13-21 

Baidis v. Lynch

BIA 

Burr, IJ 

A071 993 223

UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED 

ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE 

PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT 

FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE 

(WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY 

OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals for 

2 the Second Circuit, held at the Thurgood Marshall United States 

3 Courthouse, 40 Foley Square, in the City of New York, on the 

17th 4 day of November, two thousand sixteen. 

5 

6 PRESENT: 

7 DENNIS JACOBS,

8 BARRINGTON D. PARKER, 

9 Circuit Judges,

10 JANE A. RESTANI,

11 Judge, U.S. Court of International Trade. 

12 _____________________________________ 

13 

14 BASSAM BAIDIS, AKA HASSAN GORAL, 

15 Petitioner, 

16 

17 v. 13-21 

18 

19 

20 LORETTA E. LYNCH, UNITED STATES 

21 ATTORNEY GENERAL, 

22 Respondent. 

23 _____________________________________ 

24 

25 FOR PETITIONER: Joshua Bardavid, New York, NY. 

26 

 

 Judge Jane A. Restani, of the United States Court of International Trade, 

sitting by designation. 
2

1 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney 

2 General; Erica B. Miles, Senior 

3 Litigation Counsel; Jesse Lorenz, 

4 Office of Immigration Litigation, 

5 United States Department of Justice, 

6 Washington, DC. 

7 

8 UPON DUE CONSIDERATION of this petition for review of a 

9 Board of Immigration Appeals (“BIA”) decision, it is hereby 

10 ORDERED, ADJUDGED, AND DECREED that the petition for review is 

11 GRANTED in part and DENIED in part. 

12 

13 Petitioner Bassam Baidis, a stateless Palestinian, seeks 

14 review of a December 27, 2012, decision of the BIA affirming 

15 a December 2, 2010, decision of an Immigration Judge (“IJ”) 

16 ordering him removed to Turkey or alternatively, Jordan or 

17 Israel and the Occupied Territories. The IJ granted 

18 withholding of removal with respect to Israel and the Occupied 

19 Territories, but denied Baidis’s application for cancellation 

20 of removal. In re Bassam Baidis, No. A071 993 223 (B.I.A. Dec. 

21 27, 2012), aff’g No. A071 993 223 (Immig. Ct. N.Y. City Dec. 

22 2, 2010). We assume the parties’ familiarity with the 

23 underlying facts and procedural history in this case. 

24 Baidis argues that the IJ, having granted him withholding 

25 of removal to Israel, was required to grant him withholding of 

removal to Turkey and Jordan.1 26 His argument is as follows: he 

27 adduced evidence that Turkey and Jordan will return him to 

28 Israel; the IJ found that if returned to Israel, Baidis will 

29 more likely than not be persecuted; the Immigration and 

30 Nationality Act (“INA”) prohibits the Attorney General from 

31 removing an alien to a country where he will be more likely than 

32 not be persecuted; therefore, Baidis is entitled to withholding 

33 of removal to all three designated countries of removal. 

34 Baidis has identified a possible tension between the INA’s 

35 removal commands and the provision on withholding of removal. 

 

1 Baidis contends that if he failed to apply specifically for withholding 

to Turkey and Jordan, it was because the IJ did not give him notice of her 

intention to designate those countries as countries of removal. He failed 

to exhaust this argument before the BIA, and so we decline to consider it. 

Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 107 n.1 (2d Cir. 2006, 

amended 2007). 
3

1 The INA’s removal commands list four “steps” for an IJ to take 

2 in identifying the country of removal: 

3 (1) An alien shall be removed to the country 

4 of his choice . . . , unless one of the 

5 conditions eliminating that command is 

6 satisfied; 

7 

8 (2) otherwise he shall be removed to the 

9 country of which he is a citizen . . . , unless 

10 one of the conditions eliminating that 

11 command is satisfied; 

12 

13 (3) otherwise he shall be removed to one of 

14 the countries with which he has a lesser 

15 connection . . . ; or 

16 

17 (4) if that is “impracticable, inadvisable, 

18 or impossible,” he shall be removed to 

19 “another country whose government will 

20 accept the alien into that country.” 

21 

22 Jama v. Immigration and Customs Enf’t, 543 U.S. 335, 341 (2005) 

23 (citing 8 U.S.C. § 1231(b)(2)). In Jama, the Supreme Court 

24 held that step 3 has no “acceptance requirement.” Id. at 

25 341-42. So, if the alien is to be removed “to one of the 

26 countries with which he has a lesser connection,” the government 

27 need not get that country’s prior consent before designating 

28 it. Id. at 341. But the INA goes on to state that 

29 “[n]otwithstanding” the removal commands, “the Attorney 

30 General may not remove an alien to a country if the Attorney 

31 General decides that the alien’s life or freedom would be 

32 threatened in that country because of the alien’s race, 

33 religion, nationality, membership in a particular social group, 

34 or political opinion.” 8 U.S.C. § 1231(b)(3). If the alien 

35 makes the required showing, withholding of removal is 

36 mandatory. Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d 

37 Cir. 2004) (citing 8 USC § 1231(b)(3)(A) & 8 C.F.R. § 

38 208.16(b)(1)). 

