RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 09a0074p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

HAMDI AL KHALILI,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney General of the

United States,

Respondent.

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No. 08-3296

On Petition for Review of a Decision from the

Board of Immigration Appeals.

No. A96 418 226.

Argued: January 15, 2009

Decided and Filed: February 27, 2009 

Before: KENNEDY, COLE, and GILMAN, Circuit Judges.

_________________

COUNSEL

ARGUED: Charles S. Owen, OWEN & ASSOCIATES, Southfield, Michigan, for

Petitioner. John W. Blakeley, UNITED STATES DEPARTMENT OF JUSTICE,

Washington, D.C., for Respondent. ON BRIEF: Charles S. Owen, OWEN &

ASSOCIATES, Southfield, Michigan, for Petitioner. John W. Blakeley, Aviva L. Poczter,

UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

_________________

OPINION

_________________

COLE, Circuit Judge. Petitioner Hamdi Al Khalili appeals the order by the Board

of Immigration Appeals (“BIA”) affirming the immigration judge’s final order of removal

to Jordan. The immigration judge rendered her decision on June 23, 2006, denying Khalili’s

application because he failed to establish his membership in a particular social group and

because he did not show that the Jordanian government was unwilling or unable to control

1
No. 08-3296 Khalili v. Holder Page 2

the non-governmental actors who he alleged would seek to harm him. Khalili appealed to

the BIA. The BIA affirmed, concluding that Khalili had failed to demonstrate the inability

or unwillingness of his government to protect him. 

Khalili now petitions for review of the BIA’s decision. He argues that the BIA’s

determination that he did not belong to a particular social group, such that he would face

persecution if he were forced to return to Jordan, was arbitrary and capricious. He also

argues that the BIA erred in finding that he had not established a prima facie case of

eligibility for asylum based on its reading of Jordan’s official stance on honor killings. 

The Government argues that this Court lacks jurisdiction to consider Khalili’s claim

because he failed to exhaust his administrative remedies. In the alternative, the Government

argues that substantial evidence supports the BIA’s decision.

For the reasons set forth below, we find that BIA actions exhausted Khalili’s

administrative remedies by sua sponte raising and ruling on the immigration judge’s

determination regarding the Jordanian government. Thus, this Court has jurisdiction to

consider Khalili’s appeal of that issue. However, this Court also finds that substantial

evidence supports the BIA’s determination that Khalili failed to show that the Jordanian

government was unable or unwilling to protect him and his family. We therefore DENY

Khalili’s petition for review.

I. BACKGROUND

A. Factual background

Khalili, a citizen and native of Jordan, met his current wife, Deena, in Jordan in

1986. Despite resistance from her family, they married in August 1992. Before and after

the wedding, Deena’s family members showed their disapproval of the relationship by

beating Deena and by making false accusations against Khalili. Based, in part, on fear for

himself and his family, Khalili moved with his wife and two children to the United States in

September 1999.

While living in the United States, Khalili and Deena got into a disagreement relating

to Deena’s sister. Deena’s family became involved in the dispute, which ultimately led to

the couple’s divorce in August 2000. Though Khalili and Deena were both living in
No. 08-3296 Khalili v. Holder Page 3

Michigan at the time, the divorce was obtained under Jordanian law. Thereafter, Deena and

the children moved back to Jordan, where she alleges that her family mistreated her because

of the divorce.

Following the divorce, Khalili married his second wife in 2001. After a few months,

Khalili’s second wife took a trip to New Jersey, and he never saw her again. He

subsequently obtained a second divorce.

Meanwhile, as a result of the harsh treatment they received after returning to Jordan,

Deena and the children moved back to the United States in June 2003. Khalili renewed

contact with her, and they had a third child in May 2004. They remarried in May 2005. 

B. Procedural background

Khalili was legally admitted to the United States as a nonimmigrant visitor on

September 19, 1999. The Immigration and Naturalization Service, now part of the United

States Department of Homeland Security, initiated removal proceedings against him by filing

a Notice to Appear, charging him with removability under section 237(a)(1)(B) of the

Immigration and Nationality Act (the “INA”), 8 U.S.C. § 1227(a)(1)(B), as an alien who

remained in the United States for a time longer than permitted.

