Bashir Sharif v. William P. Barr


United States Court of Appeals For the Eighth Circuit ___________________________ No. 19-1478 ___________________________ Bashir Mohamed Sharif Petitioner v. William P. Barr, Attorney General of the United States Respondent ____________ Petition for Review of an Order of the Board of Immigration Appeals ____________ Submitted: January 17, 2020 Filed: July 7, 2020 ____________ Before SMITH, Chief Judge, LOKEN and GRUENDER, Circuit Judges. ____________ GRUENDER, Circuit Judge. Bashir Mohamed Sharif petitions for review of the Board of Immigration Appeals’ (“BIA”) decision to affirm an Immigration Judge’s (“IJ”) denial of his motion to reopen removal proceedings and to deny his motion to remand. For the reasons discussed below, we deny the petition in part and dismiss the remainder. I. Sharif, a native and citizen of Somalia, was admitted to the United States in 2000 as a refugee. He adjusted his status to lawful permanent resident in 2002. From 2005 to 2006, Sharif was convicted of three crimes, including violation of a protection order, see S.D. Codified Laws § 22-19A-16; injury to property, see S.D. Codified Laws § 22-34-1; and felony possession of a controlled substance, see S.D. Codified Laws § 22-42-5. As a result, the Department of Homeland Security initiated removal proceedings against Sharif in 2007, charging him with being removable under 8 U.S.C. §§ 1227(a)(2)(A)(ii)-(iii) and 1227(a)(2)(B)(i). While represented by counsel, Sharif conceded the charges, admitted removability, and declined to apply for any form of relief. The IJ ordered him removed to Somalia, and Sharif waived his appeal to the BIA. The Government did not seek to remove Sharif until a 2012 change in policy resumed deportations to Somalia. In December 2017, Sharif was placed on a flight to Somalia, chartered by Immigration and Customs Enforcement. Due to logistical issues, however, the plane landed in Senegal, where it remained for twenty hours before returning to the United States. On June 15, 2018, Sharif filed a motion to reopen removal proceedings to seek asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”) based on a claim of changed country conditions in Somalia. See 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. §§ 1003.23(b)(4)(i), 1208.4(b)(3)(ii). The IJ denied Sharif’s motion to reopen, finding that he failed to demonstrate a material change in country conditions since his 2008 removal order, and Sharif appealed to the BIA. While his appeal to the BIA was pending, Sharif filed a motion to remand to the IJ based on new evidence—an affidavit from Sharif’s sister—not available at the time of the original filing of his motion to reopen. Considering the motions together, see 8 C.F.R. § 1003.2(c)(4), the BIA affirmed the IJ’s denial of Sharif’s motion to reopen -2- and denied the motion to remand because Sharif had failed to demonstrate a material change in country conditions. Sharif timely petitioned this court for review. See 8 U.S.C. § 1252(b)(1). In response, the Government moved to dismiss for lack of jurisdiction because Sharif was subject to removal as a criminal alien. See id. § 1252(a)(2)(C). We ordered the motion to ...

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