Hamad Almutairi v. Eric Holder, Jr.

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-2734
H AMAD F ALHA A LMUTAIRI,
Petitioner,
v.
E RIC H. H OLDER, JR., Attorney General
of the United States,
Respondent.
On Petition for Review from an Order of the
Board of Immigration Appeals.
No. A097 838 024
A RGUED A PRIL 30, 2013—D ECIDED JULY 12, 2013
Before F LAUM, W OOD , and H AMILTON, Circuit Judges.
W OOD , Circuit Judge. Hamad Almutairi, a citizen of
Kuwait, is attempting in this case to obtain review of the
denial of his application for asylum and withholding of
removal. We say “attempting” because he encountered
along the way some procedural snarls in connection
with a grant of voluntary departure; these difficulties
caused his case to bounce from the Board of Immigration
2 No. 12-2734
Appeals back to the Immigration Judge for further con-
sideration of voluntary departure. At this point, how-
ever, that issue is off the table and the case is ready for
decision. We conclude that we lack jurisdiction to
review the BIA’s decision that Almutairi’s asylum ap-
plication is untimely. We can reach the merits of his
application for withholding of removal, but we
conclude that substantial evidence supports the Board’s
decision to deny that relief.
I
According to his testimony, which the IJ found
credible, Almutairi served in the Kuwaiti Air Force in
August of 1990, when Iraq invaded and occupied Kuwait.
After the Kuwaiti military surrendered, Almutairi re-
mained in the country and joined a resistance group.
Iraqi soldiers captured him in September 1990. What
followed was a ghastly period of nine days during
which he was brutally tortured: his thumb nails were
ripped off, he was electrocuted, he was cut with knives
and burned with cigarettes, and he was beaten. As if that
were not enough, his captors also brought a fellow
prisoner into his cell, sodomized that man with a stick,
and warned Almutairi that the same would happen to
him if he did not tell them where the Kuwaiti resistance
was hiding its weapons. Almutairi finally cracked
under the pressure and brought the Iraqi soldiers to a
house that he thought would be unoccupied. It was not.
When the soldiers entered the house, they found and
arrested a man who was inside. They then released
No. 12-2734 3
Almutairi. Two days later the soldiers publicly executed
the man from the house, along with three others.
Almutairi fled the country, but he and his family later
returned to their home in Kuwait after the country’s
liberation. Once back in Kuwait, Almutairi received
four threatening phone calls over several months in 1991
and 1992. The caller, who appeared to have a Kuwaiti
accent, accused Almutairi of informing on “these four
guys” who were executed a year earlier. Around this
time, his car tires were slashed while he was parked at a
shopping center. He never reported any of these
threats to the Kuwaiti government. Almutairi’s family
eventually encouraged him to leave the country.
Two years after the threats, after spending time in
Saudi Arabia, Lebanon, and the United Arab Emirates,
Almutairi came to the United States in 1994 on a
nonimmigrant student visa. He ended his studies ten
years later, apparently taking so long because he feared
that upon completing his degree he would be required
to return to Kuwait. In 2006 he was served with a Notice
to Appear for violating the conditions of his visa. The
following year, after his family had received another
threatening phone call in Kuwait, he applied for
asylum, withholding of removal, and relief under the
Convention Against Torture.
At his immigration hearing Almutairi asserted that
he feared persecution as a member of a social group
consisting of persons who had been forced to assist
the Iraqi troops during the invasion of 1990 and who
were now perceived by Kuwaitis as being sympathetic to
4 No. 12-2734
Iraq. He believed that the threatening caller was a
family member of one of the four men who were
executed in Kuwait, and that this man had been
tracking his movements in Kuwait. Almutairi ex-
plained that he did not complain to the Kuwaiti gov-
ernment or apply earlier for asylum in the United States
because he feared that if anyone from Kuwait found out
what had happened in 1990 he would be targeted and
his family’s reputation would be destroyed.
