2004 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

11-4-2004 

# Abuali v . Att y Ge n U S A
P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al D ock e t N o . 02-4244

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NOT PRECED ENTIAL

UNITED S TATES COUR T OF APPEAL S FOR THE THIRD CIRCUIT

No. 02-4244

SULEIMAN ABU ALI,

Petitioner

v. JOHN AS HCROF T, Attorney General o f the United States, Respondent

On Petition for Review of an Ord er of the Bo ard of Immigration A ppeals (No. A73-035-795 )

Arg ued: May

24 , 2004 Before: ROTH , AMBRO and CHERTOFF , Circuit Judges

.

(Filed: November

4, 2004)1 At the time the BIA ac ted on Abuali’s appeal, the stre amlining regulations were

found at 8 C.F.R. § 3.1(a)(7) (2 002). Becau se the languag e of the two sections is largely 2 JAMES G. MARTIN (Ar gued) Levitt & Needlem an, P.C. 1780 Broadway 10th Floor New York, NY 10019 Counsel for Petitioner PETER D. KEISLER Assistant Attorney

General MARY JAN

E CANDAUX Senior Litigation Counsel LESLIE C AYER OHTA DANIEL E. GOLDMAN (Argue d) Office of Im

migra tion Liti gation Civil Divi sion United States Departm

ent of Justice P.O. Box 878, Ben Fr

anklin Sta

tion Washingt on, DC 20044 Counsel for

Respondent

OPINI ON

CHERTOFF , Circuit

Judge

. Suleiman Abuali pe

titionsthis Court

to review a final or

der of rem

oval ente red by the Board of Immigrati on Appeals (BIA). The BIA issued an expedited summar y affirmance of the

Imm igrati on Judge’s ( IJ) orde r of rem oval pursua

nt to 8 C.F.R

. § 1003.1(e)(4). 1 Abuali challenges both the propriety of the BIA’s summary

affirmanceidentic al, we wi ll refe r to 8 C.F.R. § 1003.1(e)(4) throughout t his opinion.

2 On March 1, 2003, the INS ce ased to exist as an agency

within the

Departm ent of Justice and its function s were transferred to the Department o f Homeland S ecurity. See Homela

nd Securit

y Ac t of 2002, Pub. L. No. 107-296, 110 Stat . 2135 (2002). For the sake of consist

ency , we will

use the t erm I NS to refer

both to the hi storic al INS and to the Department of Homela nd Security t

o the extent that it is currently fulfilling duties histori cally

perform ed by the INS. 3 in his case, as well as the validity of that proced ure generally. Abuali also challenges, indirec tly , the IJ ’s fail

ure to cons ider evi dence tha t Abuali’ s citi zenship i s some thing other tha n Jordania

n. We will deny

the petition. I. A. Abuali first applied for asy lum on August 12, 1993. That application was apparently

not acted upon. On April 3, 1996, the Immigration and Naturaliz ation Service (INS) 2 comm

enced depor

tation pr oceedingsagainst

Abuali. A Ma ster Ca

lendar He aring was held in Newark, Ne w Jerse y on J uly 19, 1996. At tha

t Maste r Calenda r Heari ng, Abuali admitted th at he was a citizen an d native of Jordan. He a lso withdrew his claim for political asylum. On January 10, 1997, Abuali requested an adjournment and leave t o submit a new asylum application. At an ind ividual hearin g on Au gust 4, 19 97, the IJ ref used to consider Abuali’sapplica

tion for as yl

um and only

consider ed Abuali’ s applic ations for withhold ing of d eportation an d volun tary departure in lieu of deportation . The IJ also, in light of A buali’s statement at the July 19, 19 96 Master Calen dar Hearing , refused to3 Citations to th e Administrative Reco rd are design ated by “R.” The letter actually

