Amir Shabo v. Jefferson B. Sessions, III

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 18a0111p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT AMIR FRANCIS SHABO, ┐ Petitioner, │ │ > No. 17-3881 v. │ │ │ JEFFERSON B. SESSIONS, III, Attorney General, │ Respondent. │ ┘ On Petition for Review from the Board of Immigration Appeals; No. A 026 808 024 Decided and Filed: June 11, 2018 Before: MOORE, THAPAR, and BUSH, Circuit Judges. _________________ COUNSEL ON BRIEF: Barry N. Schlussel, Huntington Woods, Michigan, for Petitioner. Andrea N. Gevas, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. David B. Thronson, MICHIGAN STATE UNIVERSITY, East Lansing, Michigan, for Amicus Curiae. _________________ OPINION _________________ JOHN K. BUSH, Circuit Judge. Amir Francis Shabo seeks to reopen his 1998 Board of Immigration Appeals (“BIA”) proceeding that ordered his removal to Iraq. He wants that removal withheld and seeks relief under the Convention Against Torture. He alleges that, as a Chaldean Christian, he faces likely torture in Iraq. No. 17-3881 Shabo v. Sessions Page 2 Because of Shabo’s prior criminal conviction and the operation of 8 U.S.C. § 1252(a)(2)(C) and (D), we lack jurisdiction to review the factual questions in his petition. Even if we were to agree with Shabo’s position on the reviewable question of law he presents—whether the changed-country-condition exception applies—we would lack jurisdiction to review the factual issue of whether Shabo established a prima facie case for relief. Therefore, under 8 U.S.C. § 1252(a)(2)(C) and the Article III doctrine of mootness, we dismiss his petition as unreviewable. I Shabo immigrated to the United States from Iraq in 1985. In 1992, at the age of twenty- five, he was convicted of an aggravated felony: possession with the intent to deliver 50 to 225 grams of cocaine. He was sentenced to 60 to 240 months of imprisonment. After 60 months he was paroled to immigration authorities, and an immigration judge ordered his removal to Iraq based on his being convicted of an aggravated felony and of a crime relating to a controlled substance. The BIA denied his appeal. But because the Iraqi government was not then issuing travel papers, Shabo remained in the United States. He has been here ever since. Iraq began issuing travel papers last year. Shabo anticipated that he would soon be detained, so he moved to reopen his 1998 BIA proceedings to seek protection under the Convention Against Torture. He anticipated correctly and has since been detained. Critically, he concedes that he is deportable under what is now 8 U.S.C. § 1227(a)(2)(A)(iii) and (B)(i). He argues for an exception to the ninety-day time limit on moving to reopen his case, which has long since passed, contending that the circumstances in Iraq have changed considerably since 1997, when the immigration judge originally ordered his removal. After examining Shabo’s motion, the BIA held that it was untimely and that the changed- country-conditions exception does not apply to applications under the Convention Against Torture. In the alternative the BIA held that, even ...

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