2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-16-2012

Mahmoud Manaa-Atallah v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 11-2213

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______

No. 11-2213

______

MAHMOUD MANAA-ATALLAH,

Petitioner

v.

THE ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

______

On Petition for Review of the Board of Immigration Appeals

(Agency No. A035-741-972)

Immigration Judge: Honorable Walter Durling

______

Submitted Pursuant to Third Circuit LAR 34.1(a)

May 15, 2012

Before: SMITH, FISHER and GARTH, Circuit Judges.

(Filed: May 16, 2012)

______

OPINION OF THE COURT

______

GARTH, Circuit Judge.

Petitioner Mahmoud Manaa-Atallah was ordered removed from the United States. 

Upon an application for relief under the Convention Against Torture, he was granted 

deferral of removal. On appeal, the Board of Immigration Appeals denied Manaa-Atallah 
2

deferral of removal and ordered him removed to Jordan. Manaa-Atallah petitioned this 

court for review, alleging several errors by the Board of Immigration Appeals. We will 

deny Manaa-Atallah‟s petition for review.

I.

We write principally for the benefit of the parties and recite only the facts essential to 

our disposition.

Manaa-Atallah is a native and citizen of Jordan, having been born in the area 

known as the West Bank in 1959, while that region was part of Jordan. Manaa-Atallah 

entered the United States in 1978 as a lawful permanent resident on a Jordanian passport. 

Beginning in 1986, Manaa-Atallah was arrested and convicted for a series of offenses 

relating to various thefts, which culminated in a 1995 conviction for robbery, robbery of a 

motor vehicle, theft by unlawful taking, and receiving stolen property. On the basis of 

these convictions, Manaa-Atallah was sentenced to incarceration of three and a half to 

fifteen years. That sentence was later vacated by the Pennsylvania court that originally 

imposed it.1

In 1999, the Immigration and Naturalization Service issued Manaa-Atallah a 

Notice to Appear charging him with removability for the commission of two or more 

crimes involving moral turpitude under 8 U.S.C. § 1227(a)(2)(A)(ii). In 2006, the 

Department of Homeland Security (“DHS”) further charged Manaa-Atallah with 

 

1

The record does not disclose the basis on which Manaa-Atallah‟s sentence was vacated. 

His convictions, however, remain of record.
3

removability for the commission of an aggravated felony in violation of 8 U.S.C. § 

1227(a)(2)(A)(iii). The convictions for which Manaa-Atallah was charged with 

removability were all part of the 1995 conviction for multiple offenses.

During the course of removal proceedings, Manaa-Atallah claimed that he had 

never been convicted of aggravated felonies or crimes of moral turpitude because he had 

not been properly sentenced for his 1995 convictions.2 The Immigration Judge rejected 

this argument, and found that Manaa-Atallah was eligible for deferral of removal only 

under the Convention Against Torture (“CAT”). Manaa-Atallah thereafter filed an 

application to defer his removal along with a personal statement, seeking relief under 

CAT.

Manaa-Atallah testified in support of his CAT application, addressing his fears 

about returning to Israel or Jordan. Specifically, Manaa-Atallah claimed that he had sold 

his land in the West Bank to Israeli settlers in 1980. Manaa-Atallah claimed that after 

that sale, villagers in his home village threatened his family, and claimed that Hamas 

placed advertisements in a local newspaper condemning him and his family and placing a 

fatwa against him, directing that he should be killed. Manaa-Atallah further claimed that 

at least one of his relative‟s homes had been firebombed and subjected to gunfire.

On May 27, 2008, the IJ issued an oral decision granting Manaa-Atallah deferral 

of removal to Israel, the West Bank, and Jordan. The IJ restated that Manaa-Atallah was 

 

2

The record does not disclose any information concerning Manaa-Atallah‟s alleged 

“improper” sentencing.
4

an aggravated felon, but nevertheless concluded that he would be tortured if he were to 

return to the West Bank. DHS appealed the IJ‟s decision to the Board of Immigration 

Appeals (“BIA”).