The IJ denied Almutairi’s requests for relief. The IJ
first held that Almutairi was ineligible for asylum
because he had not applied within one year of his 1994
entry into the United States, nor had he shown changed
country conditions or extraordinary circumstances suffi-
cient to justify his delay. With respect to Almutairi’s
claim for withholding of removal, the IJ concluded that
he had demonstrated past persecution but that the gov-
ernment had rebutted the presumption of future per-
secution because Iraq no longer occupies Kuwait, and
no evidence suggested that the Kuwaiti government
would harm him. The IJ also ruled that Almutairi had
not demonstrated membership in a cognizable social
group. Finally, Almutairi’s claim under the Convention
Against Torture failed, the IJ reasoned, because he
could not show that he would be tortured by Iraqi troops
after their expulsion from Kuwait in 1991. The IJ none-
theless granted Almutairi the option of voluntarily de-
parting within 60 days; that option would con-
vert into an order of removal if he chose not to depart
voluntarily.
No. 12-2734 5
In an opinion issued on June 28, 2012, the Board of
Immigration Appeals upheld the IJ’s decision. It agreed
with the IJ that Almutairi had presented no exceptional
circumstances justifying his untimely asylum applica-
tion. This untimeliness, the Board ruled, also prevented
Almutairi from pursuing humanitarian asylum. (A
noncitizen who has not established a well-founded fear
of future persecution may qualify for humanitarian
asylum if he or she “has demonstrated compelling
reasons for being unable or unwilling to return to the
country [designated for removal] arising out of the
severity of the past persecution” or “has established
that there is a reasonable possibility that he or she may
suffer other serious harm upon removal to that country.”
8 C.F.R. § 1208.13(b)(1)(iii).) The Board declined to rule
on the cognizability of Almutairi’s proposed social
group but reasoned that he had not demonstrated a
clear probability that he would be persecuted on
account of his membership in that group, nor had he
shown that the Kuwaiti government would be unwilling
or unable to protect him. The Board deemed waived
his claim under the Convention Against Torture.
Finally, the Board noted that it lacked the power to rein-
state Almutairi’s period of voluntary departure (which
expired long before the Board decided his appeal)
because he had not submitted proof of the posting of a
bond. But because the IJ had failed to notify Almutairi
of the necessity of posting a bond, the Board issued a
limited remand “solely for the Immigration Judge to
grant a new period of voluntary departure with the
requisite advisals.”
6 No. 12-2734
II
On July 25, 2012, Almutairi filed a petition for review
from the June 28, 2012, decision of the Board. This
prompted a motion from the government asking this
court to dismiss the petition for review for “prudential”
reasons, without prejudice to re-filing upon the issuance
of an administratively final order of removal that com-
pleted the adjudication of voluntary departure. (The
problem with the IJ’s first order was that it did not
include all the warnings that must accompany a
voluntary departure option; the Board remanded so
that the IJ could cure this one flaw, not for purposes
of any substantive ground of relief.) In its motion, the
government points out that the regulations governing
voluntary departure, 8 C.F.R. § 1240.26, require noncitizens
to choose either voluntary departure or a petition for
review to a federal court of appeals, because the filing of
a petition for review automatically terminates the grant
of voluntary departure. See id. § 1240.26(i). The govern-
ment fears that if this court entertains Almutairi’s
petition for review while the Board’s remand to the IJ to
grant a new period of voluntary departure is pending,
Almutairi could potentially avoid having to make that
choice. In other words, the government suggests, he
would gain the benefit of a petition for review (and, if
successful, the chance to remain in the United States), yet
still have the option of voluntary departure upon
its reinstatement by the IJ. Full adjudication of the volun-
tary departure option is necessary, the government con-
cludes, in order to permit (or force) Almutairi to
choose between adhering to the terms of the voluntary
No. 12-2734 7
departure agreement and seeking judicial review of the
Board’s order.
Almutairi responds that the Board’s decision is final
with respect to his claims for asylum and withholding of
removal. He notes that the law gives only 30 days for
an aggrieved person to file a petition for review. See 8
U.S.C. § 1252(b)(1). His concern, broadly speaking, is
that his substantive claims do not get lost in the shuffle
between the BIA and the IJ; he fears that the Board’s
June 28, 2012, decision would be regarded as final for
purposes of his substantive claims, noting that the
Board’s decision concludes as follows:
For these reasons, we will dismiss [Almutairi’s] appeal,
and remand the record solely for the Immigration
Judge to grant a new period of voluntary departure
with the requisite advisals.
