Hamdan, Husam F. v. Gonzales, Alberto R.

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 03-4039 & 04-1484
HUSAM F. HAMDAN,
Petitioner,
v.
ALBERTO GONZALES,1 United
States Attorney General,
Respondent.
____________
Petition for Review of an Order
of the Board of Immigration Appeals.
No. A76-678-463
____________
ARGUED SEPTEMBER 22, 2004—DECIDED OCTOBER 13, 2005
____________
Before COFFEY, WILLIAMS, and SYKES, Circuit Judges.
COFFEY, Circuit Judge. Plaintiff-Appellant Husam
Fakhri Hamdan, a native of Kuwait and former resident
of Jordan, petitions the court for review of two orders of the
Board of Immigration Appeals (“BIA”), one affirming
without opinion an immigration judge’s decision to deny his
application for adjustment of status and the other denying
his motion to the BIA to reconsider its summary affirmance
1
Pursuant to Federal Rule of Appellate Procedure 43(c), we have
substituted Alberto Gonzales for John Ashcroft as the named
respondent.
2 Nos. 03-4039 & 04-1484
of the immigration judge’s decision. In both petitions,2
Hamdan requests that we review the BIA’s use of its
streamlining procedure to affirm the immigration judge’s
decision denying him relief and ordering his removal to
Jordan. Hamdan argues that the immigration judge made
a legal error in adjudicating his application and that the
BIA erred in streamlining his appeal and affirming the
judge’s decision without issuing a written opinion explain-
ing why it refused to correct the alleged errors. In a related
argument, Hamdan also claims that aggressive questioning
by the immigration judge during his adjustment of status
hearing violated the Due Process Clause of the Fifth
Amendment. For the following reasons, we deny Hamdan’s
consolidated petition.
I. Background
Hamdan, a Palestinian born in Kuwait in 1966, initially
entered the United States on a student visa in 1984 and
then returned to Kuwait in 1985. In 1990, Hamdan, his
parents, and his brother fled to Jordan. While in Jordan,
Hamdan obtained a Jordanian passport and a United States
non-immigrant visa, allowing him to travel from Jordan to
the U.S. In December of 1993, Hamdan re-entered the U.S.
on a subsequent student visa. He did not leave the U.S.
upon the expiration of his visa in 1994. Rather, on Septem-
ber 12, 1997, Hamdan filed an application for asylum with
the Immigration and Naturalization Service (“INS”),3
seeking (1) political asylum, (2) withholding of removal, and
2
On March 3, 2004, the Court consolidated the petitions for
review.
3
On March 1, 2003, the INS ceased to exist as an independent
agency within the Department of Justice and its functions were
transferred to the newly-formed Department of Homeland
Security.
Nos. 03-4039 and 04-1484 3
(3) protection under the Convention Against Torture
(“CAT”).
A. Hamdan’s Asylum Application4
In his asylum application, Hamdan claimed to have been
mistreated in Kuwait and Jordan because of his race,
nationality, membership in a particular social group, and
political opinion. In particular, Hamdan alleged that the
Jordanian police beat him because he was a Palestinian
who was critical of the Jordanian government’s mistreat-
ment of Palestinians and also because he was a member of
a particular social group that was persecuted, namely,
Palestinian refugees from Kuwait living in Jordan.
During his asylum hearing, he stated that he was a
member of a political organization (which he did not
identify by name) that held rallies to create an awareness
of the mistreatment of Palestinians in Jordan. Hamdan
alleged that he was detained by Jordanian authorities
on five occasions in 1991 due to his membership in the
unidentified group. Hamdan testified that during his first
detention, Jordanian authorities interrogated him for three
hours and “slapp[ed]” and “kick[ed]” him. He also claimed
to have been beaten during his second detention.5 He
testified that his treatment was “less severe” during the
4
Hamdan has not petitioned this court for review of the immigra-
tion judge’s decision to deny his application for asylum; thus, the
merits of his asylum application are not before us. We recount the
factual background of his asylum application solely to provide
context for the immigration judge’s decision to deny his applica-
tion for adjustment of status.
5
Hamdan did not offer any objective evidence to support his
claims of detention and physical abuse, and he did not provide any
specific details about how he was “beaten.”