On appeal to the BIA, Manaa-Atallah filed a response to DHS, but did not appeal 

the IJ‟s determination that he was an aggravated felon for immigration purposes. On 

November 28, 2008, the BIA granted DHS‟ appeal and denied CAT protection to ManaaAtallah. The BIA found that Manaa-Atallah had provided no evidence that he would be 

tortured if he were removed to Jordan. Further, relying on the lack of corroborating 

evidence, the BIA concluded that even if Manaa-Atallah was credible, he had not shown

that it was more likely than not that he would be tortured if he were returned to Israel, 

Jordan, or the West Bank. The BIA also held that the risk of torture by Hamas does not 

qualify for CAT protection because Israel, not Hamas, is the governing authority in the 

West Bank. The BIA remanded to the IJ to designate a country of removal.

On remand, Manaa-Atallah sought to have the removal proceedings reopened, 

claiming that he had additional relevant information. On June 22, 2010, the IJ granted 

the motion to reopen removal proceedings. Manaa-Atallah introduced various types of 

evidence purportedly establishing the threat that he would be tortured if he were removed

to the West Bank or Jordan. On November 8, 2010, the IJ issued a written decision 

granting Manaa-Atallah‟s application for deferral of removal under CAT. The DHS 

appealed this decision, and on April 27, 2011, the BIA sustained the appeal, finding that 

the IJ‟s determination that Manaa-Atallah had demonstrated a clear probability of torture 
5

was clearly erroneous.3 Inasmuch as the IJ had not designated a country of removal, the 

BIA instructed that Manaa-Atallah should be removed to Jordan. Manaa-Atallah 

petitioned this court for review.

II.

On appeal, Manaa-Atallah raises several claims. First, he contends that because 

the sentence for his 1995 convictions was vacated, those convictions cannot properly 

serve as the basis for his removability. Second, he contends that the BIA erroneously 

required him to satisfy an impermissibly high burden of proof to demonstrate his 

entitlement to relief under CAT. Finally, he contends that the BIA erred in its application 

of the “clearly erroneous” standard while reviewing the IJ‟s decision.

A.

Manaa-Atallah claims that we have jurisdiction over his petition for review 

pursuant to 8 U.S.C. § 1252. The government, however, contends that we lack proper 

jurisdiction to review most of Manaa-Atallah‟s claims. “Before we reach the merits of 

[Manaa-Atallah‟s] petition, we must first address the government‟s argument that we lack 

jurisdiction over [some] portion[s] of [his] petition.” Pareja v. Attorney General, 615 

F.3d 180, 186 (3d Cir. 2010).

 

3 While that appeal was pending before the BIA, on March 24, 2011, ManaaAtallah filed a pro se petition for a writ of habeas corpus in the Eastern District of 

Pennsylvania. Although counsel did not advise us of this development, that petition was 

denied as moot on October 21, 2011.
6

Prior to seeking review in this court, an alien must “exhaust[] all administrative 

remedies available to the alien as of right.” 8 U.S.C. § 1252(d)(1). This court has 

previously recognized that such “issue exhaustion as required by § 1252(d)(1) is a 

jurisdictional rule.” Hoxha v. Holder, 559 F.3d 157, 159 n.3 (3d Cir. 2009). To properly 

exhaust administrative remedies, an alien must make “some effort, however insufficient, 

to place the Board on notice of a straightforward issue being raised on appeal.” Yan Lan 

Wu v. Ashcroft, 393 F.3d 418, 422 (3d Cir. 2005). 

The government claims that Manaa-Atallah failed to exhaust his administrative 

remedies with regard to his claim that his 1995 convictions did not qualify as grounds for 

removability. We agree. 

In his brief to this court, Manaa-Atallah claims that because his sentence for his 

1995 convictions was vacated and never properly reinstated, the convictions were not 

final for immigration purposes, and therefore could not serve as the basis for removability 

for a conviction for an aggravated felony. Manaa-Atallah raised a similar issue before 

the IJ, but the IJ characterized his argument as a collateral attack on his criminal 

convictions and determined that the IJ was precluded from considering such arguments. 

Manaa-Atallah did not appeal that determination to the BIA.

It is not clear whether Manaa-Atallah‟s argument is properly characterized as an 

attack on the legality of his convictions, or a challenge to the removal order against him. 

