Nisar Mulla v. Eric Holder, Jr.

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0206n.06
Nos. 09-4048 & 10-3793
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
NISAR NAJMUDDIN MULLA, ) Feb 22, 2012
) LEONARD GREEN, Clerk
Petitioner-Appellant, )
)
v. ) ON PETITION FOR REVIEW FROM
) THE UNITED STATES BOARD OF
ERIC H. HOLDER, JR., ) IMMIGRATION APPEALS
Attorney General, )
)
Respondent-Appellee. )
Before: COOK, MCKEAGUE, and ROTH, Circuit Judges.*
JANE ROTH, Circuit Judge.
Nisar Mulla petitions this Court for review of two final orders rendered by the Board of
Immigration Appeals affirming the Immigration Judge’s denial of his application for asylum. For
the reasons expressed below, we will deny Mulla’s petition for review.
I. Background
We write exclusively for the parties, who are familiar with the factual context and legal
history of this case. Therefore, we will set forth only those facts necessary to our analysis.
This immigration case commenced almost thirty years ago. Mulla, a native and citizen of
Pakistan, entered the United States as an immigrant on August 28, 1975. On May 8, 1981, Mulla
was convicted of Conspiracy and Possession with Intent to Distribute Cocaine, in violation of 21
U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. As a result of this conviction, the Immigration and
Naturalization Service served Mulla with an order to show cause charging him with deportability
*
The Honorable Jane R. Roth, United States Circuit Judge for the United States Court of Appeals
for the Third Circuit, sitting by designation.
under former 8 U.S.C. § 1251(a)(11)(1982).1 After a hearing, Mulla was ordered deported to
Pakistan; he did not appeal this decision.
On March 2, 1984, Mulla effectuated self-deportation by accidently leaving the United States
during a trip to the Virgin Islands. However, the following day he reentered the United States and
presented himself as a returning lawful resident. Upon his reentry, the INS instructed Mulla to
appear for deportation. In response, Mulla initiated a civil suit in the United States District Court
claiming that in exchange for his service as a confidential informant in various drug-related
prosecutions, the government stipulated that he would not be deported. In May 1989, the parties
agreed that Mulla’s suit would be dismissed and that the INS would re-commence deportation
proceedings.
On January 12, 1990, the INS reinstated deportation proceedings. Although Mulla conceded
deportability and that he could not meet the requirements for suspension of deportation, he requested
additional time to submit an application for asylum. This request was granted. At a later hearing,
however, Mulla’s counsel informed the immigration judge that Mulla no longer desired to pursue
asylum, but rather sought voluntary departure in lieu of deportation. The INS opposed this request,
and the immigration judge ordered Mulla’s deportation to Pakistan.
Represented by new counsel, Mulla appealed this decision and requested remand, asserting
that his prior representation was inadequate because his attorney failed to submit an application for
asylum. The BIA agreed and, on March 18, 1994, ordered that “The motion to remand to give
[Mulla] an opportunity to file his asylum application is granted and the record is remanded for
further proceedings and the entry of a new decision and the motion is denied in all other respects.”
In its opinion, the BIA detailed its reasons why Mulla was not statutorily eligible for suspension of
deportation. The INS filed a motion for reconsideration, which, for unknown reasons, was not
denied until 2002.
1
Amended and renumbered as 8 U.S.C. § 1227(a)(2)(B)(i).
On remand, Mulla argued that he was eligible for asylum or suspension of deportation. The
immigration judge concluded that he lacked jurisdiction to address the suspension of deportation
claim because the BIA previously determined that Mulla was ineligible and that remand was solely
limited to consideration of the asylum application. With respect to asylum, the immigration judge
concluded that Mulla was not entitled to relief because he: (1) was not credible, (2) failed to meet
his burden of proving that he possessed a well founded fear of persecution, and (3) failed to establish
that he would be subject to persecution by the Pakistani government or persons whom it was unable
or unwilling to control. Mulla appealed this decision to the BIA. In its July 2009 decision, the BIA
sustained Mulla’s appeal as it related to the immigration judge’s credibility determination, but
dismissed the appeal in all other respects. Mulla then filed motions for reconsideration and
reopening the proceedings, which the BIA denied on June 2, 2010. Mulla subsequently filed a
petition for review with this Court.
