Tibakweitira v. Wilkinson
986 F.3d 905
| 5th Cir. | 2021Background
- Edgar Tibakweitira, a Tanzanian national, entered the U.S. in 1992 and later ran a real-estate business in Washington, D.C.
- In 2015 he pleaded guilty to conspiracy to commit wire fraud and aggravated identity theft; sentenced to 57 months and ordered to pay about $2.5 million restitution.
- DHS ordered him removed as an aggravated felon; he applied for withholding of removal and protection under the Convention Against Torture (CAT).
- The Immigration Judge (IJ) denied relief; the Board of Immigration Appeals (BIA) affirmed and a single BIA member denied his motion to reopen/reconsider and his request for three-member review.
- Tibakweitira appealed to the Fifth Circuit raising: (1) contest to the “particularly serious crime” finding barring withholding, (2) CAT relief denial, (3) denial of motion to reopen, (4) due-process and Convention Against Transnational Organized Crime claims, and (5) denial of three-member review.
Issues
| Issue | Tibakweitira's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether his fraud conviction is a "particularly serious crime" making him ineligible for withholding | Argued IJ/BIA misweighed facts (sentence length, restitution) and failed to credit remorse/cooperation and nonviolence | §1252(a)(2)(C) bars judicial review of factual challenges to removal; offense is an aggravated felony | Dismissed for lack of jurisdiction |
| Whether CAT relief should have been granted | Claimed past recruitment by TISS, threats, membership in opposition party, and corroborating documents show likelihood of torture and state acquiescence | IJ made adverse credibility findings; evidence did not show likelihood of torture or government acquiescence | Denied; substantial evidence supports IJ/BIA decision |
| Whether the BIA abused discretion in denying motion to reopen based on new evidence | Submitted new letters (attorney and prison mail custodian) and a news article showing threats and repression that would corroborate CAT claim | Evidence was either not shown to be previously unavailable or not materially probative of likelihood of torture by state actors | Denied; BIA did not abuse discretion |
| Whether due-process and Convention claims were reviewable and whether three-member review was required | Argued hearing restrictions and alleged state-created danger; sought three-member review for alleged clearly erroneous factual findings | Claims were not raised to the BIA (unexhausted); referral to three-member panel is discretionary and not judicially reviewable | Dismissed for lack of jurisdiction as unexhausted; three-member non-referral not reviewable |
Key Cases Cited
- Zhu v. Gonzales, 493 F.3d 588 (5th Cir. 2007) (review standards for BIA and IJ decisions)
- Fuentes-Pena v. Barr, 917 F.3d 827 (5th Cir. 2019) (standard of review for constitutional and legal questions)
- Gomez-Palacios v. Holder, 560 F.3d 354 (5th Cir. 2009) (abuse-of-discretion review for motions to reopen)
- Nasrallah v. Barr, 140 S. Ct. 1683 (2020) (distinction between review of removal orders and CAT orders)
- Tamara-Gomez v. Gonzales, 447 F.3d 343 (5th Cir. 2006) (elements and burden for CAT relief)
- Iruegas-Valdez v. Yates, 846 F.3d 806 (5th Cir. 2017) (acquiescence/willful blindness standard for state action in CAT claims)
- Dada v. Mukasey, 554 U.S. 1 (2008) (motion to reopen must be based on newly discovered evidence or changed circumstances)
- Cantu-Delgadillo v. Holder, 584 F.3d 682 (5th Cir. 2009) (BIA discretion on three-member panel referral is not judicially reviewable)
- Wang v. Ashcroft, 260 F.3d 448 (5th Cir. 2001) (exhaustion requirement for judicial review of removal orders)
- Omari v. Holder, 562 F.3d 314 (5th Cir. 2009) (what constitutes an available administrative remedy and exhaustion rules)