In either case, however, we lack jurisdiction to consider the argument. If his claim is an 

attack on the legality of his convictions, those “convictions are no longer in their own 
7

right open to direct or collateral attack. Thus, [Manaa-Atallah] is without recourse.” 

Drakes v. I.N.S., 330 F.3d 600, 604 (3d Cir. 2003). If his claim is a challenge to the 

removal order, Manaa-Atallah‟s failure to appeal the IJ‟s determination that he was an 

aggravated felon to the BIA renders the claim unexhausted. Such a “due process claim[]

. . . could have been argued before the BIA, and [Manaa-Atallah‟s] failure to do so is thus 

fatal to our jurisdiction” over such a claim. Bonhometre v. Gonzales, 414 F.3d 442, 448 

(3d Cir. 2005).

B.

The government also claims that we lack jurisdiction to consider Manaa-Atallah‟s 

claim that the BIA held him to an improperly high standard to establish his entitlement to 

relief under CAT. We agree.

Manaa-Atallah claims that the BIA: 1) erroneously required corroborating 

evidence despite the IJ‟s finding that his testimony was credible; 2) improperly 

disregarded probative evidence that supported his CAT claim; and 3) as a result of these 

two errors, cumulatively required Manaa-Atallah to meet a higher standard than required 

to establish his entitlement to CAT relief.

With certain exceptions, “no court shall have jurisdiction to review any final order 

of removal against an alien who is removable by reason of having committed” an 

aggravated felony. 8 U.S.C. § 1252(a)(2)(C). Among the enumerated exceptions to that 

rule, a court may still undertake “review of constitutional claims or questions of law

raised upon a petition for review filed with an appropriate court of appeals.” 8 U.S.C. § 
8

1252(a)(2)(D). To determine whether we properly have jurisdiction to consider ManaaAtallah‟s claims regarding the BIA‟s review of evidence and the standard applied in 

determining his entitlement to CAT relief, we must determine whether he is raising a 

constitutional or legal claim.

Manaa-Atallah‟s first argument is that the BIA erroneously required him to 

provide evidence which corroborated his testimony when the credible evidence of his 

testimony was sufficient to meet his burden of proof on CAT eligibility. Manaa-Atallah 

styles this argument as a claim that the BIA applied an improper legal standard by failing 

to de facto accept his credited testimony as sufficient evidence to support CAT relief. 

The regulation on which Manaa-Atallah‟s argument relies, 8 C.F.R. § 

208.16(c)(2), specifies that the “[t]he testimony of the applicant, if credible, may be 

sufficient to sustain the burden of proof [for CAT relief] without corroboration.” In 

interpreting identical language, this Court has noted that “[s]aying that something may be 

enough is not the same as saying that it is always enough; in fact, the most natural 

reading of the word „may‟ in this context is that credible testimony is neither per se 

sufficient nor per se insufficient.” Abdulai v. Ashcroft, 239 F.3d 542, 552 (3d Cir. 2001). 

In other words, whether uncorroborated credible testimony constitutes sufficient evidence 

to sustain CAT relief depends on the weight the agency accords to the credible testimony. 

“[A]rguments such as that an [IJ] or the BIA incorrectly weighed evidence, failed to 

consider evidence or improperly weighed equitable factors are not questions of law under 

§ 1252(a)(2)(D).” Jarbough v. Attorney General, 483 F.3d 184, 189 (3d Cir. 2007). We 
9

therefore conclude that we lack jurisdiction to consider Manaa-Atallah‟s claim that the 

BIA improperly required him to corroborate his testimony.

We also conclude that we lack jurisdiction to review Manaa-Atallah‟s claim that 

the BIA improperly disregarded probative evidence in support of his CAT claim, as 

arguments pertaining to an alleged failure to consider evidence do not give rise to 

“questions of law under § 1252(a)(2)(D).” Id. Inasmuch as Manaa-Atallah‟s arguments 

concerning the CAT standard do not present a constitutional or legal claim and thus do 

not fall into the exception permitting our jurisdiction, we may not review those claims.

III.

Having resolved the jurisdictional issues presented by the appeal before us, we 

now turn to Manaa-Atallah‟s remaining claim. Manaa-Atallah contends that the BIA 

improperly applied the “clearly erroneous” standard of review in its review of the IJ‟s 

decision. We conclude that the BIA did not err in its application of the clearly erroneous 

standard.