4 Nos. 03-4039 & 04-1484
other three detentions; however, he claimed that on those
occasions the Jordanian officers threatened him with
torture and warned him upon his release from detention
that they would continue to “monitor[ ] [his] activities.”
Hamdan claimed that he left Jordan in 1993 for the U.S.
because he feared further persecution from the Jordanian
government. Hamdan also testified that he suffered from
depression and paranoid schizophrenia. His attorney
claimed that the medicals records demonstrated that
his psychological disorders would cause him “to react to
external stimulus in a fashion that is more severe than
maybe other individuals would under the same circum-
stances . . . .” He argued that Hamdan’s exaggerated
response would be an injury to him “above and beyond the
actual physical beatings.”
On December 30, 1999, the immigration judge (“IJ”)
denied Hamdan’s request for asylum, withholding of
removal, and protection under the CAT. The IJ found that
state department reports established that since the end
of 1991, Palestinians living in Kuwait were no longer
routinely assaulted by vigilante groups. As for Palestinians
in Jordan, the judge assumed for the purposes of his
analysis that Hamdan’s testimony was credible and that
Hamdan had in fact been mistreated while detained.
Nonetheless, the judge concluded that the experiences
Hamdan described did not constitute “past persecution.”
The judge credited Hamdan’s testimony that he felt vulner-
able in Jordan due to his depression and his subjective fear
of persecution should he be forced to return to Jordan.
However, the judge noted that Hamdan must also demon-
strate an objective, well-founded fear of persecution in
Jordan and, on this issue, he determined that Hamdan had
failed. Finally, the judge adopted state department reports
which opined, “It would be impossible to argue . . . that
Palestinians are a persecuted majority in Jordan,” and
found that Palestinian refugees from Kuwait living
Nos. 03-4039 and 04-1484 5
in Jordan were not members of a designated social group
eligible for asylum.
Hamdan appealed the decision of the IJ to the BIA;
however, before the Board issued a decision, Hamdan’s
mother was granted citizenship in the United States,
making him immediately eligible to apply for adjustment of
status to that of a permanent resident. See 8 U.S.C.
§ 1255(i)(1)(B). Because a successful application for adjust-
ment of status would allow Hamdan to remain in the U.S.
indefinitely and obviate any need for him to continue with
his asylum application, he filed a motion with the BIA
seeking a remand to the IJ which would allow him to apply
for adjustment of status. See id. The BIA granted Hamdan’s
motion and remanded his case to the same IJ who had
adjudicated his asylum application.
B. Hamdan’s Application for Adjustment of Status6
The IJ held a second hearing, this time on Hamdan’s
adjustment of status application, on December 21, 2001. At
6
Applications for adjustment of status, a form of discretionary
relief, are evaluated by immigration judges after receiving
evidence and testimony concerning the “adverse factors” and
countervailing “equities” present in a given application. Elkins
v. Moreno, 435 U.S. 647, 667 (1978) (quoting Matter of Arai, 13 I.
& N. Dec. 494, 496 (BIA 1970)). “ ‘Where adverse factors are
present in a given application, it may be necessary for the
applicant to offset these by a showing of unusual or even out-
standing equities. Generally, favorable factors such as family ties,
hardship, length of residence in the United States, etc., will be
considered as countervailing factors meriting favorable exercise
of administrative discretion. In the absence of adverse factors,
adjustment will ordinarily be granted, still as a matter
of discretion.’ ” Id. (emphasis in original) (quoting Arai, 13 I. & N.
Dec. at 496).
6 Nos. 03-4039 & 04-1484
the hearing, Hamdan testified that he entered the U.S. in
1993 on a student visa but did not attend the University
of Wisconsin-Milwaukee as promised in his visa application.
He explained that he had several family members legally
residing in the U.S., that he had maintained sporadic
periods of employment since his arrival in 1993, and that he
had obtained an associate degree in Applied Science from
the Milwaukee Area Technical College in 1999. In addition,
Hamdan disclosed that he was under the care of a psychia-
trist and had been diagnosed as suffering from paranoid
schizophrenia. He testified that on one occasion his family
called the police and had him hospitalized for seven weeks
due to his mental illness. Although he was taking medica-
tion for his disorder, he testified that he was admitted to
the hospital because his medication was ineffective, causing
him to act out. When pressed on cross examination for more
details on why he was hospitalized, Hamdan only reiterated
that it was due to the inadequacy of his medication. He
further revealed that, while hospitalized, he was arrested
after he broke a window and attempted to escape.
