Mohammad Hussain v. Mukasey, Michael B.

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 06-2932 & 06-3318
ABDUL GHAFFAR MOHAMMAD HUSSAIN,
Petitioner,
v.
PETER D. KEISLER, Acting Attorney General
of the United States,
Respondent.
____________
Petitions for Review of an Order of
the Board of Immigration Appeals.
No. A 76 773 859
____________
ARGUED MARCH 29, 2007—DECIDED OCTOBER 24, 2007
____________
Before FLAUM, EVANS, and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. Abdul Hussain, a native and
citizen of Pakistan, contends that he did not receive a
fair hearing because the immigration judge denied him
the opportunity to file an application for asylum. We
reject this argument, as Hussain in fact filed an asylum
application but later withdrew it in exchange for a longer
period of voluntary departure. Hussain also argues that
his obligation to register pursuant to the National
Security Entry-Exit Registration System led to the initia-
tion of removal proceedings against him and violated his
right to equal protection of the laws. We lack jurisdiction
2 Nos. 06-2932 & 06-3318
to consider his argument that the government improperly
commenced the removal proceedings against him. And
even if the removal proceedings commenced before he
registered, the fact remains that the immigration judge
found him removable because he overstayed his visa.
Therefore, we deny the petition for review.
I. BACKGROUND
Abdul Hussain entered the United States on a six-
month visitor visa in June 2001. He remained in the
United States after his visa expired. In late 2002, the
United States government instituted the National Security
Entry-Exit Registration System (“NSEERS”), a program
that required males over the age of sixteen from certain
countries, including Pakistan, to register with the Depart-
ment of Homeland Security (“DHS”). Hussain voluntarily
appeared at a DHS office in April 2003, where he gave
information about his whereabouts in accordance with the
NSEERS program. That same day, he alleges, he was
placed in removal proceedings.
The government charged Hussain with removability as
an alien who had remained in the United States longer
than permitted. The first hearing in Hussain’s removal
proceedings took place on August 21, 2003. There,
Hussain’s counsel asked for a continuance to allow
Hussain time to consider the relief he would seek. In
response, the immigration judge stated that any applica-
tion for asylum should have been filed no later than
June 8, 2002, as asylum applications must normally be
filed within one year of an alien’s arrival in the United
States. See 8 U.S.C. § 1158(a)(2)(B). The immigration
judge told Hussain that if he chose to file for asylum, he
might be time-barred from doing so unless he could show
changed circumstances, that the time bar did not apply to
requests for withholding of removal or relief under the
Nos. 06-2932 & 06-3318 3
Convention Against Torture (“CAT”), and that Hussain
might still be eligible for voluntary departure. The immi-
gration judge then advised Hussain’s counsel that if
Hussain intended to apply for withholding of removal or
CAT protection, he expected Hussain to have a prepared
form ready for filing at the next hearing. Finally, the
immigration judge stated that at the next hearing, coun-
sel could advise the court whether Hussain was eligible
for any other relief.
The next hearing occurred on October 23, 2003. Hussain
was represented by the same counsel. Through counsel,
Hussain conceded he was removable as charged. The
immigration judge then asked Hussain what relief he
sought. After Hussain’s counsel explained that he planned
to file an asylum application within thirty days, the
immigration judge responded that he would consider the
asylum claim only if Hussain could show a change of
circumstances or exceptional circumstances justifying his
failure to timely file the claim. Hussain’s counsel re-
sponded, “All right.” The immigration judge then asked
how much time Hussain wanted to file the application.
After requesting thirty days, the immigration judge
agreed and stated, “And on the application please strike
the word asylum and enter this phrase, put CAT, C-A-T,
Convention Against Torture.” Hussain’s counsel re-
sponded, “All right. I certainly will.”
On November 24, 2003, Hussain filed an application for
asylum, withholding of removal, and CAT protection. At
the next hearing, Hussain’s counsel stated that Hussain
had agreed to withdraw his applications for relief in
exchange for a voluntary departure period of 120 days
instead of 60 days. Hussain told the immigration judge
that he wanted to take the extended voluntary departure
“if that is the only option.” The immigration judge re-
sponded, “Well, you have to tell me. Are you willing, are
you in agreement with your attorney that you wish to
4 Nos. 06-2932 & 06-3318
apply for voluntary departure 120 days?” Hussain an-
swered, “Okay,” and his counsel also stated that he
recommended that Hussain accept the longer voluntary
departure period. The immigration judge then issued an
oral decision accepting Hussain’s withdrawal of his
requests for relief and granting a voluntary departure
period of 120 days.