Because the BIA overturned the IJ‟s decision, we review the BIA‟s decision, 

rather than the IJ‟s decision. Abdulai, supra, 239 F.3d at 548-49. Although we ordinarily

review an agency determination that an individual is not eligible for CAT protection 

under the “substantial evidence” standard, Sevoian v. Ashcroft, 290 F.3d 166, 170 (3d 

Cir. 2002), Manaa-Atallah‟s claim that the BIA misapplied a legal standard is a legal 

claim, over which we exercise de novo review. See, e.g., Pieschacon-Villegas v. 

Attorney General, 671 F.3d 303, 310 (3d Cir. 2011) (subjecting several issues, including 
10

whether the BIA properly applied a legal standard, to de novo review as “legal 

determinations.”).

When reviewing an IJ‟s CAT determination, the BIA is to review “factual findings 

under a „clearly erroneous‟ standard, and [apply] . . . a de novo standard of review in 

determining whether the claimed discrimination or mistreatment would constitute torture 

under the legal framework.” Kaplun v. Attorney General, 602 F.3d 260, 272 (3d Cir. 

2010). The BIA can hold a factual finding clearly erroneous “when although there is 

evidence to support it, the reviewing [Board member or panel] on the entire evidence is 

left with the definite and firm conviction that a mistake has been committed.” United 

States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948). The BIA cannot overturn a 

finding of fact simply because it would have made a different factual determination had it

been the factfinder. Anderson v. City of Bessemer, 470 U.S. 564, 573 (1985).

We note, at the outset, that the BIA is entitled to a presumption of regularity in its

review. Accordingly, the “burden of proof rests with the party alleging irregularity.” 

Frisby v. U.S. Dep‟t of Housing and Urban Development, 755 F.2d 1052, 1055 (3d Cir. 

1985). Manaa-Atallah has failed to carry his burden of proof. 

Manaa-Atallah claims that the BIA erred when it found the following to be clearly 

erroneous: 1) the IJ‟s determination that he would be tortured if removed to the West 

Bank; 2) the IJ‟s determination that he would be tortured if removed to Israel; and 3) the 

IJ‟s determination that he would be tortured if removed to Jordan.
11

In overturning the IJ‟s finding with regard to the West Bank, the BIA reviewed the 

evidence that was before the IJ, and concluded that it could not support a finding that 

Manaa-Atallah faced a clear probability of torture. Specifically, the BIA determined that, 

in reaching his determination, the IJ had relied on speculation from a lay witness, 

speculation that two separate organizations would cooperate to enforce a thirty year old 

fatwa, and a single unauthenticated document. The BIA pointed out that this evidence 

was unreliable, and additionally considered the fact that Manaa-Atallah had twice applied 

to return to the West Bank or returned to the West Bank since 1980. Taken together, the 

BIA was correct that the IJ committed clear error in finding that Manaa-Atallah faced a 

clear probability of torture in the West Bank.

Manaa-Atallah conceded that he did not fear torture if removed to Israel; 

accordingly, the BIA committed no error in concluding that he faced no clear probability 

of torture in Israel. As to Jordan, Manaa-Atallah contends that the IJ did not commit 

clear error when it concluded that he faced a clear probability of torture on the basis of a 

law which punished individuals who sold land to Israelis and a newspaper article 

detailing an arrest for such a sale. We disagree. The law to which Manaa-Atallah refers

was repealed in 1968, and Manaa-Atlallah provided no evidence that he would face 

arrest, nor any evidence that such arrest would constitute torture. Accord Berishaj v. 

Ashcroft, 378 F.3d 314, 332-333 (3d Cir. 2004), abrogated on other grounds by Nbaye v. 

Attorney General, 666 F.3d 57 (3d Cir. 2011), (something more than “scattered” reports 

of torture is required to sustain a finding of clear probability of torture).
12

IV.

Because the BIA properly applied the “clearly erroneous” standard of review, and 

because we lack jurisdiction to consider Manaa-Atallah‟s other claims, we will deny 

Manaa-Atallah‟s petition for review.