On cross examination by the government, Hamdan
declared that he had “no political affiliation at all,” a
statement which directly contravened his previous testi-
mony at the asylum hearing when he claimed member-
ship in an unidentified anti-Jordanian political organiza-
tion. Hamdan also admitted that, when he entered the
country on a student visa in 1993, he had no money
and knew that his uncle did not intend to pay for his
education.
Following the government’s questioning of the petition-
er, the IJ asked Hamdan some follow-up questions. He
questioned him about the procurement of his second
student visa in 1993, and Hamdan admitted that his “first
priority” in obtaining the visa was to leave Jordan, not
to attend school. The judge then asked if he was hospital-
ized after his first arrival in the U.S. in 1984. After
Nos. 03-4039 and 04-1484 7
Hamdan said that he had not been hospitalized, the
judge asked if he recalled testifying during his December of
1999 hearing that he had been hospitalized during his
initial visit. In response, Hamdan changed his previous
answer and acknowledged that he had been hospitalized for
seven to ten days in 1984, shortly after his first entry into
the U.S., because he had experienced hallucinations.
Next, the IJ asked Hamdan to explain the inconsistency
between his position at the asylum hearing that he was
detained because he criticized the political situation in
Jordan and his testimony during the adjustment of status
hearing that he had no political opinion. During his asylum
hearing, Hamdan repeatedly claimed he was persecuted on
account of his political opinion. Then, on direct examination
at his adjustment of status hearing, Hamdan’s attorney had
asked, “[D]o you have any type of membership in or any
connection with any kinds of organizations?” Hamdan
replied, “I have no political affiliation at all.”7 Following his
direct and cross examinations, the judge asked Hamdan to
clarify his statement that he had no political affiliation,
inquiring, “[S]o are you saying that you never in any way
opposed the Jordanian government when you lived in
Jordan prior to 1993?” In response, Hamdan stated, “I did
not oppose, no. I just was objecting—used to object to the
internal conditions in Jordan—[ ]living conditions, unem-
ployment, taxes imposed, and this has nothing to do with
politics.”8 The judge reminded Hamdan of his testimony at
7
The record is unclear as to whether Hamdan meant he pres-
ently had no political affiliation or whether he meant he had never
had any political affiliation.
8
On one hand, Hamdan claimed political persecution at the hand
of the Jordanian government; on the other, he claimed that he has
no political affiliation at all. The IJ’s follow-up questions were
undoubtedly an attempt to elicit an explanation for the contradic-
(continued...)
8 Nos. 03-4039 & 04-1484
his asylum hearing that he was mistreated by Jordanian
authorities because of his political opinion, but Hamdan
denied making this prior statement and explained, “I wasn’t
talking about the politics—political situation. I was talking
about the economic situation, but sometimes politics
and the economy intertwine.” He went on to testify: “I
wasn’t talking about political situation in Jordan, only
about the internal situation in Jordan because we were
supposed to receive assistance. We didn’t get the assistance
and things like these, but I don’t criticize the government of
Jordan.” After this disconcerting line of questioning, the
judge concluded his inquiry and continued the hearing to
receive more information from Hamdan regarding his
psychiatric history, diagnosis, and progress.
On March 22, 2002, the IJ denied Hamdan’s request for
adjustment of status. The judge found that Hamdan’s
relationship with his U.S. citizen mother and other family
members as well as his having obtained an associate degree
favored the relief sought. Despite these factors in Hamdan’s
favor, he ultimately concluded that Hamdan’s application
presented significantly more “adverse factors” that out-
weighed the equitable considerations. The judge noted
Hamdan’s mental health history as a matter of concern,
especially given his lengthy hospitalization and recent
arrest. He also determined that Hamdan had engaged in a
“clear pattern of immigration abuse” in obtaining a student
visa without any intention of actually initiating or complet-
ing a program of study at the university where he promised
immigration authorities he would enroll. In addition, the
judge expressed his view that, in light of the testimony
Hamdan had given at his adjustment hearing, his 1997
claim for asylum now appeared suspect and might have
8
(...continued)
tory statements, but Hamdan’s answers only further confounded
his testimony.