39 Baidis did not choose a country (step 1). As a stateless 

40 Palestinian, he is not a citizen of any country (step 2). So, 

41 the IJ identified the three countries with which Baidis has a 
4

1 lesser connection (step 3): Turkey, from which Baidis was first 

2 admitted to the United States in 1990; Jordan, which had 

3 sovereignty over his birthplace when he was born; and Israel, 

4 which has sovereignty over it today. The IJ designated Turkey, 

5 with Jordan and Israel as alternatives. In accordance with 

6 Jama, whether any of those countries would accept Baidis played 

7 no role in the designation. Nor did the IJ analyze whether it 

8 would be “inadvisable” to remove Baidis to those countries (step 

9 4). 

10 Baidis’s application for withholding described a fear of 

11 persecution in Israel and the occupied territories. It made 

12 no mention of Turkey or Jordan. However, Baidis testified that 

13 he would not be permitted to reside in Turkey, notwithstanding 

14 his wife’s citizenship. He testified about his inability to 

15 reside permanently in Jordan, and his attorney submitted an 

16 affidavit about Baidis’s conversation with the Jordanian 

17 consulate on that topic. But, as Baidis concedes, nothing in 

18 the record suggested that his “life or freedom would be 

19 threatened” while he was in Turkey or in Jordan. 8 U.S.C. § 

20 1231(b)(3). 

21 The parties have not identified another case addressing a 

22 stateless alien who was granted withholding of removal to one 

23 of the countries with which he has a lesser connection. It is 

24 unclear whether Baidis could have been eligible for withholding 

25 of removal to Turkey and Jordan on the ground that those 

26 countries would return him to Israel. If so, how would one 

27 raise such a claim? The BIA’s decision is unclear; it concluded 

28 that Baidis had not raised a withholding claim with respect to 

29 Turkey or Jordan, but did not acknowledge the evidence that 

30 Turkey and Jordan will return him to Israel. Also unclear is 

31 whether the IJ should have evaluated if it would be 

32 “inadvisable” to remove Baidis to countries that will return 

33 him to Israel, where, as the IJ found, he will more likely than 

34 not suffer persecution. See 8 U.S.C. §§ 1231(b)(2)(E)(vii), 

35 1231(b)(3); but see Jama, 543 U.S. at 341. 

36 We will not attempt to answer these questions in the first 

37 instance. See, e.g., Yuanliang Liu v. U.S. Dep’t of Justice, 

38 455 F.3d 106, 116 (2d Cir. 2006) (“Federal courts, of course, 

39 do sometimes answer questions of first impression without 

40 administrative guidance. But they need not do so in all 

41 cases.”). Instead, we remand for the BIA to clarify its 
5

1 decision and determine what findings, if any, the IJ had to make 

2 about the possibility that Turkey or Jordan would return Baidis 

3 to Israel and the relevance of such findings to the removal 

4 order. If additional findings are necessary, the BIA may, of 

5 course, remand to the IJ. 

6 Baidis also challenges the IJ’s finding that he lied in his 

7 naturalization proceeding for the purpose of obtaining U.S. 

8 citizenship. Cancellation of removal requires, among other 

9 things, that the alien has “been a person of good moral 

10 character” during the ten-year period preceding his 

11 application. 8 U.S.C. § 1229b(b)(1)(B). “No person shall be 

12 regarded as, or found to be, a person of good moral character 

13 who,” during that time, gave “false testimony for the purpose 

14 of obtaining any benefits” under the I.N.A. 8 U.S.C. 

15 § 1101(f)(6). This provision has no materiality requirement; 

16 “it denominates a person to be of bad moral character on account 

17 of having given false testimony if he has told even the most 

18 immaterial of lies with the subjective intent of obtaining 

19 immigration or naturalization benefits.” Kungys v. United 

20 States, 485 U.S. 759, 780 (1988). We review the agency’s 

21 determination that an alien made false statements with such 

22 intent for substantial evidence. Medina v. Gonzales, 404 F.3d 

23 628, 634 (2d Cir. 2005). 

24 The record amply supports the agency’s finding that Baidis 

25 lied for the purpose of obtaining citizenship. He lied on his 

26 naturalization application and while under oath in his 

27 naturalization interview. In the removal hearing, Baidis 

28 admitted that at the naturalization interview, he was “trying 

29 to give answers to have that application approved.” Together, 

30 this is substantial evidence supporting the agency’s finding 

31 that he gave false testimony for the purpose of obtaining 

32 citizenship. 8 U.S.C. § 1101(f)(6). Logic also supports the 

33 finding: to tell the truth during his naturalization interview 

34 would have required Baidis to admit that he evaded inspection 

35 at the border and lied to immigration officials about something 

36 so basic as his name. 

37 

38 

39 

40 

41 
6

1 For the foregoing reasons, the petition for review is 

2 GRANTED in part and DENIED in part, and this case is REMANDED 

3 for further proceedings consistent with this order. 

4 

5 FOR THE COURT: 

6 Catherine O’Hagan Wolfe, Clerk