13-21 Baidis v. Lynch BIA Burr, IJ A071 993 223 

### UNITED STATES COURT OF APPEALS

**FOR THE SECOND CIRCUIT**



## SUMMARY ORDER

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**At a stated term of the United States Court of Appeals for** 1 **the Second Circuit, held at the Thurgood Marshall United States** 2 **Courthouse, 40 Foley Square, in the City of New York, on the** 3
**17 th**  **day of November, two thousand sixteen.** 4
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**PRESENT:** 6 **DENNIS JACOBS,** 7 **BARRINGTON D. PARKER,** 8 Circuit Judges, 9

**JANE A. RESTANI,**  10 Judge, U.S. Court of International Trade. 11

**_____________________________________** 12 13 **BASSAM BAIDIS, AKA HASSAN GORAL,** 14 Petitioner **,** 15 16
**v. 13-21** 17 18 19 **LORETTA E. LYNCH, UNITED STATES** 20 **ATTORNEY GENERAL,** 21 Respondent

**.** 22

**_____________________________________** 23
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**FOR PETITIONER:** Joshua Bardavid, New York, NY. 25
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 Judge Jane A. Restani, of the United States Court of International Trade, sitting by designation.2 **FOR RESPONDENT:** Stuart F. Delery, Assistant Attorney 1 General; Erica B. Miles, Senior 2 Litigation Counsel; Jesse Lorenz, 3 Office of Immigration Litigation, 4 United States Department of Justice, 5 Washington, DC. 6

7 UPON DUE CONSIDERATION of this petition for review of a 8 Board of Immigration Appeals (“BIA”) decision, it is hereby 9 ORDERED, ADJUDGED, AND DECREED that the petition for review is 10 GRANTED in part and DENIED in part. 11
12 Petitioner Bassam Baidis, a stateless Palestinian, seeks 13 review of a December 27, 2012, decision of the BIA affirming 14 a December 2, 2010, decision of an Immigration Judge (“IJ”) 15 ordering him removed to Turkey or alternatively, Jordan or 16 Israel and the Occupied Territories. The IJ granted 17 withholding of removal with respect to Israel and the Occupied 18 Territories, but denied Baidis’s application for cancellation 19 of removal. In re Bassam Baidis, No. A071 993 223 (B.I.A. Dec. 20 27, 2012), aff’g No. A071 993 223 (Immig. Ct. N.Y. City Dec. 21 2, 2010). We assume the parties’ familiarity with the 22 underlying facts and procedural history in this case. 23 Baidis argues that the IJ, having granted him withholding 24 of removal to Israel, was required to grant him withholding of 25 removal to Turkey and Jordan. 1 His argument is as follows: he 26 adduced evidence that Turkey and Jordan will return him to 27 Israel; the IJ found that if returned to Israel, Baidis will 28 more likely than not be persecuted; the Immigration and 29 Nationality Act (“INA”) prohibits the Attorney General from 30 removing an alien to a country where he will be more likely than 31 not be persecuted; therefore, Baidis is entitled to withholding 32 of removal to all three designated countries of removal. 33 Baidis has identified a possible tension between the INA’s 34 removal commands and the provision on withholding of removal. 35

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 The INA’s removal commands list four “steps” for an IJ to take 1 in identifying the country of removal: 2 (1) An alien shall be removed to the country 3 of his choice . . . , unless one of the 4 conditions eliminating that command is 5 satisfied; 6

7 (2) otherwise he shall be removed to the 8 country of which he is a citizen

. . . , unless 9 one of the conditions eliminating that 10 command is satisfied; 11
12 (3) otherwise he shall be removed to one of 13 the countries with which he has a lesser 14 connection . . . ; or 15 16 (4) if that is “impracticable, inadvisable, 17 or impossible,” he shall be removed to 18 “another country whose government will 19 accept the alien into that country.” 20
21 Jama v. Immigration and Customs Enf’t , 543 U.S. 335, 341 (2005) 22 (citing 8 U.S.C. § 1231(b)(2)). In Jama , the Supreme Court 23 held that step 3 has no “acceptance requirement.” Id . at 24 341-42. So, if the alien is to be removed “to one of the 25 countries with which he has a lesser connection,” the government 26 need not get that country’s prior consent before designating 27 it. Id . at 341. But the INA goes on to state that 28 “[n]otwithstanding” the removal commands, “the Attorney 29 General may not remove an alien to a country if the Attorney 30 General decides that the alien’s life or freedom would be 31 threatened in that country because of the alien’s race, 32 religion, nationality, membership in a particular social group, 33 or political opinion.” 8 U.S.C. § 1231(b)(3). If the alien 34 makes the required showing, withholding of removal is 35 mandatory. Ramsameachire v. Ashcroft , 357 F.3d 169, 178 (2d 36 Cir. 2004) (citing 8 USC § 1231(b)(3)(A) & 8 C.F.R. § 37 208.16(b)(1)). 38 Baidis did not choose a country (step 1). As a stateless 39 Palestinian, he is not a citizen of any country (step 2). So, 40 the IJ identified the three countries with which Baidis has a 414 lesser connection (step 3): Turkey, from which Baidis was first 1 admitted to the United States in 1990; Jordan, which had 2 sovereignty over his birthplace when he was born; and Israel, 3 which has sovereignty over it today. The IJ designated Turkey, 4 with Jordan and Israel as alternatives. In accordance with 5