Nos. 03-4039 and 04-1484 9
been filed for the sole purpose of delaying his removal
proceedings until he became eligible to adjust his status. In
support of this view, the judge noted his earlier finding that
Hamdan failed to offer any objective evidence at his asylum
hearing to support his application. The judge also pointed
out the contradiction between Hamdan’s position at the
asylum hearing that he was politically active in opposing
the Jordanian government’s treatment of Kuwaiti Palestin-
ians and his statement at the adjustment of status hearing
denying that he had any political affiliation or opinion that
opposed the Jordanian government. The IJ stated that
although Hamdan may not have fabricated his testimony at
the asylum hearing, his 1997 asylum application now
appeared to be frivolous “in the sense that it had no
merit and was not intended really to obtain political asylum
but rather to enable the respondent to stay in the United
States until his mother was naturalized.” The judge deter-
mined, based on the testimony presented at the adjustment
of status hearing, that when Hamdan left Jordan “he was
not fleeing persecution of any kind [but] was simply engag-
ing in a very common practice of using deception to obtain
a visa for an alleged purpose which he had no intention of
complying with.” Finding that Hamdan’s “presence in the
United States since 1993 is almost entirely based on decep-
tion,” the IJ denied Hamdan’s application for adjustment of
status in the exercise of discretion, denied his request for
voluntary departure, and ordered that he be removed to
Jordan.
Hamdan appealed the decision to the BIA, and on October
23, 2003, the BIA affirmed without opinion the IJ’s decision,
making the IJ’s decision the final agency determination. See
8 C.F.R. § 1003.1(e)(4). On November 24, 2003, Hamdan
filed a petition for review with this court as well as a motion
to reconsider with the BIA. See 8 C.F.R. § 1003.2(b). In his
motion to reconsider, Hamdan argued that (1) the BIA
should not have used its streamlining rule to dispose of his
10 Nos. 03-4039 & 04-1484
appeal,9 (2) the IJ violated the principle of res
judicata when, after finding Hamdan’s testimony at his
asylum hearing credible for the purposes of that analysis,
he determined at his adjustment of status hearing that
Hamdan’s asylum application had been frivolous, and (3)
the IJ violated his due process rights by aggressively
questioning Hamdan during the adjustment of status
hearing. On February 24, 2004, the BIA denied the motion
to reconsider in a per curiam order, finding that no error of
fact or law existed in its earlier decision. On March 1, 2004,
Hamdan filed a second petition for review of the BIA’s
decision, and on March 3, 2004, we consolidated the peti-
tions for review.
II. Analysis
In his petition, Hamdan argues that the BIA improperly
employed its streamlining regulation to affirm the IJ’s
decision to deny his application for adjustment of status.10
Next, he argues that the IJ violated the principle of res
judicata by crediting Hamdan’s testimony at the asylum
hearing and then later finding, after the adjustment of
status hearing, that Hamdan engaged in a pattern of
immigration abuse. Finally, he contends that the IJ violated
his right to a fair hearing as guaranteed by the Fifth
Amendment’s Due Process Clause when questioning him at
the adjustment of status hearing. Before proceeding to the
9
As discussed in more detail in the court’s analysis, the BIA’s
streamlining regulation authorizes a single BIA member to affirm
an immigration judge’s decision without issuing an opinion if a
Board member determines that certain conditions are met. See 8
C.F.R. § 1003.1(e)(4)(i).
10
Hamdan does not challenge the validity or constitutionality
of the BIA’s streamlining rule nor the BIA’s discretion to use
the rule as permitted by the guidelines.
Nos. 03-4039 and 04-1484 11
merits of Hamdan’s petition, we address our jurisdiction to
entertain his petition for review.
Until recently, we would have dismissed Hamdan’s
petition for lack of jurisdiction; however, the relevant law
has changed due to the enactment of the REAL ID Act
of 2005, Pub. L. No. 109-13, 119 Stat. 231. Review of
Hamdan’s petition continues to be governed by 8 U.S.C.
