Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-11-2007

Jarbough v. Atty Gen USA
Precedential or Non-Precedential: Precedential

Docket No. 06-1081




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                                        PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT
                     __________

                         No. 06-1081
                         __________

               ADEL FADLALA JARBOUGH,

                                              Petitioner,

                               v.

    ATTORNEY GENERAL OF THE UNITED STATES.

                  ______________________


                On Review of a Decision of the
                Board of Immigration Appeals
                 (Agency No. A79 138 652)
               Immigration Judge: R.K. Malloy

       Submitted pursuant to Third Circuit LAR 34.1(a)
                      January 25, 2007


 Before: SCIRICA, Chief Judge, FUENTES and CHAGARES,
                      Circuit Judges.


                    (Filed: April 11, 2007)

Marc J. Reiter
Suite 600
312 Boulevard of the Allies
Pittsburgh, PA 15222

Counsel for Petitioner
Adel Fadlala Jarbough
Richard M. Evans
Joan E. Smiley
Genevieve Holm
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044

Counsel for Respondent
Attorney General of the United States


                   OPINION OF THE COURT



CHAGARES, Circuit Judge.

        Adel Jarbough petitions for review of a final order of
removal issued by the Board of Immigration Appeals (“BIA”). As
explained below, we lack jurisdiction to review Jarbough’s claim
that extraordinary circumstances excused the late filing of his
asylum application. In addition, substantial evidence supports the
BIA’s denial of withholding of removal, and the Immigration
Judge’s (“IJ”) rulings and conduct did not violate the Due Process
Clause. Accordingly, we will dismiss the petition for review in
part, and deny it in part.

                                 I.

       Mr. Jarbough is a native and citizen of Syria. In March
2001, he entered the United States as a non-immigrant authorized
to remain until June of that year. Jarbough overstayed his visa, and
in December 2002 he filed an application for asylum, withholding
of removal, and protection under the Convention Against Torture
(“CAT”).1 Jarbough claimed to have suffered persecution in Syria


       1
        United Nations Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10,

                                 2
on account of his being a Druze,2 and on account of a pro-Israeli
political opinion imputed to him by the Syrian government.

        Jarbough conceded that he filed his asylum application more
than one year after his arrival in the United States. However, he
claimed that extraordinary circumstances excused the delay. See
8 U.S.C. § 1158(a)(2)(B), (D). Specifically, in May 2001,
Jarbough consulted with an attorney (not counsel in the present
appeal). Jarbough described his troubles in Syria, and the attorney
opined that Jarbough had little hope of winning asylum. When the
meeting ended, the men went their separate ways. Critically,
though, the attorney neglected to mention the one-year deadline for
filing an asylum application. According to Jarbough, this negligent
omission was an extraordinary circumstance capable of tolling the
one-year deadline.

       As to the merits, Jarbough styled his application as a “mixed
motives” case. See Singh v. Gonzales, 

, 197 (3d Cir.
2005). He claimed that the Syrian government’s decision to
persecute him resulted from a number of factors. First and
foremost, he was a Druze. Jarbough claimed that the Syrian
government has traditionally suspected the Druze of collaborating
with the Israelis. Second, Jarbough had served in the Syrian
military and worked as a civilian employee of the Ministry of
Defense. Third, he had been in communication with his uncle, a
resident of the Israeli-controlled Golan Heights. In early 2001,
Jarbough’s uncle visited his family in Syria for the first time since
the 1967 Six-Day War. Jarbough and his uncle subsequently spent
two days together. This apparently raised the suspicions of the
Syrian intelligence authorities. Jarbough claimed that these
authorities believed he was an Israeli spy and, for that, they



1984, 1465 U.N.T.S. 85, implemented in the United States by the
Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. No.
105-277, § 2242, 112 Stat. 2681-761 (codified at 8 U.S.C. § 1231).
       2
         The Druze religion grew out of Shia Islam and was founded
in the eleventh century. Its adherents are primarily concentrated in
Lebanon, Syria, and Israel. See generally Salman Falah, The
Druze in the Middle East 1-4 (2002).

                                 3
persecuted him.

        A few weeks after the visit from Jarbough’s uncle, Syrian
intelligence officers seized Jarbough from his home and took him
to their facility. The officers placed Jarbough in an interrogation
room that contained wires and electrical cables. They told
Jarbough, “[I]f you don’t tell the truth . . . you will have [the] feel
of it.” Appendix (“App.”) 192. Although the officers did not use
the electrical devices, they repeatedly screamed at Jarbough and
jabbed their fingers and fists into his shoulder. After four hours of
interrogation, they released him.