With new counsel, Hussain filed an appeal from the
immigration judge’s decision, claiming that the immigra-
tion judge had barred him from making an asylum claim.
He also filed a motion to reopen in light of a then-pending
class action lawsuit on behalf of aliens who had reg-
istered under the NSEERS. The Bureau of Immigration
Appeals (“BIA”) rejected Hussain’s arguments, and
Hussain subsequently filed a petition for review with this
court.
II. ANALYSIS
A. Asylum Claim
Hussain first maintains that he did not receive a funda-
mentally fair immigration hearing. Although Hussain
styles his claim as a violation of due process, we have
said that “[t]here is no need to invoke the Constitution
when the immigration statute itself guarantees a fair
hearing.” Kadia v. Gonzales, 2007 WL 2566015, at *6 (7th
Cir. Sept. 7, 2007) (citing 8 U.S.C. § 1229a(b)(4)(B)) (“the
alien shall have a reasonable opportunity to examine the
evidence against the alien, to present evidence on the
alien’s own behalf, and to cross-examine witnesses pro-
vided by the Government”); see also Rehman v. Gonzales,
441 F.3d 506, 508-09 (7th Cir. 2006). An alien must
demonstrate prejudice to succeed on his claim that he
did not receive a fair hearing. See Rehman, 441 F.3d
at 509.
Nos. 06-2932 & 06-3318 5
Hussain’s principal argument is that the immigration
judge barred him from filing an asylum application. At
bottom, this claim fails because the record is clear that
Hussain filed an asylum application. He later withdrew
his application in exchange for a longer voluntary de-
parture period, but that was a choice he made with coun-
sel present and after the immigration judge questioned
him to ensure he wished to do so. Cf. United States v.
Carroll, 412 F.3d 787, 792 (7th Cir. 2005) (upholding
voluntarily-entered guilty plea).
In any event, the immigration judge was not wrong
to warn Hussain that he could only consider an asylum
application from him under limited circumstances. In
general, an alien may not file an application for asylum
unless he demonstrates “by clear and convincing evidence
that the application has been filed within 1 year after
the date of the alien’s arrival in the United States.” 8
U.S.C. § 1158(a)(2)(B). By the time the government
charged Hussain with removability, more than a year had
passed since he entered the United States. And he has
never disputed that he filed his asylum application more
than one year after his arrival.
The one-year time bar does not apply, however, if the
alien demonstrates either “the existence of changed
circumstances which materially affect the applicant’s
eligibility for asylum” or extraordinary circumstances
relating to the delay in filing. 8 U.S.C. § 1158(a)(2)(D).
Consistent with this law, the immigration judge re-
minded Hussain on multiple occasions that he would not
consider Hussain’s untimely asylum application unless
Hussain showed changed circumstances or some other
justification for the belated filing. For instance, at the
August 21, 2003, initial hearing, the immigration judge
first stated that any application for asylum should have
been filed by June 8, 2002. He then instructed Hussain
and his counsel that: (1) if Hussain chose to file an ap-
6 Nos. 06-2932 & 06-3318
plication for asylum, he might be time-barred unless he
could show changed circumstances; (2) the time bar did not
apply to requests for withholding of removal or relief under
the Convention Against Torture; and (3) Hussain could
still be eligible for voluntary departure. These directives
conform to the statute’s mandate that only changed or
extraordinary circumstances allow an immigration judge
to consider an untimely asylum application. See 8 U.S.C.
§§ 1158(a)(2)(B), (D); see also 8 C.F.R. § 208.4.
At the next hearing approximately two months later,
Hussain conceded he was removable as charged. After
Hussain’s counsel explained that he planned to file an
application for asylum within thirty days, the immigra-
tion judge stated that he would consider the asylum
claim only if Hussain could demonstrate changed circum-
stances or exceptional circumstances justifying his fail-
ure to file the claim within one year. Once again, this
directive was consistent with the law, and the immigra-
tion judge did nothing improper in giving it. Hussain also
takes issue with the immigration judge’s request that
counsel strike the word “asylum” from the application he
planned to file and to write instead “CAT, C-A-T, Conven-
tion Against Torture.” In light of the immigration judge’s
statement moments earlier that he would entertain an
asylum application if Hussain showed changed or excep-
tional circumstances, the same sentiment the judge had
expressed throughout the proceedings, and Hussain’s fail-
ure throughout the proceedings to suggest that he had
any basis for showing changed or exceptional circum-
stances, we do not take this statement as anything more
than a suggestion that counsel write “Convention Against
Torture” on the application if that was the relief Hussain
decided to request.