§ 1252(a)(2)(B), which prohibits appellate courts from
reviewing “(i) any judgment regarding the granting of relief
under section 1182(h), 1182(i), 1229b, 1229c, or 1255 of this
title, or (ii) any other decision or action of the Attorney
General or the Secretary of Homeland Security the author-
ity for which is specified under this [subchapter] to be in the
discretion of the Attorney General or the Secretary of
Homeland Security, other than the granting of relief under
section 1158(a) of this title.”11 However, Section
106(a)(1)(A)(iii) of the REAL ID Act, enacted on May 11,
2005, qualifies the jurisdiction-stripping provision found in
§ 1252(a)(2)(B) with the enactment of a new provision,
§ 1252(a)(2)(D), which reads as follows:
Judicial Review of Certain Legal Claims—Nothing
in subparagraph (B) or (C), or in any other provi-
sion of this chapter (other than this section) which
limits or eliminates judicial review, shall be con-
strued as precluding review of constitutional claims
or questions of law raised upon a petition for review
filed with an appropriate court of appeals in accor-
dance with this section.
8 U.S.C. § 1252(a)(2)(D). With this amendment, Congress
restored limited judicial review of constitutional claims and
questions of law presented in petitions for review of final
removal orders. Furthermore, in the REAL ID Act, Con-
11
Section 1255, which is one of the sections included in part (i),
governs requests for adjustment of status. 8 U.S.C. § 1255.
12 Nos. 03-4039 & 04-1484
gress explicitly mandated that the amendment restoring
our jurisdiction be retroactive. Fernandez-Ruiz v. Gonzales,
410 F.3d 585, 587 (9th Cir. 2005); see also Ramos v. Gonza-
les, 414 F.3d 800, 801-02 (7th Cir. 2005). Specifically, the
Act declares that § 1252(a)(2)(D) “shall take effect upon the
date of the enactment of this division and shall apply to
cases in which the final administrative order of removal,
deportation, or exclusion was issued before, on, or after the
date of the enactment.” REAL ID Act § 106(b). Thus §
1252(a)(2)(D), as added by the REAL ID Act, retroactively
applies to Hamdan’s petition. Accordingly, we have now
been vested with jurisdiction to review the constitutional
claims and questions of law presented in Hamdan’s petition.
A. The BIA’s Use of the Streamlining Procedure
Before we address the legal and constitutional questions
presented by Hamdan’s petition—specifically, whether
the IJ violated the principle of res judicata or Hamdan’s due
process rights—we briefly address his challenge to
the procedural posture of this case. Hamdan argues that his
appeal was not appropriate for single-member review and
summary affirmance by the BIA since the IJ made a legal
error in denying his application for adjustment of status. He
further contends that this alleged legal error required
correction by the BIA and that the BIA should have re-
viewed his case utilizing a three member panel instead of
summarily affirming the IJ’s decision without issuing an
opinion.
Although an IJ’s decision is ordinarily reviewed by a three
member panel, the BIA’s streamlining regulation authorizes
a single BIA member to affirm the judge’s decision without
opinion if the following conditions are met:
[T]he Board member determines that the result
reached in the decision under review was correct;
that any errors in the decision under review were
Nos. 03-4039 and 04-1484 13
harmless or nonmaterial; and that (A) [t]he issues
on appeal are squarely controlled by existing Board
or federal court precedent and do not involve the
application of precedent to a novel fact situation; or
(B) [t]he factual and legal issues raised on appeal
are not so substantial that the case warrants the
issuance of a written opinion in the case.
8 C.F.R. § 1003.1(e)(4)(i).12 “If a case is streamlined, the IJ’s
decision becomes that of the BIA for purposes of judicial
review.” Georgis v. Ashcroft, 328 F.3d 962, 966-67 (7th Cir.
2003).13 Thus, while courts are to review “only the final
determinations of the BIA,” the practical effect is that when
the BIA streamlines an appeal, a court reviews the IJ’s
decision. See Morales-Morales v. Ashcroft, 384 F.3d 418, 423
(7th Cir. 2004).
