJ or the BIA applied improper legal
standards with respect to his claims for withholding of removal and CAT relief.
Instead, he contends that the BIA made the following factual errors: (1) stating
that Lubowa had been convicted of wire fraud and of using a false identity; (2)
stating that Lubowa feared “that those in power will imprison him and torture him
to prevent him from challenging their authority;” (3) finding that Lubowa feared
the “Lord’s Resistance Army” or any other rebel group; (4) improperly
characterizing the jury’s verdict with respect to his mail fraud convictions; and (5)
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finding that Lubowa had not established that Uganda was in possession of
information accusing him of treason and of being a military threat. All of these
arguments arise from the BIA’s factfindings on disputed facts as they related to the
denial of Lubowa’s request for withholding of removal and CAT relief.
Accordingly, we lack jurisdiction under § 1252(a)(2)(D) to review them. See
U.S.C. § 1252(a)(2)(C); Chacon-Botero, 427 F.3d at 957; see also Cadet, 377 F.3d
at 1192.
III.
Finally, Lubowa contends that his due process rights were violated in nine
separate ways. Specifically Lubowa contends that: (1) the IJ improperly prevented
the government from reviewing the transcript of a particular witness’ testimony
from Lubowa’s criminal trial, thus constituting an intentional obstruction of and
failure to adjudicate Lubowa’s key evidence; (2) the IJ hindered him from
testifying at the hearing by forcing him to respond with “yes or no” answers; (3)
the IJ conspired with his attorneys to prevent him from appealing his decision to
the BIA; (4) his attorneys provided him with ineffective assistance of counsel
because they did not make any opening or closing statement, advance any legal
arguments, challenge the aggravated felony finding, or discuss the documentary
evidence standard; (5) the IJ improperly withheld the asylum officers’ findings
from the record; (6) the IJ, who was white, was racially biased against Lubowa; (7)
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the transcript of the removal proceedings held before the IJ was prejudicially
defective; (8) the BIA erred by issuing Lubowa and incorrect briefing schedule
after it vacated its first two orders; and (9) the BIA erred by failing to require the
Department to include in the record what the U.S. Embassy submitted to the
Ugandan government in its efforts to authenticate a purported Ugandan warrant for
Lubowa’s arrest for treason, as well as any response from the Ugandan
government. Although we have jurisdiction to consider these constitutional
arguments, 8 U.S.C. § 1252(a)(2)(D), having considered them we conclude that
they are all without merit.
For these reasons, we dismiss Lubowa’s petition in part and deny his petition
in part. We also deny as moot his pending motion for an expedited disposition of
his appeal.
PETITION DISMISSED IN PART, DENIED IN PART.
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