At the removal hearing on October 1, 2004, Khalili conceded removability, but filed

an application for withholding of removal under section 241(b)(3). Alternatively, he

requested voluntary departure under section 240(B).

Khalili’s section 241(b)(3) application for withholding of removal claimed

persecution on account of his religion and membership in a particular social group. He

testified in support of that claim in removal hearings on June 19, 2006 and June 23, 2006.

Khalili and Deena testified that Deena’s family had previously attacked them and their

children and had also threatened them with future harm. Khalili testified he feared that, if

they returned to Jordan, he or his family might become victims of honor killings—the

murder of a family or clan member due to the belief that the individual has brought dishonor

on the family. Finally, Khalili testified that he did not believe the Jordanian government

could protect him because “usually they don’t interfere [with] honor things.” (Joint

Appendix 118.) In support of his arguments, Khalili offered marriage and divorce
No. 08-3296 Khalili v. Holder Page 4

certificates as well as two 2003 British Broadcast Corporation news articles related to honor

killings in Jordan. In response, the Government submitted the 2005 State Department

Country Report on Human Rights for Jordan.

On June 23, 2006, the immigration judge denied Khalili’s application for

withholding of removal. Despite finding Khalili’s testimony generally consistent and

credible, the immigration judge determined that Khalili was ineligible for withholding of

removal under the INA because he was unable to establish that he had been or would be

subject to persecution on account of any of the five statutorily enumerated grounds. Noting

that Khalili had claimed protection based on religion and on membership in a social

group—a group the immigration judge defined as males subject to honor killings—the

immigration judge found that Khalili’s ability to establish that he fit within a particular

social group was undermined by the lack of evidence showing that the cultural practice of

honor killing is extended to men. The immigration judge also found that Khalili had not

demonstrated that the Jordanian government would be unwilling or unable to protect him.

Finally, the immigration judge denied Khalili’s request for voluntary departure.

Khalili appealed to the BIA. The BIA denied that appeal on February 21, 2008,

stating that Khalili’s Notice of Appeal and briefs did not challenge the immigration judge’s

finding that he failed to show that the government of Jordan was unwilling or unable to

protect him. Despite Khalili’s failure to challenge that issue, the BIA nonetheless ruled on

it. The BIA relied on evidence showing that the Jordanian government prosecutes those

accused of honor killings. The BIA also determined that Khalili failed to present any

evidence that men, as opposed to women, were the subjects of honor killings. The BIA

reasoned that Khalili’s failure to show the inability or unwillingness of his government to

protect him was a sufficient basis for denying his application for withholding of removal, and

the BIA affirmed the immigration judge’s decision.
No. 08-3296 Khalili v. Holder Page 5

II. LAW AND ANALYSIS

A. Jurisdiction

1. Failure to present reviewable issues to the BIA

This Court generally has jurisdiction to consider a timely petition for review of a

BIA final order of removal under INA section 242, 8 U.S.C. § 1252(a)(1), as amended by

the REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231, 310-11 (2005). However,

before raising an immigration issue in federal court, a petitioner must normally present all

reviewable issues to the BIA. Sterkaj v. Gonzalez, 439 F.3d 273, 279 (6th Cir. 2006).

Specifically, 8 C.F.R. section 1003.3(b), the “Statement of basis of appeal” regulation,

requires:

The party taking the appeal must identify the reasons for the appeal in the

Notice of Appeal [to the BIA] (Form EOIR-26 or Form EOIR-29) or in any

attachments thereto, in order to avoid summary dismissal pursuant to

§ 1003.1(d)(2)(i). The statement must specifically identify the findings of

fact, the conclusions of law, or both, that are being challenged. If a question

of law is presented, supporting authority must be cited. If the dispute is over

the findings of fact, the specific facts contested must be identified. Where

the appeal concerns discretionary relief, the appellant must state whether the

alleged error relates to statutory grounds of eligibility or to the exercise of

discretion and must identify the specific factual and legal finding or findings

that are being challenged.

Moreover, this Court has explained that the issue must be reasonably developed in the

petitioner’s brief to the BIA. Hasan v. Ashcroft, 397 F.3d 417, 420 (6th Cir. 2005). If the

petitioner fails to exhaust an issue before the BIA, that issue is normally deemed to be

waived. Id. at 419-20; see also Ramani v. Ashcroft, 378 F.3d 554, 560 (6th Cir. 2004).