The Department of Homeland Security, relying on the
Eighth Circuit’s recent decision in Ngure v. Ashcroft, 367
F.3d 975, 983 (8th Cir. 2004), argues that the BIA’s decision
to streamline is never subject to judicial review because that
decision is committed to the absolute discretion of the
agency and therefore unreviewable under
the Administrative Procedures Act (“APA”). See also Heckler
v. Chaney, 470 U.S. 821, 837-38 (1985). Several courts of
appeals have arrived at different conclusions on this issue
12
If an individual BIA member streamlines his review of a case,
the Board issues a form order containing the following language:
“The Board affirms, without opinion, the result of the decision
below. The decision below is, therefore, the final agency determina-
tion.” 8 C.F.R. § 1003.1(e)(4)(ii).
13
A decision to streamline “does not mean that the BIA has
adopted, or entirely approves of, the IJ’s determinations; it only
means that the BIA deemed any errors by the IJ to be harmless.”
Falcon Carriche v. Ashcroft, 350 F.3d 845, 849 (9th Cir. 2003); see
8 C.F.R. §1003.1(e)(4)(ii).
14 Nos. 03-4039 & 04-1484
and related issues. Compare Smriko v. Ashcroft, 387 F.3d
279, 294 (3d Cir. 2004) (holding that the BIA’s streamlining
decisions are reviewable), Chen v. Ashcroft, 378 F.3d 1081,
1088 (9th Cir. 2004), Haoud v. Ashcroft, 350 F.3d 201, 206
(1st Cir. 2003), and Falcon Carriche, 350 F.3d at 852-53,
with Tsegay v. Ashcroft, 386 F.3d 1347, 1356 (10th Cir.
2004) (holding that decisions under § 1003.1(e)(4)(i) of the
streamlining provisions are unreviewable), and Ngure, 367
F.3d at 983. However, we need not address this issue. This
is not a case where the BIA’s decision to streamline
“impact[s]” or “distort[s]” the exercise of our “judicial review
function.” Smriko, 387 F.3d at 296. As explained, we
generally need not review the BIA’s decision to streamline,
for we review the IJ’s decision directly when we have
jurisdiction to do so, in which case “it makes no practical
difference whether the BIA properly or improperly stream-
lined review . . . .” Georgis, 328 F.3d at 967. In this in-
stance, we have limited jurisdiction to review the IJ’s
discretionary decision regarding adjustment of status; thus,
it makes no practical difference whether the BIA properly
or improperly streamlined review. Accordingly, we now turn
our attention to Hamdan’s challenges to the IJ’s decision to
deny him adjustment of status.
B. Hamdan’s Request for Adjustment of Status
Hamdan’s primary argument is that the IJ violated the
principle of res judicata by “revisiting” his asylum appli-
cation at the adjustment of status hearing.14 In the opin
14
Hamdan also raises two additional arguments in his brief: (1)
that the IJ violated an agency rule by stating that his asylum
application was frivolous without specifically finding that he had
presented fabricated testimony, see 8 C.F.R. § 208.20; and (2) that
the IJ’s belief that he provided contradictory testimony concerning
(continued...)
Nos. 03-4039 and 04-1484 15
ion denying Hamdan’s request for adjustment of status, the
IJ commented on Hamdan’s asylum application, stating
that Hamdan’s “application [for asylum] is frivolous,
frivolous in the sense it had no merit and was not intended
really to obtain political asylum but rather to enable the
respondent to stay in the United States until his mother
was naturalized.” Hamdan claims that this pronouncement
exceeds the IJ’s mandate on remand. He argues that
because the IJ did not previously determine that his asylum
application was frivolous, his decision on Hamdan’s request
for adjustment of status indicates that the IJ revisited
previous facts that had already been established.
The doctrine of res judicata proclaims that “a valid and
final judgment precludes a second suit between the same
parties on the same claim or any part thereof.” Medina
v. INS, 993 F.2d 499, 503 (5th Cir. 1993); see also Dye v.
U.S. Farm Servs. Agency, 129 Fed. Appx. 320, 322 (7th Cir.
2005) (“Res judicata bars suits where there is a final
judgment on the merits; an identity of the issues of the
lawsuit; and an identity of the parties or their privies.”). Res
judicata (as well as the related principle of collateral
estoppel) applies to administrative proceedings such as
the adjudication of petitions for relief in immigration courts.
See Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S.