Notably, Hussain’s counsel at the time did not consider
Hussain to be “prohibited” from filing an asylum applica-
Nos. 06-2932 & 06-3318 7
tion. Hussain ultimately filed an application for asylum
and other relief on November 24, 2003, and he did not
strike out the word “asylum” on the application. At the
next hearing, the immigration judge accepted the ap-
plication for asylum and withholding of removal. At that
time, however, Hussain withdrew his requests for relief
in return for a longer voluntary departure period.
At each hearing before Hussain filed his asylum applica-
tion, the immigration judge, consistent with the law,
advised Hussain and his counsel that he would consider
Hussain’s asylum application if Hussain could establish
changed or exceptional circumstances justifying the fil-
ing. Hussain, however, never attempted to do so. Instead,
he withdrew his applications for relief in return for an
extended period of voluntary departure. Hussain, there-
fore, received the opportunity to file for asylum and a
full and fair hearing. Finally, because Hussain volun-
tarily withdrew his application for asylum, there is no
merit to Hussain’s argument that the immigration judge
should have explained in his decision why Hussain was
not granted asylum.
B. Equal Protection Challenge
Hussain also maintains that his obligation to register
with immigration authorities pursuant to the National
Security Entry-Exit Registration System violated his
right to equal protection because it targeted aliens from
Arab and Muslim countries. See Ramos v. Gonzales, 414
F.3d 800, 806 (7th Cir. 2005) (stating aliens are entitled to
equal protection of the law) (citing Yick Wo v. Hopkins, 118
U.S. 356, 359 (1886)). Before it was discontinued, the
NSEERS program required males aged sixteen years or
older, from certain countries only, to register with the
government. The final rule enacting the program stated:
8 Nos. 06-2932 & 06-3318
Recent terrorist attacks have underscored the need
to broaden the registration requirements for
nonimmigrant aliens from certain designated
countries . . . whose presence in the United States
requires closer monitoring, to ensure that they
provide specific information at regular intervals to
ensure their compliance with the terms of their
visas and admission, and to ensure that they de-
part the United States at the end of their autho-
rized stay.
67 Fed. Reg. 52,284. The NSEERS program required that
Hussain, an adult male from Pakistan, register.
Hussain argues in his brief that he was placed in
removal proceedings “only after he registered with the
NSEERS program.” Because the NSEERS requirements
applied only to persons from certain countries, including
Pakistan, Hussain maintains that the program violated
equal protection. Our decisions in Hadayat v. Gonzales,
458 F.3d 659 (7th Cir. 2006), and Igbal Ali v. Gonzales,
2007 WL 2684825 (7th Cir. Sept. 14, 2007) instruct that
we lack jurisdiction to consider this claim.
Like Hussain, the petitioner in Hadayat argued that his
obligation to register with NSEERS meant that he had
been unconstitutionally targeted for removal based on his
ethnicity and religion. See Hadayat, 458 F.3d at 664-65.
We concluded that 8 U.S.C. § 1252(g) deprived us of
jurisdiction to consider this challenge. Id. This section
provides:
Except as provided in this section and notwith-
standing any other provision of law . . ., no court
shall have jurisdiction to hear any cause or claim
by or on behalf of any alien arising from the deci-
sion or action by the Attorney General to com-
mence proceedings, adjudicate cases, or execute
removal orders against any alien under this chap-
ter.
Nos. 06-2932 & 06-3318 9
Because the petitioner contended that the government had
commenced removal proceedings against him as a result
of his compliance with the NSEERS program, we con-
cluded that we lacked jurisdiction to review the equal
protection challenge. Hadayat, 458 F.3d at 665. In Igbal
Ali, we relied on Hadayat to conclude that we lacked
jurisdiction to consider a similar challenge. See Igbal Ali,
2007 WL 2684825, at *6.
These decisions strongly suggest that we lack jurisdic-
tion to consider Hussain’s equal protection challenge
as well. Hussain, however, maintains that notwithstand-
ing our precedent, the REAL ID Act’s amendments to
8 U.S.C. § 1252 allow us to consider his constitutional
challenge to the commencement of removal proceedings
against him. We did not have reason to consider this
argument in our previous cases, but we will do so now.
With the passage of the REAL ID Act, § 1252(a)(2)(D)
provides:
Nothing in subparagraph (B) or (C), or in any other
provision of this Act (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 ap-
peals in accordance with this section.
(Emphasis added.) Hussain asks that we read this provi-
sion as allowing our review of his constitutional claim—a
review that § 1252(g) would otherwise forbid. We decline
to adopt this reading.