(Emphasis added.) This limited remand, Almutairi
argues, does not give him the right to ask the IJ to con-
sider new claims or evidence on remand, contrary to the
representation in the government’s motion. Hence, he
concludes, his petition for review from the June 28
decision was properly filed and can be adjudicated.
The government replies that Almutairi would not lose
his right to obtain judicial review of the Board’s decisions
on his asylum and withholding claims, because he
retains the right to file a timely petition for review from
the IJ’s new removal order, once it becomes final.
Although the INA permits a petition for review only
from a final order of removal, see 8 U.S.C. § 1252(a)(1), it
defines finality as either a determination by the Board
8 No. 12-2734
affirming a removal order (still called in that part of the
statute an order of deportation) or “the expiration of the
period in which the alien is permitted to seek review of
such order by the Board of Immigration Appeals.” 8 U.S.C.
§ 1101(a)(47)(B). It follows, the government reasons, that
it is not strictly necessary for the alien to return to the
Board once the voluntary departure issue has been
settled. We decided to take this motion with the case.
One final complication has emerged with respect to the
propriety of taking up this petition for review now. After
further briefing, the government now tells us that on
November 27, 2012, the IJ resolved the case with the
issuance of an order reinstating the privilege of voluntary
departure. The government apparently learned about
the order from the agency’s toll-free number, which
offers a recorded message with updates about particular
cases. As a result, the government now withdraws its
request that this court dismiss without prejudice.
Almutairi has not contested the government’s new in-
formation in his brief, which was submitted in
January 2013. Thus, even though we would prefer a
better record on this critical point, we proceed on this
basis. Since voluntary departure was ordered on
November 27, 2012, Almutairi’s 60-day window has
expired and now the only remaining avenue for relief is
his existing petition for review.
What remains unclear is the moment at which this
court’s jurisdiction vested: July 25, 2012, when Almutairi
filed his petition for review, or January 26, 2013, 60 days
after the time for appealing the IJ’s final order to the
No. 12-2734 9
BIA? This may not make much practical difference for
Almutairi, but it is a recurring question in immigration
cases, and so we think it worthwhile to address it.
In its motion (which events have overtaken), the gov-
ernment argued that this court should follow the lead
of three of our sister circuits and dismiss Almutairi’s
petition for review without prejudice on the ground
that “prudential” considerations favored declining juris-
diction until the IJ adjudicated voluntary departure
on remand. See Li v. Holder, 666 F.3d 147, 151-54 (4th
Cir. 2011) (for prudential reasons, dismissing petition
without prejudice); Giraldo v. Holder, 654 F.3d 609, 616-18
(6th Cir. 2011) (same); Hakim v. Holder, 611 F.3d 73,
79 (1st Cir. 2010) (same). In those three cases, on compara-
ble facts, the government had asserted that there was
no final, reviewable decision for the court of appeals
because of the Board’s remand. In Li, the Fourth Circuit
held that it had jurisdiction over the Board’s order, but
that as a matter of prudence it would decline to
exercise that jurisdiction until the voluntary departure
matter was resolved. The Sixth Circuit did the same
thing in Giraldo, see 654 F.3d at 612 (citing cases), as did
the First Circuit in Hakim, see 611 F.3d at 77-79 (as-
suming “arguendo” that the court had jurisdiction and
declining to exercise it for prudential reasons).
In our view, because the timely filing of a petition for
review has jurisdictional significance, and a petition may
be filed only from a final order disposing of a case, we
cannot simply assume that jurisdiction exists. Either an
order resolving everything except voluntary departure
10 No. 12-2734
is final and ripe for a petition for review, or it is not. If it
is final, then the alien not only can, but must, file the
petition for review within 30 days of the Board’s deci-
sion. At that point, if either party wants to ask the court of
appeals to stay its proceedings pending the ultimate
resolution of the voluntary departure request, it is free
to do so. Cf. F ED. R. A PP. P. 8(a) (stays in appeals from
the district courts). If, on the other hand, the disposition
is not final until the issue of voluntary departure is re-
solved, then the alien should have no obligation to file
a petition for review until the IJ has resolved that
question, whether in the first instance or on remand from
the Board. At that point, a petition for review filed
within 30 days of either the Board’s final order (if the
alien files a new petition for review with the Board) or
of the expiration of time to seek review would be enough
to bring up all issues and interlocutory rulings. Compare
Kunik v. Racine Cnty., 106 F.3d 168, 172 (7th Cir. 1997)
(appeal from final judgment brings up all interlocutory
orders that preceded it).