104, 107-08 (1991); Santana-Albarran v. Ashcroft, 393 F.3d
699, 704 (6th Cir. 2005); Johnson v. Ashcroft, 378 F.3d 164,
14
(...continued)
his political beliefs was misplaced because he sought asylum
based on an imputed political opinion rather than because he
actually held a political opinion, see Lwin v. INS, 144 F.3d 505(7th Cir. 1998). The record reveals that Hamdan failed to present
these arguments to the BIA and has thus failed to exhaust his
administrative remedies with respect to these issues. Accordingly,
we lack jurisdiction to consider either contention in our analysis.
Awad v. Ashcroft, 328 F.3d 336, 340 (7th Cir. 2003).
16 Nos. 03-4039 & 04-1484
172 n.10 (2d Cir. 2004); Matter of Barragan-Garibay, 15 I.
& N. Dec. 77, 78-79 (BIA 1974). Indeed, “[w]hen an adminis-
trative agency is acting in a judicial capacity and resolves
disputed issues of fact properly before it which the parties
have had an adequate opportunity to litigate, the courts
have not hesitated to apply res judicata to enforce repose.”
Astoria Fed. Sav. & Loan Ass’n, 501 U.S. at 107 (quoting
United States v. Utah Constr. & Mining Co., 384 U.S. 394,
422 (1966)). Although res judicata does apply to immigra-
tion proceedings, the concept has no role to play in any
proceeding until a final judgment has been reached on an
issue. Medina, 993 F.2d at 503; see also Tittjung v. Reno,
199 F.3d 393, 397 n.2 (7th Cir. 1999).15
Despite the myriad of problems that exist with Hamdan’s
res judicata argument, see supra footnote 15, we need not
resolve the issue of whether the IJ violated the principle of
15
In Hamdan’s case, the question arises whether a final judgment
was reached on his asylum claim. After the IJ issued his decision
denying Hamdan’s application for asylum, Hamdan sought review
of his case with the BIA. However, before the BIA could address
his appeal and issue a decision, Hamdan requested and received
a remand to the IJ. Arguably, since the BIA never had the
opportunity to review the IJ’s decision on his asylum application,
the decision was never “final” in the sense that res judicata is
even applicable. See Abdulai v. Ashcroft, 239 F.3d 542, 548-49 (3rd
Cir. 2001) (“Because an alien facing removal may appeal to the
BIA as of right, and because the BIA has the power to conduct a
de novo review of IJ decisions, there is no ‘final order’ until the
BIA acts.”); see also Castillo-Rodriguez v. INS, 929 F.2d 181, 183
(5th Cir. 1991) (“The order of the immigration judge . . . is not
final when a timely appeal is taken to the Board.”). Even assum-
ing the decision was final, the decision was to deny his application
for asylum, a decision that the IJ did not modify in the separate
adjustment of status decision. Rather, he merely illustrated the
suspect timing of the asylum application as it related to Hamdan’s
request for adjustment of status.
Nos. 03-4039 and 04-1484 17
res judicata. Even if we were to determine that the IJ’s
decision on Hamdan’s asylum application was final and,
going one step further, that the judge had violated the
principle of res judicata by revisiting Hamdan’s asylum
application and questioning Hamdan’s credibility during the
adjustment of status hearing, the record reveals that the IJ
articulated sufficient reasons apart from the suspect nature
of Hamdan’s asylum application to justify denying him
adjustment of status. We have previously held that overt
abuse of immigration laws alone is a sufficient reason to
deny an alien discretionary relief. See, e.g., Elkins v.
Moreno, 435 U.S. 647, 668 (1978); Garcia-Lopez v. INS, 923
F.2d 72, 76 (7th Cir. 1991); Achacoso-Sanchez v. INS, 779
F.2d 1260, 1262 (7th Cir. 1985); Patel v. INS, 738 F.2d 239,
242 (7th Cir. 1984). We have also found that the “[a]bsence
of good faith entry is considered a critical adverse factor in
an application for adjustment of status” and that “[t]his
factor alone may be sufficient to deny adjustment to
permanent resident status.” Patel, 738 F.2d at 242; see also
Elkins, 435 U.S. at 668 (finding that among the adverse
factors considered as militating against the granting of
adjustment are “such things as entering the United States
under fraudulent circumstances”). Furthermore, “[i]f a
sufficient reason for the exercise of discretion to deny an
application exists, any ill-advised reason for the denial may
be disregarded as mere surplusage.” Patel, 738 F.2d at 243.