        Ten days later, the authorities seized Jarbough again. This
time he remained in their custody for two days. Once again, the
officers cursed and screamed, yelling, “You are a spy, all of you
are.” App. 210. In the interrogation room, Jarbough saw electric-
shock machines that looked similar to torture devices he had seen
on television. The officers did not use the devices, but they did
administer a series of kicks, shoves, and pushes. After two days,
the officers released Jarbough and told him to remain in his house.
Jarbough had some bruises, but he did not go to a doctor because
his injuries “did not really require immediate medical
intervention.” App. 258. Shortly thereafter, he left for the United
States.

        Jarbough recounted these tribulations at an August 2004
hearing before an IJ. At the beginning of the hearing, Jarbough’s
attorney asked for a continuance. He wanted a delay to secure the
expert testimony of Professor Joshua Landis, a scholar well-versed
in the historical plight of the Syrian Druze. The IJ responded that
she was “finishing th[e] case today.” App. 137. Her next available
hearing date was in April 2005, and she viewed an eight-month
delay as unacceptable. Rebuffed, Jarbough’s attorney instead
submitted an article by Professor Landis. See Joshua Landis,
Shishakli and the Druzes: Integration and Intransigence, in The
Syrian Land: Processes of Integration and Fragmentation 369 (T.
Philipp & B. Schaebler eds., 1998), reprinted in App. 515-37. The
IJ stated that she would “certainly take note of th[e] article.” App.
142.

       Jarbough’s attorney also sought to introduce the testimony

                                  4
of Norris El-Attrache. Like Jarbough, El-Attrache is a Syrian
Druze. He was prepared to describe the Syrian government’s
persecution of his family. According to counsel, this evidence
would show “that people similarly situated to [Jarbough] have
disappeared and/or are being killed based on the fact that they are
[D]ruze.” App. 136. The IJ refused to allow it. She reasoned that
El-Attrache’s testimony would effectively require her to “entertain
. . . 2 asylum applications.” App. 136. Nonetheless, Jarbough’s
counsel did submit an affidavit from El-Attrache. In it, El-Attrache
spoke generally about the Druze religion, discussed the persecution
of the Druze by the Syrian government, and stated that “on
Feb[ruary] 4, 1954, [his] father was killed in battle with the Syrian
army.” App. 682-83.

       With these preliminary considerations disposed of, Jarbough
took the stand and testified. During the hearing, the IJ repeatedly
sustained objections that Jarbough’s counsel was asking leading
questions. At one point, there occurred a rather testy exchange
between the IJ and Jarbough’s attorney. Jarbough was describing
the cables he had seen in the intelligence facility’s interrogation
room. Counsel asked, “What kind of cables were these?” App.
193. At this point, the Department of Homeland Security’s
attorney objected on relevance grounds. Jarbough’s attorney
responded, “They’re electrical cables.” 

Jarbough parroted, “Electrical cables.” 

the IJ.
She scolded Jarbough’s attorney and admonished him to “[s]top
giving the answers.” App. 194-98.

        Jarbough’s testimony continued. The next day, the IJ heard
closing arguments and rendered an oral decision. She concluded
that no extraordinary circumstances excused Jarbough’s failure to
comply with the one-year deadline. In the alternative, she found
that Jarbough had not established eligibility for asylum. The IJ
also found him ineligible for withholding of removal and CAT
relief.

       On appeal, the BIA affirmed. It adopted most of the IJ’s
findings and added a few thoughts of its own. Specifically, it
explained in greater detail why the omission by the attorney
Jarbough visited did not constitute an extraordinary circumstance.


                                 5
        This petition for review followed. Jarbough challenges the
BIA’s rejection of his asylum application as untimely, its denial of
withholding of removal, and he also contends that several of the
IJ’s rulings as well as her conduct violated the Due Process Clause.

                                II.

        We consider first Jarbough’s claim that extraordinary
circumstances excused the late filing of his asylum application.
Under 8 U.S.C. § 1158(a)(2)(B), an alien must file an asylum
application within one year of his arrival in the United States. A
late-filed application may be excused if the alien demonstrates “to
the satisfaction of the Attorney General either the existence of
changed circumstances which materially affect the applicant’s
eligibility for asylum or extraordinary circumstances relating to the
delay in filing an application . . . .” 8 U.S.C. § 1158(a)(2)(D).
Immediately after that provision, paragraph (a)(3) states that “[n]o
court shall have jurisdiction to review any determination of the
Attorney General under paragraph (2).” 8 U.S.C. § 1158(a)(3).
Accordingly, in Tarrawally v. Ashcroft, 

(3d Cir.
2003), we held that § 1158(a)(3) stripped us of jurisdiction to
review a “determination that an asylum petition was not filed
within the one year limitations period, and that such period was not
tolled by extraordinary circumstances.” 

