Amir Shabo v. Jefferson B. Sessions, III
892 F.3d 237
6th Cir.2018Background
- Amir Francis Shabo, an Iraqi-born Chaldean Christian, was convicted in 1992 of an aggravated felony (possession with intent to deliver cocaine) and ordered removed in 1998; removal was delayed because Iraq was not issuing travel papers.
- Iraq began issuing travel papers in 2017, Shabo was detained, and he moved to reopen his 1998 BIA proceedings to seek protection under the Convention Against Torture (CAT).
- Shabo concedes deportability under current criminal-removal provisions (8 U.S.C. § 1227(a)(2)(A)(iii) and (B)(i)).
- The BIA denied reopening as untimely, held the changed-country-conditions exception does not apply to CAT motions (and alternatively found Shabo failed to make a prima facie showing of likely torture with government acquiescence), and declined sua sponte reopening.
- Shabo petitioned the Sixth Circuit to review the BIA’s denial of his motion to reopen and CAT claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court has jurisdiction to review BIA denial of reopening for a criminally removable alien | Shabo contends the court may review legal questions (e.g., applicability of changed-country-conditions exception to CAT claims) under § 1252(a)(2)(D) | Gov’t contends § 1252(a)(2)(C) strips courts of jurisdiction over review of final removal orders for aliens removable due to specified criminal convictions, limiting review to questions of law/constitutional claims only | Court held it lacks jurisdiction to review factual determinations for criminally removable aliens; only legal/constitutional issues are reviewable under § 1252(a)(2)(D) |
| Whether the changed-country-conditions exception to the 90-day filing limit applies to CAT motions to reopen | Shabo argues changed conditions in Iraq excuse untimeliness and trigger reopening for CAT relief | BIA concluded the exception does not apply to CAT motions; Gov’t defends BIA position | Court declined to decide the legal question (deeming it moot) because it could not review the dispositive factual finding; thus did not resolve applicability of the exception |
| Whether Shabo established a prima facie case that he is "more likely than not" to face torture with government acquiescence | Shabo argues his evidence shows likelihood of torture as a Christian returnee to Iraq | BIA and Gov’t argue the record lacks sufficient evidence to meet the CAT prima facie standard | Court held this is a factual determination outside its jurisdiction under § 1252(a)(2)(C) and thus unreviewable; dismissal follows |
| Whether the BIA’s alternative factual finding renders the legal question moot | Shabo urges review of the legal issue regardless | Gov’t asserts the factual failure makes the legal question irrelevant to outcome | Court held the factual failure at step two renders the changed-country-conditions legal question moot, so review is denied |
Key Cases Cited
- Pepaj v. Mukasey, 509 F.3d 725 (6th Cir.) (denial of motion to reopen raising country-condition facts was unreviewable under § 1252)
- Ventura-Reyes v. Lynch, 797 F.3d 348 (6th Cir. 2015) (scope of review for criminally removable aliens limited to legal and constitutional claims)
- Tran v. Gonzales, 447 F.3d 937 (6th Cir. 2006) (distinguishing legal questions from factual evidence-weighing in BIA review)
- Almuhtaseb v. Gonzales, 453 F.3d 743 (6th Cir. 2006) (changed-country-conditions determinations treated as factual)
- Arestov v. Holder, [citation="489 F. App'x 911"] (6th Cir.) (denial of motion to reopen involved factual determinations precluding review under § 1252)
- Stone v. INS, 514 U.S. 386 (1995) (time limits on petitions for review are jurisdictional)