The Government argues that this Court should dismiss Khalili’s petition for lack of

jurisdiction because he did not appeal to the BIA the immigration judge’s determination that

he failed to show that the government of Jordan would be unwilling or unable to protect him.

Review of Khalili’s notice of appeal and his supporting brief reveals that he did not raise any

challenges to the immigration judge’s finding regarding the Jordanian government. 
No. 08-3296 Khalili v. Holder Page 6

2. Sua sponte consideration by the BIA

Khalili’s failure to challenge the immigration judge’s determination regarding the

inability or unwillingness of the government of Jordan to protect him would ordinarily end

our inquiry because this Court is without jurisdiction to consider unexhausted claims. See

INA section 242(d)(1), 8 U.S.C. § 1252(d)(1); see also Perkovic v. INS, 33 F.3d 615, 619

(6th Cir. 1994). Here, however, the BIA sua sponte raised and ruled on the merits of

Khalili’s claim that the government of Jordan was unable to protect him. Therefore, we must

now address the jurisdictional effect of the BIA’s sua sponte consideration of the merits of

this issue.

As noted recently by our sister circuit in Bin Lin v. Attorney Gen., 543 F.3d 114, 123

(3d Cir. 2008), several circuits have considered the issue of whether the BIA’s decision to

consider an issue not properly presented to it provides the appellate court with jurisdiction.

Only the Eleventh Circuit finds a complete lack of jurisdiction in a case similar to this one.

See Amaya-Artunduage v. Attorney Gen., 463 F.3d 1247, 1250 (11th Cir. 2006) (per curiam)

(finding that the court lacked “jurisdiction over a claim when an alien, without excuse or

exception, fail[ed] to exhaust that claim,” even when “the BIA nonetheless consider[ed] the

underlying issue sua sponte”). On the other hand, the majority of circuits have held that

where the BIA could have summarily dismissed for failure to raise an issue (or raise with

specificity) but nonetheless reached the merits or affirmed the merits of the immigration

judge’s decision, the exhaustion requirement is waived and the appellate court has

jurisdiction. See Zine v. Mukasey, 517 F.3d 535, 540-41 (8th Cir. 2008) (finding appellate

jurisdiction where the BIA decided to reach the merits of the issue); Pasha v. Gonzales, 433

F.3d 530, 532-33 (7th Cir. 2005) (explaining that where the BIA could have summarily

dismissed an appeal for failure to raise an issue with specificity but instead affirmed on the

merits, the exhaustion requirement was waived); see also Abebe v. Gonzales, 432 F.3d 1037,

1041 (9th Cir. 2005) (en banc) (“When the BIA has ignored a procedural defect and elected

to consider an issue on its substantive merits, we cannot then decline to consider the issue

based upon this procedural defect.”). 

In Sidabutar v. Gonzales, 503 F.3d 1116 (10th Cir. 2007), the Tenth Circuit provided

analysis supporting appellate jurisdiction, reasoning that:
No. 08-3296 Khalili v. Holder Page 7

[W]hile § 1252(d)(1) requires that an alien exhaust “all

administrative remedies,” the BIA has the authority to determine its

agency’s administrative procedures. If the BIA deems an issue sufficiently

presented to consider it on the merits, such action by the BIA exhausts the

issue as far as the agency is concerned and that is all § 1252(d)(1) requires

to confer our jurisdiction. Where the BIA determines an issue

administratively-ripe to warrant its appellate review, we will not

second-guess that determination. Indeed, it is a touchstone of administrative

law that “the formulation of procedures [is] basically to be left within the

discretion of the agencies to which Congress had confided the responsibility

for substantive judgments.” Vermont Yankee Nuclear Power Corp. v.

Natural Resources Defense Council, Inc., 435 U.S. 519, 524 (1978).

Administrative agencies “should be free to fashion their own rules of

procedure and to pursue methods of inquiry capable of permitting them to

discharge their multitudinous duties.” FCC v. Pottsville Broadcasting Co.,

309 U.S. 134, 143 (1940). Cf. Weinberger v. Salfi, 422 U.S. 749, 767

(1975) (holding that an agency may waive internal exhaustion

requirements).

