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Told the IJ That His Father Died Shortly Thereafter in Iraq, While in the Custody of Iraqi Officials

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Told the IJ That His Father Died Shortly Thereafter in Iraq, While in the Custody of Iraqi Officials No. _________ In the Supreme Court of the United States AMIR FRANCIS SHABO, Petitioner, v. MATTHEW G. WHITAKER, Acting Attorney General, Respondent. On Petition for a Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit PETITION FOR A WRIT OF CERTIORARI BARRY N. SCHLUSSEL PAUL W. HUGHES Law Offices of Barry N. Counsel of Record Schlussel MICHAEL B. KIMBERLY 26339 Woodward Avenue Mayer Brown LLP Huntington Woods, MI 1999 K Street, NW 48070 Washington, DC 20006 (248) 548-1200 (202) 263-3000 [email protected] Counsel for Petitioner i QUESTION PRESENTED Because of the United States’ inviolable obliga- tion not to deport individuals to countries in which they are likely to be subject to torture, individuals who are statutorily ineligible for asylum may request withholding (or deferral) of removal. Such relief is, as courts repeatedly note, a fundamental bulwark to ensure that the government’s decision to deport an individual does not result in torture or death. The courts of appeals have deeply and intracta- bly divided as to whether 8 U.S.C. § 1252(a)(2)(C) di- vests them of jurisdiction to review factual findings underlying the administrative agency’s decision to deny a request for withholding (or deferral) of re- moval relief. The United States has expressly acknowledged the conflict among the circuits, and it has previously acquiesced to certiorari on this ques- tion. This case, unlike those before it, cleanly pre- sents the question for review. The question presented is: Whether, notwithstanding Section 1252(a)(2)(C), the courts of appeals possess jurisdiction to review factual findings underlying denials of withholding (and deferral) of removal relief. ii TABLE OF CONTENTS Question Presented ..................................................... i Table of Authorities ................................................... iii Opinions Below ............................................................ 1 Jurisdiction .................................................................. 1 Statutory, Treaty, and Regulatory Provisions Involved ....................................................................... 1 Statement .................................................................... 3 A. Statutory background. ...................................... 4 B. Factual background. ......................................... 8 C. Proceedings below. ............................................ 9 Reasons for Granting the Petition ............................ 19 A. The lower courts are intractably divided over the question presented. .......................... 20 B. The question presented is vitally important. ....................................................... 22 C. The decision below is wrong. .......................... 23 D. The petition provides a suitable vehicle for review. ....................................................... 27 Conclusion ................................................................. 32 iii TABLE OF AUTHORITIES Page(s) Cases Agonafer v. Sessions, 859 F.3d 1198 (9th Cir. 2017) .............................. 31 Bamaca-Cifuentes v. Attorney Gen. U.S., 870 F.3d 108 (3d Cir. 2017) ................................. 31 Bitsin v. Holder, 719 F.3d 619 (7th Cir. 2013) ................................ 21 Cole v. United States Attorney Gen., 712 F.3d 517 (11th Cir. 2013) .............................. 22 Corley v. United States, 556 U.S. 303 (2009) .............................................. 26 Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 2131 (2016) .................................... 23, 24 Edu v. Holder, 624 F.3d 1137 (9th Cir. 2010) .......................... 6, 21 Eneh v. Holder, 601 F.3d 943 (9th Cir. 2010) ................................ 21 Escudero-Arciniega v. Holder, 702 F.3d 781 (5th Cir. 2012) ................................ 22 Gourdet v. Holder, 587 F.3d 1 (1st Cir. 2009) .................................... 22 INS v. St. Cyr, 533 U.S. 289 (2001) .............................................. 25 Issaq v. Holder, 617 F.3d 962 (7th Cir. 2010) ................................ 25 Kiriakoza v. Sessions, No. 17-3907 (6th Cir. 2018) ................................. 29 In re Kiriakoza, No. A030 869 417 (2018) ................................ 30, 31 iv Cases—continued Lemus-Galvan v. Mukasey, 518 F.3d 1081 (9th Cir. 2008) ........................ 21, 27 Lenjinac v. Holder, 780 F.3d 852 (7th Cir. 2015) ................................ 21 Lindahl v. Office of Pers. Mgmt., 470 U.S. 768 (1985) .............................................. 