By its plain language, § 1252(a)(2)(D)’s authorization to
review certain constitutional claims or questions of law
does not apply to § 1252(g). Section 1252(a)(2)(D) plainly
states that other limitations on judicial review in “this
section”—that is, section 1252—still apply. See Hamilton
10 Nos. 06-2932 & 06-3318
v. Gonzales, 485 F.3d 564, 567 (10th Cir. 2007); see also
Ballesteros v. Ashcroft, 452 F.3d 1153, 1157 (10th Cir.
2006) (“Consequently, unless another subparagraph of
§ 1252 precludes our review of Mr. Ballesteros’ claims
that raise either constitutional or legal questions, we
also have jurisdiction to review those claims.”); cf.
Dababneh v. Gonzales, 471 F.3d 806, 810 n.2 (7th Cir.
2006) (stating petitioner’s claim was not one challenging
commencement of proceedings subject to § 1252(g), but
was rather a challenge to whether notice was defective
and was thus reviewable as pure question of law).
Hussain’s interpretation would have us disregard the
words “other than this section” in § 1252(a)(2)(D), and we
will not do that here. See Duncan v. Walker, 533 U.S. 167,
174 (2001) (courts should “ ‘give effect, if possible, to
every clause and word of a statute’ ”) (quoting United
States v. Menasche, 348 U.S. 528, 538-39 (1955)).
The Fifth Circuit’s decision in Flores-Ledezma v. Gonza-
les, 415 F.3d 375, 380 (5th Cir. 2005), does not change our
conclusion. There, the court reasoned that the petitioner
was “not simply challenging the discretionary decision of
the Attorney General to commence removal proceedings
or execute removal orders, but rather he challenge[d] the
constitutionality of the statutory scheme allowing for such
discretion.” Id. at 374. As a result, § 1252(g) did not
deprive the court of jurisdiction to review the petitioner’s
claim. Id. Here, in contrast, Hussain is not challenging
the Attorney General’s authority to commence proceed-
ings. Rather, his argument challenges the decision to
commence proceedings against him. Section 1252(g)
precludes our review of such a claim. (We noted in
Hadayat that there was a “narrow exception for the ‘rare
case in which the alleged basis of discrimination is so
outrageous’ ” that judicial review is appropriate, but we
concluded that the petitioner’s challenge to the NSEERS
program did not rise to that level. Hadayat, 458 F.3d at
Nos. 06-2932 & 06-3318 11
665 (quoting Reno v. American-Arab Anti-Discrimination
Comm., 525 U.S. 471, 491 (1999)). We will not revisit
that reasoning here).
One note remains. Although Hussain asserts that the
government initiated removal proceedings only after he
registered pursuant to the NSEERS program, it is not
clear on this record whether that is in fact what happened.
A removal proceeding to determine the deportability or
inadmissibility of an alien such as Hussain “commences”
by the filing of a notice to appear with the immigration
court. 8 C.F.R. § 1239.1. Here, the government issued
Hussain a notice to appear on March 4, 2003 and filed it
with the immigration court a week later. According to
Hussain’s motion to remand filed with the BIA, it was
not until April 23, 2003, that Hussain voluntarily ap-
peared to provide information pursuant to NSEERS. If
these dates are accurate, the government would have
“commence[d] proceedings,” in the sense that term is used
in § 1252(g), against Hussain well before he registered
pursuant to NSEERS. As a result, § 1252(g) would not
deprive us of jurisdiction to consider his equal protection
claim. Nonetheless, Hussain’s equal protection challenge
to NSEERS would not help him in this proceeding. Assum-
ing that the sequence set forth above is correct, well before
he registered in compliance with the NSEERS program,
the government charged Hussain with removability
because he remained in the United States longer than his
visa allowed. And on that basis, the immigration judge
found him removable. His registration (and his national
origin) had no bearing on this conclusion. See Zerrei v.
Gonzales, 471 F.3d 342, 348 (2d Cir. 2006) (“even if Zerrei
could show that the NSEERS program . . . violated the
equal protection guarantee of the Fifth Amendment, the
fact would remain that Zerrei has overstayed his visa
and has no right to remain in this country”); Kandamar v.
Gonzales, 464 F.3d 65, 74 (1st Cir. 2006) (“the decision to
12 Nos. 06-2932 & 06-3318
remove Petitioner was based on the fact that he had
overstayed his visa, not based on his national origin”);
Ahmed v. Gonzales, 447 F.3d 433, 440 (5th Cir. 2006)
(petitioner’s registration in NSEERS had “nothing to do
with” immigration judge’s decision to find him removable).
III. CONCLUSION
For the foregoing reasons, Hussain’s petition for re-
view is DENIED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-24-07