states that “ Mr. Suleiman Abbas Ahmad Ibrahim has never enjoyed a J ordanian citizenship.” (R. 12.) We note in passing that the birth cer tificate submitted by Abuali a t his deportation hearing lists hisfather’s name a s “Abas Ahmad Ibrahim, ” (App. 10), 4 consider evidence that Abuali’s ci tizenship was any

thing other than Jordanian. The IJ denied Abuali’s re quest for withholding of depor tation but granted hi s applic ation for voluntary depart

ure. On August 27, 1997, Abua li appea led the I J’s refusals t

o consider

his asy lum application and to reconsider his citizenship. On November 30, 1999, the BIA reinstated Abuali’sclaim

for asy lum but di d not addres s the ques tion of his c itize nship. On May

5, 2000, an indivi dual hear

ing was hel d regarding Abuali’sclaim s for asy lum and withholding of de

portati on. At that

hearing, the IJ a

gain refus ed to ente

rtain t he contention that, despite his statement to the contrary, Abuali w as not a citizen of Jordan. The IJ is sued an ora

l opinion finding Abuali’stestimony credibl e but denie d asy

lum and withhold ing of d eportation b ased on Ab uali’s failure to e xplain wh y he was unable to

seek em ploy ment in J ordan

and on c hange d count

ry condi tionsin the

Wes t Bank . On May 23, 2000, Abuali

timely appeale d to the BIA t

he IJ’sdecisi ons not to cons ider the question o f his citizenship and to den y him asy lum and withh olding o f deportatio n. On December 5 , 2001, w hile his appeal w as pending before the BIA, Abu ali forwarded t

o the BIA a l etter

from the Perma nent Miss ion of the Holy Kingdom of Jordan to th e United Natio ns stating that h e had “nev er enjoyed a Jordan ian citizenship.” (R. 12. 3 ) On October

23, 2002, the BI

A affirm ed without opinion the IJ ’s May 5, 2000while other d ocumentation lists it as “A bbas Abu ali,” (R. 878.) 5 decision. Ab uali timely filed for review b efore this Co urt. B. Abuali wasborn in 1964 in the town of Mukhmas . At the t ime of hi s birth, Mukhmas was a p art of the Kin gdom of Jo rdan. Since 1 967, ho wever, Muk hmas and its surround ing territory have been part of the Isr aeli Occupied Territories commonly referr ed to as t he West Bank. Accor

ding to Abuali , his bir

th cert ificat e was is sued by

the Kingdo m of Jordan p rior to the occu pation of his native regio n by Israel. The birth certi ficate offered int

o evidence

at his de portati on hearing, however, wa s issue d in 1971 by t he West Bank Command. Abuali has never

sought, nor a

pparentl y ha s he ever

held, a Jordanian p assport. Abuali entered the United States on July 18, 1989 with a tourist visa using an Isr ael i-i ssue d tra

vel do cument. At tha

t ti me, Abual i re ferr

ed to hims elf a s, a

nd the INS issued a n arriva l docume nt list ing him a s, “Sta

teles s/Pale stinia

n.” Abuali

did not lea

ve the Unite d Statesupon the expir ation of histourist

visa. I nstead, in 1993, he applied for asylum with the United States. O n his asylum application, ho wever, Ab uali listed his nationality as Jordanian. F urther compou nding th e confusio n, Abuali (th rough co unsel) admitted at a July 19, 1996 hearing the tru th of an alleg ation in an O rder to Sho w Cause that he was a na tive and citizen o f Jordan. In his subs equent as yl

um appli cation fi led in 1997, Abua li see ms to ha ve4 See supranote 3 and correspond ing text.

