Biuma Claudine Malu v. U.S. Attorney General
764 F.3d 1282
| 11th Cir. | 2014Background
- Malu, a Congolese national, sought review of expedited removal based on a Georgia battery conviction deemed an aggravated felony.
- She argued she did not commit an aggravated felony and challenged withholding of removal and CAT protection.
- Notice of intent charged removability for aggravate felony; she responded only to withholding, not the aggravated-felony ground.
- Immigration judge denied relief; Board of Immigration Appeals (BIA) affirmed, adopting some findings but not all immigration judge conclusions.
- REAL ID Act requires exhausting all administrative remedies as of right; Malu did not exhaust the aggravated-felony issue.
- Court weighs exhaustion, jurisdiction, and reviewability of factual vs. legal questions for a criminal alien.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Exhaustion of aggravated-felony challenge | Malu: no available remedy; Sims applies to issue exhaustion. | Attorney General: obligation to exhaust all grounds prior to review; she failed. | No jurisdiction; failed to exhaust aggravated-felony ground. |
| Review of immigration judge findings not adopted by Board | Malu: immigration judge findings should be reviewed. | Board did not adopt those findings; not reviewable. | No review of unadopted factual findings. |
| Jurisdiction to review factual questions for criminal aliens | Malu: CAT/future-persecution factual issues reviewable. | REAL ID Act bars factual review for criminal aliens. | Lack jurisdiction over factual findings; only legal errors reviewable. |
| Withholding of removal and Convention Against Torture (CAT) standards | Malu: evidence supports future persecution and torture. | Record does not show certain persecution; Board properly denied. | Board committed no reversible legal error on withholding or CAT. |
| Social-group persecution theory (Congolese wives, sexual orientation) | Congolese wives as property constitute a social group; persecution likely. | No clear social group; future persecution not shown. | Board’s legal conclusions supported; no error in denial. |
Key Cases Cited
- Johnson v. United States, 559 U.S. 133 (2010) (abrogation of prior circuit precedent on aggravated felonies)
- Sims v. Apfel, 530 U.S. 103 (2000) (distinguishes exhaustion of remedies vs. exhaustion of issues)
- Valdiviez-Hernandez v. Holder, 739 F.3d 184 (5th Cir. 2013) (unexhausted issues of law; not jurisdictional reviewable)
- Eke v. Mukasey, 512 F.3d 372 (7th Cir. 2008) (review of classification of aggravated felon where appropriate)
- Fonseca-Sanchez v. Gonzales, 484 F.3d 439 (7th Cir. 2007) (exhaustion of REAL ID Act grounds; no jurisdiction for unexhausted issues)
- Escoto-Castillo v. Napolitano, 658 F.3d 864 (8th Cir. 2011) (review of unexhausted issues limited; jurisdictional stance)
- Al Najjar v. Ashcroft, 257 F.3d 1262 (11th Cir. 2001) (review limited to Board decision unless IJ adopted)
- Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341 (11th Cir. 2009) (presumption of future persecution; burden-shifting aspects)
- Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226 (11th Cir. 2005) (persecution standard; government vs. private actors)