II. Discussion
When an alien challenges an order of deportation that is based upon a controlled substance
violation, federal law prohibits “our review of asylum applications . . . when the appeal seeks review
of discretionary or factual questions, but not when the appeal seeks review of constitutional claims
or matters or statutory construction.” Almuhtaseb v. Gonzales, 453 F.3d 743, 748 (6th Cir. 2006);
Shewchun v. Holder, 658 F.3d 557, 561 (6th Cir. 2011).
A. Asylum
To obtain asylum, an alien must establish that he qualifies as a refugee. Ouda v. INS, 324
F.3d 445, 451 (6th Cir. 2003)(citing 8 U.S.C. § 1101(a)(42)(A)). A refugee is an alien who is
unwilling to return to his home country “because of persecution or a well-founded fear of
persecution on account of race, religion, nationality, membership in a particular social group, or
political opinion.” 8 U.S.C. § 1101(a)(42). Inherent within this definition is that any “persecution
[suffered by the alien] must be by the government, or persons the government is unwilling or unable
to control.” Kante v. Holder, 634 F.3d 321, 325 (6th Cir. 2011) (internal quotations omitted).
Whether the government is able or willing to control alleged persecutors is a factual determination
reviewed under a substantial evidence test. Id.; see Khalili v. Holder, 557 F.3d 429, 436 (6th Cir.
2009).
Mulla asserts that the BIA erred when it concluded that his status as a publicly exposed
confidential informant did not constitute membership in a particular social group. Although Mulla
raises a legal issue, we do not need to address it because the BIA also concluded that even if Mulla’s
status as an exposed confidential information constituted membership in a particular social group,
he failed to demonstrate that the Pakistani government is unable or unwilling to control his alleged
persecutors. See Bonilla-Morales v. Holder, 607 F.3d 1132, 1137-38 (6th Cir. 2010); see also Silva
v. Ashcroft, 394 F.3d 1, 6, 8 (1st Cir. 2005) (finding it unnecessary to decide whether a proposed
group constitutes a cognizable social group because the alien cannot provide sufficient evidence that
the government cannot or will not protect him should he return). Because we lack jurisdiction to
review the BIA’s factual determination that Mulla failed to present sufficient evidence that the
Pakistani government is unwilling or unable to control the alleged persecutors, we find it
unnecessary to determine whether Mulla’s status as an exposed confidential informant constitutes
membership in a particular social group.
B. Due Process
1. Hearing
When reviewing alleged due process violations in removal hearings, we must determine
“whether there was a defect in the removal proceeding . . . [and] whether the alien was prejudiced
because of it.” Vasha v. Gonzales, 410 F.3d 863, 872 (6th Cir. 2005). Because “proof of prejudice
is necessary to establish a due process violation in an immigration hearing,” id, “we need not address
the merits of a [due process] claim if” the alien fails to demonstrate prejudice, Graham v. Mukasey,
519 F.3d 546, 549 (6th Cir. 2008); see Ikharo v. Holder, 614 F.3d 622, 631 (6th Cir. 2010), vacated
on other grounds, --- S.Ct. ---, 2012 WL 33261 (Jan. 9, 2012). “[T]o establish the requisite
prejudice, [the alien] must show that the due process violations led to a substantially different
outcome from that which would have occurred in the absence of those violations.” Graham, 519
F.3d at 549-50; see Garza-Moreno v. Gonzales, 489 F.3d 239, 241 (6th Cir. 2007) (“An alien must
establish . . . substantial prejudice to prevail on a due process challenge to deportation
proceedings”) (internal quotations omitted).
Mulla’s contention that he suffered prejudice is completely unsupported by the record. As
a preliminary matter, he fails to explain what type of prejudice he suffered or how the alleged due
process violation prejudiced his case. Castellano–Chacon v. INS, 341 F.3d 533, 553 (6th Cir. 2003)
(concluding that because the alien “failed to identify any specific prejudice” that he suffered, the
alleged due process violation was “harmless”). Moreover, Mulla’s complaints relate to the
immigration judge’s questioning of him and allegedly hostile treatment toward himself and his
counsel. Even assuming this conduct constituted a due process violation, the BIA cured any alleged
prejudice when it disregarded the Immigration Judge’s adverse credibility determination and found
Mulla credible. We, therefore, conclude that Mulla did not suffer any prejudice because none of his
alleged due process violations affected the outcome of his claim.