5 The recor

d is not cl ear as to the ide ntity of the “othe

r fami ly ,” the na

ture of Abuali’s con flict with them, or w hy he fears that they might kill him. The reco rd is also not clea r as to whe

ther the IJ, who found cr

edible Abua

li’s t estim ony with respe ct to the conditionsin Mukhmasat the t ime he left, a lso cre dited the

1993 applica

tion’s a verme nt with respect to th e “other family.” The issue was n ot pressed by Abuali o n appeal an d is not centr al to our de

term ination. 6 attempted to clarify the conf usion by listing his co untry of birth as Jord an, his nation ality at birth as Jordan ian, but his th en-current n ationality as “Stateless.” But almost immedia tely thereafter, at

an August 4, 1997 hearing, Abuali testified both that he was and that he w as not a Jordan ian citizen. A trav el document issued to Abuali b y the Israeli Consulate General in New York City in September 1998 listed his nationality a s Jordania n, although t

he October

30, 2001 docume

nt issue d by t

he Permanent Mis sion of the Holy Kingdom of Jordan to the United Nations sta ted that “Mr. Suleiman Abbas Ahmad Ibrah im has never enjo yed a Jordanian citizensh ip.” 4 (R. 12.) Two years later, during h is May 2000 hearing , Abuali again referred to h is nationality as “Palestinian.” C. In his 1993 as yl

um appli cation, Abuali st ated tha t he sought t

he protec tion of the United States b ecause he had no freed om in his coun try and because of a d ispute with another fa mily. In that same application, Abuali sp eculated that, sho uld he return to his native Muk hmas, he might be killed by the “other family” or thrown in jail. 5 (R. 215.) At his August 4, 1997 hearing, Abuali stated that he feared returning to Mukhmas because it was “ possible that [he] c ould die” a

nd that the

re was “ danger for [hi m] from6 Abuali also alleges that , on two separate occasions si nce his arrival in the Unite d

States , two of his ot

her brothe

rs were beaten a nd impri soned. 7 both sides.” (R. 524.) At his May 5, 2000 hearing, Abuali reiterated that he fear ed “[d]estru ction and d eath” should he return to M ukhmas because the only work availab le to him wa s in Isr

ael, for cing him to pass t hrough checkpoi nts and work within Isr ael. ( R. 178.) At his several he arings, Abuali related t he sad pic ture of li fe in and ar ound the Israeli Occupied Territories at the time Ab uali was living there. Abua li related how, in his native Mu khmas, the Arabs w ould thro w rocks at the I sraeli busses. Abu ali explained th at the only work to b e found in the region was in Israel, fo rcing Arab s to cross fr om the Oc cupied Ter

ritori es into I srael

every day . At the bor

der, the Arabs, not being citizens o f Israel, were subjected to search es. During th ese searches, Abu ali explaine d, his pape

rs were regular ly inspect ed, his ba g searc hed, and hislunch thrown on the ground. Al so during the se border crossings, Abuali

asser ted, Ara bs and res idents of the Occupie d Territories wo uld be threaten ed by Israelis, who wo uld often “tr[y] to hit” them. Abuali related two particula r incidents of violence, one of which involved Abuali’sbrother. According t o Abuali, hi s brother , Ahmed Abua li, wasdetaine d by t

he Israeli polic e in connec tion with a stone-t hrowing inci dent. During that det ention, t he Israeli police stuff ed cigarettes in A hmed’s ears. 6 Abuali also relate d an inciden t in which he w as beaten wh ile working in Jerusalem by two men he iden tified as Israelis7 Abuali’s asy lum application als o claims that Abuali was “beaten by

soldiers as other member s of the Israeli Arm y watched.” (R. 342.) This allegation, however, appears neither

in Abuali’ s briefsbefore thi s Court nor a nywhe re els e in the Administrative Reco rd. 8 with “a r eligiouslook.” The t

wo men bega

n beating Abua

li by striking him in t

he stoma ch. When Abua

li fled, the me

n threw st ones at him. The m

en’s thr eatening behavior s topped only

upon the arr

ival of the

Israeli arm

y, to whom Abuali report ed the incident . According to Abuali, however, t he Isra eli ar my neither apprehende d nor reprim anded the m

en. 7 Based on these experiences, Abuali beli eves that his life would be in danger should he re