The choice between these two possibilities is a difficult
one. It depends in part on how one should understand
an order permitting voluntary departure: as a form of
substantive relief for the alien, or as a discretionary
administrative ruling that does not affect the alien’s
substantive rights. Perhaps the strongest point in favor
of the former reading is the fact that substantive rights
do accompany an order of voluntary departure. Not
only does the alien gain the option of departing to any
destination of her choice, with some control over the
time of departure, but she also avoids an order of
No. 12-2734 11
removal and the bars to readmission to the United States
that would apply if she were instead removed by the
government. See, e.g., Dada v. Mukasey, 554 U.S. 1, 11-12
(2008); Azarte v. Ashcroft, 394 F.3d 1278, 1284 (9th Cir.
2005); see also 8 U.S.C. § 1182(a)(9)(A) (discussing rules
for admission of aliens previously removed). Aliens who
are granted voluntary departure but fail to leave within
the permitted time “generally bec[o]me ineligible for
the immigration benefits of voluntary departure, suspen-
sion of deportation, adjustment of status, change of non-
immigrant classification, and registry, for a period of
five years following the scheduled departure date or the
date of illegal reentry, if any.” David S. Rubenstein,
Restoring the Quid Pro Quo of Voluntary Departure, 44
Harv. J. on Legis. 1, 11 (2007). On the other hand, the
decision whether to grant voluntary departure lies in the
discretion of the Attorney General or the Secretary of
Homeland Security and is not reviewable in the court of
appeals. See 8 U.S.C. § 1229c(f); see also Bachynskyy v.
Holder, 668 F.3d 412, 416 (7th Cir. 2011). Without any
possibility of judicial review, voluntary departure looks
like an internal decision for the immigration authorities
that at most has collateral consequences for the alien. If
the latter is true, then the BIA’s or the IJ’s failure to
issue a final decision on voluntary departure might not
be enough to defeat the finality that is needed to sup-
port a petition for review.
The immigration statutes do not shed much light on
the question which of these two alternatives is correct,
but they may help a little. In ordinary civil litigation, a
case is not final until the district court has disposed
12 No. 12-2734
not only of all theories of recovery, but also of all theories
of relief. See F ED . R. C IV. P. 54(b). Yet that rule may not
carry over to the immigration context. The INA defines an
order of deportation as “the order of the [authorized
official] concluding that the alien is deportable or
ordering deportation.” 8 U.S.C. § 1101(a)(47)(A). Substitut-
ing current terminology, we see that the “final” order
might do no more than establish that the alien is remov-
able; it need not go further and order immediate re-
moval. The fact that the availability of voluntary departure
may be up in the air has no effect at all on the removability
of the alien—it affects only the manner of her exit.
Our sister circuits have all found that an order from the
BIA resolving everything except an issue relating to
voluntary departure satisfies the finality rules of the
INA, 8 U.S.C. § 1252(a)(1). See Li, supra (4th Circuit);
Giraldo, supra (6th Circuit); Hakim, supra (1st Circuit). We
are not inclined to create a circuit split on that point,
given how close the question is. We thus align ourselves
with our colleagues on the finality point: Almutairi’s
petition for review was therefore filed at the appropriate
time when he submitted it within 30 days of the
Board’s June 28, 2012, decision. We are less comfortable,
however, with the notion that a court ought to dismiss
a properly filed petition without prejudice and invite a
later filing after the voluntary departure terms are
sorted out. Why would such a filing be timely? Can we be
sure that the government would not argue that the
alien waived the right to judicial review by not filing her
petition after the merits ruling? In our view, the proper
approach is for the alien to file her petition for review
No. 12-2734 13
within 30 days of a Board order resolving everything
except voluntary departure, and then for this court to
retain jurisdiction but to stay proceedings on the
petition until voluntary departure has been resolved
one way or the other. That way, there is no chance that
the alien will be deprived of her right to obtain review
of the Board’s decision, and at the same time the risk
that the government would like to avoid (allowing the
alien to obtain full judicial review while at the same time
enjoying the benefits of voluntary departure) will be
avoided. As a practical matter, that is exactly what hap-
pened in Almutairi’s case: he filed his petition for
review; the case remained on this court’s docket but
no action was taken on it; and the IJ then finished his
work on the voluntary departure question. Thus the case
is ready for disposition, and we can turn to the merits.