23 Lovan v. Holder, 574 F.3d 990 (8th Cir. 2009) ................................ 22 Mach Mining, LLC v. EEOC, 135 S. Ct. 1645 (2015) .......................................... 23 Maldonado v. Lynch, 786 F.3d 1155 (9th Cir. 2015) .............................. 21 Medrano-Olivas v. Holder, 590 F. App’x 770 (10th Cir. 2014)........................ 22 Moncrieffe v. Holder, 569 U.S. 184 (2013) .......................................... 5, 24 Morris v. Sessions, 891 F.3d 42 (1st Cir. 2018) .................................. 20 Muyingo v. Holder, 540 F. App’x 571 (9th Cir. 2013).......................... 21 Ortiz-Franco v. Holder, 782 F.3d 81 (2d Cir. 2015) ................................... 22 Pieschacon-Villegas v. Attorney Gen. of U.S., 671 F.3d 303 (3d Cir. 2011) ................................. 22 Saleh v. Sessions, 2018 WL 5304812 (6th Cir. 2018) ....................... 28 Teneng v. Holder, 602 F. App’x 340 (7th Cir. 2015).......................... 21 Tran v. Gonzales, 447 F.3d 937 (6th Cir. 2006) .................... 19, 22, 28 v Cases—continued Turkson v. Holder, 667 F.3d 523 (4th Cir. 2012) ................................ 22 Ventura-Reyes v. Lynch, 797 F.3d 348 (6th Cir. 2015) .......................... 19, 28 Vinh Tan Nguyen v. Holder, 763 F.3d 1022 (9th Cir. 2014) ........................ 21, 23 Wanjiru v. Holder, 705 F.3d 258 (7th Cir. 2013) ........................ passim Yousif v. Lynch, 796 F.3d 622 (6th Cir. 2015) ................................ 14 Statutes and Regulations 8 C.F.R. § 1003.2(c)(3) ........................................................ 30 § 1208.16(c)(2)-(3) ............................................. 6, 27 § 1208.16(c)(4) ........................................................ 6 § 1208.16(d)(2) ........................................................ 6 § 1208.17(a) ............................................................ 7 § 1208.18(a)(1) ........................................................ 6 8 U.S.C. § 1158(b)(2)(A)(ii) ................................................... 5 § 1229a(c)(7)(C)(ii) ................................................ 30 § 1229b(a) ............................................................... 5 § 1231...................................................................... 5 § 1252(a)(1) ............................................................. 7 § 1252(a)(2)(C) .............................................. passim § 1252(a)(2)(D) ........................................................ 7 § 1252(a)(4) ........................................................... 26 § 1252(a)(5) ........................................................... 26 § 1252(b)(4) ......................................................... 7, 8 vi Statutes and Regulations—continued Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. No. 105-277, div. G, 112 Stat. 2681 .............................................. passim REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231 ........................................................ 25 Regulations Concerning the Convention Against Torture, 64 Fed. Reg. 8478 (Feb. 19, 1999) ................................................................. 6 Other Authorities Convention Against Torture and Other Cru- el, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 85 ......... 2, 5 Fact Sheet: Asylum and Withholding of Re- moval Relief, Convention Against Torture Protections, U.S. Dep’t of Justice, Exec. Office for Immigration Review (Jan. 15, 2009) ................................................................... 6, 7 Maria Sacchetti & Carolyn Van Houten, Death Is Waiting for Him, Wash. Post (Dec. 6, 2018) .......................................................... 3 PETITION FOR A WRIT OF CERTIORARI Amir Francis Shabo respectfully petitions for a writ of certiorari to review the judgment of the Unit- ed States Court of Appeals for the Sixth Circuit in this case. OPINIONS BELOW The court of appeals’ opinion (App., infra, 1a-8a) is published at 892 F.3d 237. The decisions and or- ders of the Board of Immigration Appeals (App., in- fra, 9a-23a) and the decision and order of the immi- gration judge (A.R. 201-202) are unreported. JURISDICTION The judgment of the court of appeals was entered on June 11, 2018. The order denying rehearing en banc was entered on July 31, 2018. Justice Kagan granted an application extending the time for the fil- ing of this petition until December 28, 2018. This Court’s jurisdiction is invoked under 28 U.S.C. § 1254(1). STATUTORY, TREATY, AND REGULATORY PROVISIONS INVOLVED 8 U.S.C. § 1252(a)(2)(C) states: Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, and except as provided in subparagraph (D), no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having com- mitted a criminal
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