turn to hisnative r

egion. II. This is a n imm igrati on case in which the pe titione r chall enges a fi nal order of deportation. Because the deportati on proceedings against Abuali were comm enced before Apri l 1, 1997, but a final orde

r of deporta

tion was i ssued on or a

fter Oct ober 31, 1996, we have jur

isdict ion under the

transitional pr

ovisions of t

he Ille gal Im

migra nt Reform and Immigrant R esponsibility Act of 1 996 (IIRIR A). See Pub. L. No. 104- 208, div. C., tit. III, subtit. A, § 309 (c)(4)(D), 110 Stat. 3009, 30 09-626 (1996). III. Abuali challen ges the BIA’s d ecision to app ly the streamlining regulations in his case. Abuali arg ues that the streamlining regulations w ere not applica ble to his case8 The curren t streamlining regulatio ns read, in relev ant part:

(I) The Boa

rd mem ber to whom

a case is ass igned shall affirm

the deci sion of the Service or the imm igration judge, without opinion, if the Board member det

ermines that

the result reac hed in the decision under review was correc t; that

any errorsin the dec ision under review we

re harm less or nonmaterial; a

nd that (A) The is sues on appe al are squarel y c ontrolle d by existing Boa rd or federal court pre cedent a

nd do not involve t

he applic ation of pre cedent t o a novel fact

ual sit uation; or (B) The factual and legal issues raised on appeal are not so substanti al that the case warrants the issuance of a written opinion in the case

. 8 C.F.R. § 1003.1 (e)(4). As orig inally promulgated, see 64 Fed. Reg. 56, 135, 56,141 (Oct. 18, 19 99), 8 C.F .R. § 3.1(a)(7 ) read, in relevan t part: (ii) The single Boa

rd Membe

r to whom a

case i s assi gned may

affirm the decisi on of the Servi ce or the Imm igrati on Judge, wit

hout opinion, i f the Board Member determ

ines that the result

reached in the decision under review was correct; t

hat any e rrors in the decision under review were harmless or nonma

terial; and that (A) the issue on appeal is squarely c ontrolled by exis ting Board or federal court pre cedent a

nd does not involve the appl icati on of precedent to a novel fact situat ion; or (B) the factual and legal questi ons raised on appeal are so insubstanti al that three- Member

review i s not warr

anted.

9 because the req uirements set out in 8 C.F.R. § 1 003.1(c)(4 ) were not met. 8 Sp ec ific al ly, Abuali dis putes tha

t: (1) t he IJ’sresult

was corr ect; ( 2) Abuali’ s appeal

did not involve the appli cation of pr

ecedent to a novel fa

ctual s ituati on; and (3) t

he factua l questi ons presented by

Abuali’s appeal were so insubstanti al as not to warrant three -member review. We have already had occasio n to consid er whether th is Court has a su fficient basis9 As noted ab ove, the curr ent streamlining regu lation requires th e BIA member to

consider wh ether the que stions presented “are not so sub stantial that the case w arrants the iss uance of a wr

itten opinion.” 8 C.F. R. § 1003.1(e) (4)(B). We see no meaningful distinction b etween these tw o standards. 10 from which to review the BIA ’s decision to streamline an alien’s appeal. See Smriko v. Ashcr oft , __ F.3d __, 2004 WL 2381946, at *12 (3d Cir . Oct. 26, 2004). In Smriko , we concluded that 8 C.F.R . § 1003 .1 provid es a “meaningfu l standard aga inst which to judge the agency’s exercise of discreti on.” Id. at *12-*13 ( quoting Heckler v. Chaney , 470 U.S. 821, 830 (1985) ). Thus , if we det ermine that t