III
Almutairi first argues that the Board erred by affirming
the IJ’s finding that his asylum claim was untimely.
He contends that the IJ’s ruling of untimeliness is inter-
nally inconsistent because the IJ acknowledged his past
persecution. This acknowledgement, Almutairi urges,
constitutes a finding of asylum eligibility and is therefore
incompatible with the IJ’s determination that his asylum
application was untimely. But the IJ’s discussion of past
persecution is perfectly consistent with a determination
that Almutairi’s asylum application was untimely. Past
persecution is not relevant only to asylum; it is also
pertinent to withholding of removal, which does not
14 No. 12-2734
have a statutory limitations period. See 8 C.F.R. § 1208.4(a).
In any case, we lack jurisdiction to review the Board’s
determination that Almutairi failed to meet any of the
exceptions to the rules governing the time within which
an asylum application must be filed, because that con-
clusion did not turn on any question of law or constitu-
tional claim. See 8 U.S.C. § 1158(a)(2)(D), (a)(3); Abraham v.
Holder, 647 F.3d 626, 632 (7th Cir. 2011); Viracacha v.
Mukasey, 518 F.3d 511, 514-16 (7th Cir. 2008). And
although Almutairi argues that he deserves human-
itarian asylum, this relief is barred by the same limita-
tions period. See 8 C.F.R. § 1208.13(b)(1)(iii), (c). Accord-
ingly, we must dismiss Almutairi’s petition to review
the Board’s decision that his asylum application
is untimely for want of jurisdiction.
Almutairi next contests the Board’s denial of withholding
of removal, a matter over which this court does have
jurisdiction. To qualify for withholding of removal based
on his membership in a particular social group, Almutairi
had to demonstrate a clear probability that, if removed,
his life or freedom would be threatened on account of
his membership in the group. See 8 U.S.C. § 1231(b)(3)(A);
8 C.F.R. § 1208.16(b); Liu v. Holder, 692 F.3d 848, 852 (7th
Cir. 2012). The threat must be attributable either to the
government or to a nongovernmental entity that the
government is unable or unwilling to control. Jonaitiene v.
Holder, 660 F.3d 267, 270-71 (7th Cir. 2011); Tapiero de
Orejuela v. Gonzales, 423 F.3d 666, 672 (7th Cir. 2005).
We review the Board’s evaluation of these issues deferen-
tially. Liu, 692 F.3d at 852.
No. 12-2734 15
Almutairi argues at length that the four threatening
phone calls he received over 20 years ago from an unidenti-
fied caller qualify as persecution, and he also challenges
the IJ’s determination that he failed to establish a cogniza-
ble social group. Even if he is correct on those points,
however, he cannot succeed. That is because Almutairi
does not seriously challenge one of the main bases for
the Board’s rejection of his withholding petition: his
failure to show that he would now be persecuted by the
Kuwaiti government or by a group that the govern-
ment was unable or unwilling to control. See Jonaitiene,
660 F.3d at 270-71 (explaining that, for purposes of
refugee status, persecution “does not encompass purely
private actions”). Almutairi gave the IJ no reason to
attribute the calls to the Kuwaiti government, and
because he never mentioned the threatening calls to
anyone in the Kuwaiti police or military, he could only
speculate that the Kuwaiti government might not protect
him if he did seek its help. Because he does not even
address this issue on appeal, he has fallen far short of
showing that the evidence compels a different result.
See Liu, 692 F.3d at 852. Under the circumstances,
despite the horrific treatment that Almutairi endured, the
Board’s conclusion that he is not entitled to withholding
of removal cannot be disturbed.
Almutairi’s petition for review is D ISMISSED for want of
jurisdiction with respect to his claim for asylum and
D ENIED with respect to his request for withholding
of removal.
7-12-13