2. Appellate Review
Mulla also contends that the BIA violated his due process rights when it failed to consider
several of the arguments he raised on appeal. Although the “BIA should demonstrate that it has
considered the evidence that a petitioner presents, the BIA is not required to parse or refute on the
record every individual argument or document offered by the petitioner.” Stserba v. Holder, 646
F.3d 964, 978 (6th Cir. 2011) (internal citations omitted). “What is required is merely that [the BIA]
consider the issues raised, and announce its decision in terms sufficient to enable a reviewing court
to perceive that it has heard and thought and not merely reacted.” Akhtar v. Gonzales, 406 F.3d 399,
408 (6th Cir. 2005). The BIA may dispose of an “appeal in a perfunctory manner” when its
adoption of the immigration judge’s reasoned explanation provides a sufficient basis for its decision.
Id.
Despite Mulla’s arguments to the contrary, both the Immigration Judge and BIA provided
sufficient explanations of their decisions. Not only did the Immigration Judge adequately set forth
the basis for his decision, but also the BIA independently reviewed the record, detailed its rationale
for adopting the Immigration Judge’s decision, and explained why Mulla did not qualify for asylum.
See Scorteanu v. INS, 339 F.3d 407, 412 (6th Cir. 2003). Thus, Mulla’s due process claim lacks
merit because “[t]he explanations offered by the [Immigration Judge] and the BIA are thorough
enough to allow us to meaningfully review their decisions.” Al-Ghorbani v. Holder, 585 F.3d 980,
993 (6th Cir. 2009).
C. Scope of Remand
Mulla asserts that the BIA’s March 1994 order did not limit the scope of remand to
consideration of his asylum application, but rather also permitted the Immigration Judge to
adjudicate the suspension of deportation claim. This argument is without merit. The BIA’s opinion
in Matter of Patel, 16 I. & N. Dec. 600 (BIA 1978), established the standard for the scope of remand
orders in immigration proceedings. According to Patel,
[W]hen the Board remands a case to an immigration judge for further proceedings,
it divests itself of jurisdiction of that case unless jurisdiction is expressly retained.
Further, when this is done, unless the Board qualifies or limits the remand for a
specific purpose, the remand is effective for the stated purpose and for consideration
of any and all matters which the Service officer deems appropriate in the exercise of
his administrative discretion or which are brought to his attention in compliance with
the appropriate regulations.
Id. at 601. Here, there is no evidence that the BIA departed from its prior precedent. The 1994
order contained express qualifications on the matters to be reviewed on remand. The order stated
that the motion to remand to file for asylum was granted; it then stated that “the motion is denied
in all other respects.” Accordingly, the BIA did not err when it affirmed the Immigration Judge’s
determination that he did not have jurisdiction to consider Mulla’s suspension of deportation claim.
D. Motions to Reconsider and Reopen
Mulla also contends that the BIA erred when it denied his motions to reconsider and reopen
his petition. We review for abuse of discretion. Haddad v. Gonzales, 437 F.3d 515, 517 (6th Cir.
2006). An abuse of discretion occurs if the denial “was made without a rational explanation,
inexplicably departed from established policies, or rested on an impermissible basis such as
invidious discrimination against a particular race or group.” Allabani v. Gonzales, 402 F.3d 668,
675 (6th Cir. 2005). After considering Mulla’s arguments, we conclude that the BIA did not abuse
its discretion when it denied his motions. Mulla’s motion to reconsider raised the identical issues
and arguments the BIA previously rejected, see Sunarto v. Mukasey, 306 F. App’x 957, 962 (6th Cir.
2009), and his motion to reopen failed to present a prima facie case for asylum, see Alizoti v.
Gonzales, 477 F.3d 448, 451-52 (6th Cir. 2007) (“A prima facie showing of eligibility for relief is
required in motions to reopen”).
III. Conclusion
For the foregoing reasons, we will deny the petition for review.