he BIA’s de cision t

o strea mline was not arbitrary

and capricious in light of the requirem ents of 8 C.F.R. § 1003.1(e)(4), we will uph old it. See id. at *12. In this case, we co nclude that th e BIA’s decision was not arbitrar y and capricious. First, the record does not com pel the conclusion that the IJ er red in denying Abuali’s asylum application. Second , Abuali has made n o showin g, nor do we find, th at his factual situation is novel. To be sure, Abuali’s nationality is not entirely

straightforward and, as a result, his d eportation p roceeding d id not take an entirely linear path. But it is

no t a s i f t he IJ ha d t o s tr et ch pr ec ed en t t o c on fo rm it to Ab ua li ’s as ylu m c la im . F in al ly, the factual questions in Abuali’s ca se were not so substantial t o demand three-member revi ew. 9 The disputed facts are stra ightforward, and the determinati on that the IJ reached, tho ugh no t in Abuali’s f avor, was easily divined from those fac ts. The BIA d id not act arbitrari ly a

nd capriciously

in applying the st

reamlining regulat

ions to Abuali’s

case.10 We note t hat, whil e the IJ ’s oral

decisi on explicitly

decline d to recons ider the question of Abuali’s citizenship, it i s clear that t he IJ recognized and appreciated that Abuali was a native of the Israeli Occupied Territories. I

ndeed, the only re spect in which the IJ seems to have f ound A buali’s Jordan ian “citizenship” r elevant was in h is 11 IV. Abuali argues that the BIA’s str eamlining regulati ons violate a “fundamental principl e of administra

tive la w.” (Appellant’sBr. at 10, 15.) Abuali identifi es langua

ge in SEC v. Chenery

Corp. , 332 U.S. 194, 196 ( 1947), to the effect t hat, in or der for agency a ction to be valid, the agency must make explicit the grounds on which it takes that action. A majorit

y of this Court sit

ting en banc considered, and rejected, an essent ially identic al argum

ent in Dia v. Ashcr

oft . 353 F.3d 228, 241 (3d Cir. 2003). V. Abuali challen ges the IJ’s decision regarding h is nationality. He argues that h is own admission regarding h is citizenship was a re sult of his lack of educa tion and f acility with the Engl

ish langua

ge. He furt

her pointsto the le

tter fr om the J ordanian pe

rmane nt miss ion as proof t

hat he isnot, in fac t, a Jor danian citizen. We note t hat, give n the avai lable evidence, the IJ’ s decis ion does not a ppear to be objectively

erroneous . In light

of Abuali’sadmis sion, and t he fact t hat the l etter

he provided is somewhat ambiguo us, we canno t say that the IJ was necessarily incorrect in concluding that Abuali was a Jordanian citizen. Regar dless, whether or not the IJ’s conclusi on was err

oneous is not

a questi on we need ans wer as we find any error t o have been harmless. 10 If Abuali i s not, ashe claims, a Jordania n citiz en, the I

NS will bedetermination that A buali could avoid hav ing to wo rk in Israel, and all of the hard ship

that might entail, by seeking emplo yment elsewhere in Jordan. T o be sure, it is reasonable to contend th at Abuali’s Jord anian “citizensh ip” thus played an importan t role in the IJ’s decisi on not to grant asylum . But, for the reason stated above, any error was harmless. 12 unable to d eport him to that co untry. In that event, the I NS will be f orced to reo pen his deportation proceeding . Abuali will th en be able to se ek to correct th e error in perception a s to his citizenship and, presumably, will be ab le to seek reevalu ation of h is asylum and withholdin g of removal c laims. If, of course , Abuali is a citi zen of Jorda n, he will be dep orted to that co untry. But it goes with out saying that, if Ab uali is a Jordanian citize n, there was n o error in the I J’s decision. Abuali’s argu ment, therefore, w ould hav e this Court n eedlessly review the merits of the IJ’s asylum determination. Be cause the que stion will necessarily resolve itself through the na

tural c ourse of Abuali’s depor tation, we decline to do so. VI. For the fore going reas ons, we will deny Abuali’spetiti on.