. . . Under 8 C.F.R. § 1003.3(b) (“specificity requirement”), an alien

taking an appeal of an [immigration judge] decision “must specifically

identify the findings of fact, the conclusions of law, or both, that are being

challenged.” Nothing in the agency’s regulations preclude the BIA from

waiving this requirement. Indeed, the BIA has discretionary authority to

dismiss (and conversely, accept) appeals lacking in specificity. See 8 C.F.R.

§ 1003.1(d)(2)(i) (“A single Board member or panel may summarily dismiss

any appeal or portion of any appeal in any case in which . . . [t]he party

concerned fails to specify the reasons for the appeal . . . .”) (emphasis

added). Thus, the BIA’s waiver of the specificity requirement in this case

does not detract from the decision constituting the BIA’s final order on the

issues, 8 C.F.R. § 1003.1(d)(7) and we retain jurisdiction over that final

order, 8 U.S.C. § 1252(a)(1).

503 F.3d at 1119-20 (citations omitted).

This Court’s decision in Hassan v. Gonzales, 403 F.3d 429, 433 (6th Cir. 2005), also

supports a finding of jurisdiction. There, we determined that in cases in which the BIA

summarily affirms the immigration judge’s decision without further analysis, an alien’s

administrative remedies are exhausted, giving us jurisdiction to entertain a petition for

review. Id. We reasoned that by affirming without opinion under section 1003.1(e)(4),

rather than summarily dismissing the case under section 1003.1(d)(2)(i)(A), the BIA

determined the petitioning alien had satisfied the specificity requirement. Id.
No. 08-3296 Khalili v. Holder Page 8

We must now decide whether appellate jurisdiction extends to the circumstances at

hand. The Third Circuit, following the Tenth Circuit, provides support for such an

application:

Holding that the BIA waived its specificity requirement does not run counter

to the purposes underlying the exhaustion doctrine. The Supreme Court has

explained that “[e]xhaustion is generally required as a matter of preventing

premature interference with agency processes, . . . [giving the agency] an

opportunity to correct its own errors, to afford the parties and the courts the

benefit of its experience and expertise, and to compile a record which is

adequate for judicial review.” [Weinberger v.] Salfi, 422 U.S. [749, 765

(1975).] While these are important concerns, “[w]here the BIA has issued

a decision considering the merits of an issue, even sua sponte, these interests

have been fulfilled.” Sidabutar, 503 F.3d at 1121. The BIA has already had

an opportunity to apply its experience and expertise without judicial

interference. So too, the fact that the BIA has addressed the issue

independently from the [immigration judge] ensures that the record is

adequate for our review. Indeed, the Sidabutar court expressly limited the

application of this rule to cases in which the BIA “issues a full explanatory

opinion or a discernible substantive discussion on the merits over matters not

presented by the alien,” distinguishing cases where “the BIA summarily

affirms the [immigration judge] decision in toto without further analysis of

the issue.” Id. at 1122 (citing 8 C.F.R. § 1003.1(e)(4)). 

Bin Lin, 543 F.3d at 125. Stated differently, the Third Circuit adopted the position that

appellate jurisdiction is even more appropriate in cases in which the BIA has sua sponte

reached the merits of an issue, than in cases in which the BIA has summarily affirmed the

immigration judge decision.

Therefore, we follow the majority of circuit courts in finding appellate jurisdiction

to review issues raised sua sponte by the BIA. In such cases, the BIA’s action waives that

issue’s exhaustion requirements. Because the BIA waived the exhaustion requirement here

and addressed the merits of the issue of the immigration judge’s determination on the

government of Jordan, we have jurisdiction to consider Khalili’s claim.

B. Standard of review

Where the BIA reviews the immigration judge’s decision and issues a separate

opinion, rather than summarily affirming the immigration judge’s decision, we review the

BIA’s decision as the final agency determination. Morgan v. Keisler, 507 F.3d 1053, 1057

(6th Cir. 2007). To the extent the BIA adopted the immigration judge’s reasoning, however,
No. 08-3296 Khalili v. Holder Page 9

this Court also reviews the immigration judge’s decision. See Patel v. Gonzales, 470 F.3d

216, 218 (6th Cir. 2006). Questions of law are reviewed de novo, but substantial deference

is given to the BIA’s interpretation of the INA and accompanying regulations. Morgan, 507

F.3d at 1057 (citing Sad v. INS, 246 F.2d 811, 814 (6th Cir. 2001)). “The BIA’s

interpretation of the statute and regulations will be upheld unless the interpretation is

‘arbitrary, capricious, or manifestly contrary to the statute.’” Id. (quoting Sad, 246 F.2d at

815).