Jama , whether any of those countries would accept Baidis played 6 no role in the designation. Nor did the IJ analyze whether it 7 would be “inadvisable” to remove Baidis to those countries (step 8 4). 9 Baidis’s application for withholding described a fear of 10 persecution in Israel and the occupied territories. It made 11 no mention of Turkey or Jordan. However, Baidis testified that 12 he would not be permitted to reside in Turkey, notwithstanding 13 his wife’s citizenship. He testified about his inability to 14 reside permanently in Jordan, and his attorney submitted an 15 affidavit about Baidis’s conversation with the Jordanian 16 consulate on that topic. But, as Baidis concedes, nothing in 17 the record suggested that his “life or freedom would be 18 threatened” while he was in Turkey or in Jordan. 8 U.S.C. § 19 1231(b)(3). 20 The parties have not identified another case addressing a 21 stateless alien who was granted withholding of removal to one 22 of the countries with which he has a lesser connection. It is 23 unclear whether Baidis could have been eligible for withholding 24 of removal to Turkey and Jordan on the ground that those 25 countries would return him to Israel. If so, how would one 26 raise such a claim? The BIA’s decision is unclear; it concluded 27 that Baidis had not raised a withholding claim with respect to 28 Turkey or Jordan, but did not acknowledge the evidence that 29 Turkey and Jordan will return him to Israel. Also unclear is 30 whether the IJ should have evaluated if it would be 31 “inadvisable” to remove Baidis to countries that will return 32 him to Israel, where, as the IJ found, he will more likely than 33 not suffer persecution. See 8 U.S.C. §§ 1231(b)(2)(E)(vii), 34 1231(b)(3); but see Jama , 543 U.S. at 341. 35 We will not attempt to answer these questions in the first 36 instance. See, e.g., Yuanliang Liu v. U.S. Dep’t of Justice

, 37 455 F.3d 106, 116 (2d Cir. 2006) (“Federal courts, of course, 38 do sometimes answer questions of first impression without 39 administrative guidance. But they need not do so in all 40 cases.”). Instead, we remand for the BIA to clarify its 415 decision and determine what findings, if any, the IJ had to make 1 about the possibility that Turkey or Jordan would return Baidis 2 to Israel and the relevance of such findings to the removal 3 order. If additional findings are necessary, the BIA may, of 4 course, remand to the IJ. 5 Baidis also challenges the IJ’s finding that he lied in his 6 naturalization proceeding for the purpose of obtaining U.S. 7 citizenship. Cancellation of removal requires, among other 8 things, that the alien has “been a person of good moral 9 character” during the ten-year period preceding his 10 application. 8 U.S.C. § 1229b(b)(1)(B). “No person shall be 11 regarded as, or found to be, a person of good moral character 12 who,” during that time, gave “false testimony for the purpose 13 of obtaining any benefits” under the I.N.A. 8 U.S.C. 14 § 1101(f)(6). This provision has no materiality requirement; 15 “it denominates a person to be of bad moral character on account 16 of having given false testimony if he has told even the most 17 immaterial of lies with the subjective intent of obtaining 18 immigration or naturalization benefits.” Kungys v. United 19

States , 485 U.S. 759, 780 (1988). We review the agency’s 20 determination that an alien made false statements with such 21 intent for substantial evidence. Medina v. Gonzales , 404 F.3d 22 628, 634 (2d Cir. 2005). 23 The record amply supports the agency’s finding that Baidis 24 lied for the purpose of obtaining citizenship. He lied on his 25 naturalization application and while under oath in his 26 naturalization interview. In the removal hearing, Baidis 27 admitted that at the naturalization interview, he was “trying 28 to give answers to have that application approved.” Together, 29 this is substantial evidence supporting the agency’s finding 30 that he gave false testimony for the purpose of obtaining 31 citizenship. 8 U.S.C. § 1101(f)(6). Logic also supports the 32 finding: to tell the truth during his naturalization interview 33 would have required Baidis to admit that he evaded inspection 34 at the border and lied to immigration officials about something 35 so basic as his name. 36 37 38 39 40
416 For the foregoing reasons, the petition for review is 1 GRANTED in part and DENIED in part, and this case is REMANDED 2 for further proceedings consistent with this order. 3
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FOR THE COURT: 5 Catherine O’Hagan Wolfe, Clerk 6