Beyond noting that Hamdan’s asylum application seemed
suspect based on his testimony at the adjustment of status
hearing, the IJ also set forth additional grounds for denying
Hamdan’s request for adjustment of status. Specifically, the
judge highlighted Hamdan’s abuse of immigration laws
when he obtained a student visa without intending to study
at the designated university (as he had represented to the
immigration authorities), his failure to attend the univer-
sity previously designated once he arrived in the U.S, and
his failure to return to Jordan as required when his student
visa expired. The IJ noted that this was not Hamdan’s first
18 Nos. 03-4039 & 04-1484
deception, as he had entered the U.S. in 1984 allegedly to
study but did not, returning to Kuwait after only a brief
stay. The IJ also mentioned Hamdan’s recent hospitaliza-
tion to treat his mental illness as well as his subsequent
arrest and stated that he would consider these matters in
determining Hamdan’s “worthiness” for the relief sought.
All of these additional reasons set forth by the IJ in his
decision clearly manifested themselves during the adjust-
ment of status hearing and provided sufficient reason for
the IJ, in his discretion, to deny Hamdan’s request. Because
the IJ has supplied additional reasons for denying Hamdan
adjustment of status beyond his comments regarding
Hamdan’s “frivolous” asylum application, any alleged
violation of the principle of res judicata by the IJ would
be harmless.
Hamdan’s only remaining argument is that the IJ
violated his right to due process by aggressively questioning
him at his adjustment of status hearing. The Fifth Amend-
ment entitles aliens to due process in immigra-
tion proceedings. Reno v. Flores, 507 U.S. 292, 306 (1993).
Furthermore, in extreme cases, an overly aggressive IJ
can dominate the proceedings so as to prevent an alien from
effectively presenting his case. See Podio v. INS, 153 F.3d
506, 509 (7th Cir. 1998). However, in order to make a valid
due process claim, “a claimant must have a liberty or
property interest in the outcome of the proceedings.” Dave
v. Ashcroft, 363 F.3d 649, 653 (7th Cir. 2004). As we have
previously ruled, “in immigration proceedings, a petitioner
has no liberty or property interest in obtaining purely
discretionary relief . . . . ” Id. Thus, an alien’s right to due
process does not extend to proceedings that provide only
discretionary relief, and the denial of such relief does not
violate due process. Id.; see also Dandan v. Ashcroft, 339
F.3d 567, 575 (7th Cir. 2003) (“[T]he decision when to
commence deportation proceedings is within the discretion
of the Attorney General and does not, therefore, involve a
Nos. 03-4039 and 04-1484 19
protected property or liberty interest . . . . As such,
Dandan’s due process argument does not get off the
ground.”); Nativi-Gomez v. Ashcroft, 344 F.3d 805, 808 (8th
Cir. 2003); Aguilera v. Kirkpatrick, 241 F.3d 1286, 1292-93
(10th Cir. 2001); Huicochea-Gomez v. INS, 237 F.3d 696,
700 (6th Cir. 2001); Appiah v. INS, 202 F.3d 704, 709 (4th
Cir. 2000); Mejia Rodriguez v. Reno, 178 F.3d 1139, 1146-48
(11th Cir. 1999). This reasoning has been applied to
cancellation of removal cases, see Dave, 363 F.3d at 653,
claims of ineffective assistance of counsel, see Nativi-Gomez,
344 F.3d at 808, and claims that the BIA inappropriately
streamlined an appeal despite an IJ’s use of an inappropri-
ate legal standard, see Garcia v. Att’y Gen. of the U.S., 329
F.3d 1217, 1222-23 (11th Cir. 2003). Because adjustment of
status is also a form of discretionary relief, see Achacoso-
Sanchez, 779 F.2d at 1262-63, Hamdan’s due process
challenge to the BIA’s denial of his request for adjustment
of status fails, see Garcia, 329 F.3d at 1222 (“[W]here a
constitutional claim has no merit, the Court does not have
jurisdiction.”).
III. Conclusion
Accordingly, we DENY Hamdan’s petition for review.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-13-05