This Court reviews both the immigration judge’s and the BIA’s factual findings

under the substantial-evidence standard. Hamida v. Gonzales, 478 F.3d 734, 736 (6th Cir.

2007). We cannot reverse such findings simply because we would have decided them

differently. Gishta v. Gonzales, 404 F.3d 972, 978 (6th Cir. 2005). “These findings ‘are

conclusive unless any reasonable adjudicator would be compelled to conclude to the

contrary.’” Id. (quoting 8 U.S.C. § 1252(b)(4)(B)).

C. Applicable law

Khalili requests withholding of removal under INA section 241(b)(3). Withholding

of removal is not discretionary, but rather is mandatory if the alien establishes that his “life

or freedom would be threatened in the proposed country of removal on account of race,

religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C.

§ 1231(b)(3)(a); Pilica v. Ashcroft, 388 F.3d 941, 951 (6th Cir. 2004). However, an

applicant seeking withholding of removal faces “a more stringent burden than what is

required on a claim for asylum,” Liti v. Gonzales, 411 F.3d 631, 640 (6th Cir. 2005), and

must demonstrate “that there is a clear probability that he will be subject to persecution if

forced to return to the country of removal.” Singh v. Ashcroft, 398 F.3d 396, 401 (6th Cir.

2005) (quoting Pilica, 388 F.3d at 951). The BIA has defined persecution as “the infliction

of harm or suffering by the government, or persons the government is unwilling or unable

to control, to overcome a characteristic of the victim.” Pilica, 388 F.3d at 950 (quoting

Matter of Kasinga, 21 I&N Dec. 357, 365 (BIA 1996)). 
No. 08-3296 Khalili v. Holder Page 10

D. Substantial Evidence

Khalili’s claim for withholding of removal focuses on harm previously inflicted and

future threats of harm—including potential honor killings—by Deena’s family members, not

by any government. While Khalili does present evidence of honor killings in Jordan, there

simply is insufficient evidence to demonstrate that the government would be unwilling or

unable to control Deena’s family members and protect Khalili and his family from harm. See

Raza v. Gonzales, 484 F.3d 125, 129 (1st Cir. 2007) (“When an asylum claim focuses on

non-governmental conduct, its fate depends on some showing either that the alleged

persecutors are aligned with the government or that the government is unwilling or unable

to control them.”). To be sure, the State Department’s 2005 Country Report on Human

Rights Practices for Jordan, which is part of the record of this case, indicates that some

criminal defendants accused of honor crimes took advantage of loopholes in Jordan’s penal

code to receive significantly reduced sentences as compared to the usual penalties for the

underlying crime. However, the report also indicates that the Jordanian authorities

prosecuted all fifteen honor crimes reported in 2004. Moreover, the report indicates that the

police have placed potential victims in protective custody and that there is a “societal trend”

toward condemning honor crimes. Based on this record, we cannot conclude that a

reasonable adjudicator would be compelled to find that the Jordanian government was

unwilling or unable to protect Khalili. See El Ghorbi v. Mukasey, 281 F. App’x 514, 517

(6th Cir. 2008) (finding no eligibility for asylum or withholding of removal where petitioner

could not establish that he was harmed by persons the government was unwilling or unable

to control); Kere v. Gonzales, 252 F. App’x 708, 713 (6th Cir. 2007) (determining that no

persecution exists where family members abused applicant because there was no evidence

that the government was unable or unwilling to control the family members’ conduct and

protect the applicant).

III. CONCLUSION

We find that this Court has jurisdiction to consider Khalili’s appeal because the

BIA’s actions exhausted Khalili’s administrative remedies. However, we also find that

substantial evidence supports the BIA’s determination that Khalili failed to show that the
No. 08-3296 Khalili v. Holder Page 11

Jordanian government was unable or unwilling to protect him and his family. We therefore

DENY Khalili’s petition for review.