Hamad Almutairi v. Eric Holder, Jr.
722 F.3d 996
| 7th Cir. | 2013Background
- Almutairi, a Kuwaiti who served in the Kuwaiti Air Force and later joined a resistance, was captured and tortured by Iraqi soldiers in 1990; after release and Kuwait’s liberation he received threatening calls and harassment in 1991–92 and left Kuwait years later.
- He entered the U.S. in 1994 on a student visa, overstayed, and in 2007 applied for asylum, withholding of removal, and CAT protection; IJ found asylum untimely, recognized past persecution, denied withholding of removal and CAT, and granted voluntary departure with defective advisals.
- The BIA (June 28, 2012) affirmed the IJ on timeliness and withholding, remanded solely to cure the voluntary-departure advisals, and declined to decide cognizability of the proposed social group; it remand-warned that voluntary departure could not be reinstated administratively without proof of bond posting.
- Almutairi filed a petition for review within 30 days of the BIA decision; the IJ later reinstated voluntary departure (Nov. 27, 2012), and the court retained jurisdiction and proceeded to decision.
- The court held it lacked jurisdiction to review the BIA’s untimeliness ruling but had jurisdiction to review withholding of removal; on the merits, it denied withholding because Almutairi failed to show a clear probability of future persecution by the Kuwaiti government or a group the government cannot control.
Issues
| Issue | Almutairi's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether BIA’s denial of asylum as untimely is reviewable | Almutairi: BIA decision is final; timely petition filed; IJ’s acknowledgement of past persecution inconsistent with untimeliness ruling | Gov: petition premature while voluntary-departure remand pending; could refile after final removal order | Court: No jurisdiction to review BIA’s discretionary untimeliness determination; asylum claim dismissed for lack of jurisdiction |
| Whether petition for review was timely/finality when BIA remanded voluntary departure | Almutairi: BIA resolved merits; limited remand doesn’t defeat finality; timely filed within 30 days of BIA | Gov: prudentially dismissal pending voluntary-departure resolution; final order not yet ripe | Court: Aligns with circuits holding BIA order final despite voluntary-departure remand; petition timely; court retains jurisdiction but may stay pending voluntary departure |
| Whether Almutairi qualifies for withholding of removal (membership in particular social group) | Almutairi: persecuted and threatened due to perceived collaboration; is member of cognizable social group; police would not protect him | Gov: No evidence threats were government-based or that Kuwait would be unwilling/unable to control private actors | Court: Substantial evidence supports denial—Almutairi failed to show future persecution by government or inability of government to control persecutors; withholding denied |
| Whether humanitarian asylum or CAT relief available | Almutairi: past persecution and continuing fear justify humanitarian asylum/CAT relief | Gov: Humanitarian asylum barred by timeliness; CAT not shown because Iraqi forces no longer in Kuwait | Court: Humanitarian asylum barred by same timeliness rules (no jurisdiction to review); CAT claim waived or unsupported |
Key Cases Cited
- Li v. Holder, 666 F.3d 147 (4th Cir. 2011) (prudential treatment of petitions when voluntary departure remand pending)
- Giraldo v. Holder, 654 F.3d 609 (6th Cir. 2011) (declining to exercise jurisdiction pending voluntary-departure resolution)
- Hakim v. Holder, 611 F.3d 73 (1st Cir. 2010) (same)
- Abraham v. Holder, 647 F.3d 626 (7th Cir. 2011) (limits on review of asylum-timeliness determinations)
- Viracacha v. Mukasey, 518 F.3d 511 (7th Cir. 2008) (same)
- Liu v. Holder, 692 F.3d 848 (7th Cir. 2012) (standard of review for withholding of removal)
- Jonaitiene v. Holder, 660 F.3d 267 (7th Cir. 2011) (persecution must be by government or by private actors government cannot control)
- Dada v. Mukasey, 554 U.S. 1 (2008) (consequences and benefits of voluntary departure)