Case: 18-60543 Document: 00515261811 Page: 1 Date Filed: 01/07/2020 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 18-60543 FILED January 7, 2020 Lyle W. Cayce REZA HEIDARI, Clerk Petitioner v. WILLIAM P. BARR, U. S. ATTORNEY GENERAL, Respondent Petition for Review of an Order of the Board of Immigration Appeals BIA No. A094 585 631 Before OWEN, Chief Judge, and BARKSDALE and DUNCAN, Circuit Judges. PER CURIAM:* Primarily at issue is whether our court has jurisdiction over a petition for review by Reza Heidari, whose criminal history triggers 8 U.S.C. § 1252(a)(2)(C)’s jurisdictional bar. The petition makes a factual challenge to the Board of Immigration Appeals’ (BIA) affirming an Immigration Judge’s (IJ) denying a motion to reopen removal proceedings for deferral of removal under the Convention Against Torture (CAT). DISMISSED. * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. Case: 18-60543 Document: 00515261811 Page: 2 Date Filed: 01/07/2020 No. 18-60543 I. Heidari, an Iranian citizen, was admitted to the United States as a refugee in 2004. He became a lawful permanent resident in 2006. In May 2012, however, he pleaded guilty to attempted distribution of opium, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and was sentenced to, inter alia, 18-months’ imprisonment. The Department of Homeland Security then charged Heidari with two grounds of removability based on his conviction: having been convicted of an aggravated felony, pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii); and having been convicted of a controlled-substance offense, pursuant to 8 U.S.C. § 1227(a)(2)(B)(i). During removal proceedings, in September 2013, Heidari conceded his removability but sought its deferral under the CAT. An IJ found Heidari did not meet his CAT burden of showing it was more likely than not he would be tortured if removed to Iran: his testimony was insufficient; and he failed to provide reasonably available corroborating evidence. Consequently, the IJ denied Heidari’s requested relief and ordered him removed to Iran. Heidari waived his right to appeal to the BIA. (He was not removed to Iran and was released from U.S. Immigration and Customs Enforcement’s custody in December 2013. The record is unclear as to why he has not been removed; apparently the requisite Iranian travel document is lacking.) Almost four years later, in July 2017, Heidari moved to reopen his removal proceedings for deferral of removal under the CAT, based on claimed new and previously unavailable evidence. The IJ denied this motion on two independent grounds. First, after noting a movant must “make a prima facie showing that there is a reasonable likelihood that the relief sought would be granted at the reopened hearing”, the IJ found the record evidence did not establish prima 2 Case: 18-60543 Document: 00515261811 Page: 3 Date Filed: 01/07/2020 No. 18-60543 facie eligibility for relief. As in 2013, Heidari failed to include reasonably ...
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