       After Tarrawally, however, Congress enacted the REAL ID
Act of 2005. Section 106 of the REAL ID Act restored our
jurisdiction to review “constitutional claims or questions of law
raised upon a petition for review . . . .” REAL ID Act of 2005 §
106(a)(1)(A)(iii), 8 U.S.C. § 1252(a)(2)(D).3

       The jurisdictional grant of § 1252(a)(2)(D) is narrowly
circumscribed. See Saloum v. U.S. Citizenship & Immig. Servs.,

, 242-43 (2d Cir. 2006); Higuit v. Gonzales, 

, 419 (4th Cir. 2006). For instance, it is clear that courts of
appeals continue to have no jurisdiction to review discretionary and
factual determinations presented in petitions for review. See, e.g.,


       3
        We have jurisdiction to determine whether we have
jurisdiction. United States v. Ruiz, 

, 628 (2002).

                                 6
Diallo v. Gonzales, 

, 1281 (10th Cir. 2006); Jean v.
Gonzales, 

, 480 (4th Cir. 2006); Sukwanputra v.
Gonzales, 

, 634 (3d Cir. 2006) (“Despite the special
treatment accorded constitutional claims and questions of law, §
1252(a)(2)(D) does not exempt factual or discretionary challenges
from the jurisdiction-stripping provisions of the INA.”); Mehilli v.
Gonzales, 

, 93 (1st Cir. 2005); Vasile v. Gonzales, 

, 768 (7th Cir. 2005).

       In Sukwanputra, the petitioners claimed they had presented
a question of law as to whether they were entitled to an extension
under § 1158(a)(2)(D). We recognized in that case that petitioners
were, in fact, challenging an exercise of discretion and noted
“[s]uch a claim does not raise a constitutional claim or question of
law covered by the REAL ID Act’s judicial review 

. We concluded “that, despite the changes of the REAL
ID Act, . . . § 1158(a)(3) continues to divest [us] of jurisdiction to
review . . . whether an alien established changed or extraordinary
circumstances that would excuse his untimely filing.” 

in Sukwanputra is in accord with the decisions
of other courts holding that challenges to the BIA’s extraordinary
or changed circumstances determinations do not constitute
“questions of law” within the meaning of § 1252(a)(2)(D). See,
e.g., Ignatova v. Gonzales, 

, 1214 (8th Cir. 2005);
Chacon-Botero v. U.S. Attorney Gen., 

, 957 (11th Cir.
2005); 

. Specifically, courts have
recognized arguments such as that an Immigration Judge or the
BIA incorrectly weighed evidence, failed to consider evidence or
improperly weighed equitable factors are not questions of law
under § 1252(a)(2)(D). See, e.g., Bugayong v. Immigration & Nat.
Serv., 

, 71-72 (2d Cir. 2006); Elysee v. Gonzales, 

, 223-24 (1st Cir. 2006); 

. In
contrast, we have recognized that § 1252(a)(2)(D) confers upon us
jurisdiction over purely legal questions such as whether a particular
offense qualifies as an aggravated felony under the definition set
forth in 8 U.S.C. § 1101(a)(43). See Jeune v. Attorney General,

, 201 (3d Cir. 2007); Park v. Attorney General, 

, 70 (3d Cir. 2006); Bobb v. Attorney General, 

, 217 (3d Cir. 2006); Ng v. Attorney General, 

,
394-95 (3d Cir. 2006) (whether a crime falls within §

                                  7
1101(a)(43)(F) is “a question of pure statutory interpretation.”).

       Petitioners alleging “constitutional claims” under §
1252(a)(2)(D) must, as a threshold, state a colorable violation of
the United States Constitution. See 

;
Martinez-Rosas v. Gonzales, 

, 930 (9th Cir. 2005). In
the present case, Jarbough claims that the extraordinary
circumstances analyses of the IJ and the BIA ignored certain
evidence and contained “clear factual mistakes” that resulted in “a
denial of due process.” See Jarbough Brief 15-16. On that basis,
he asserts that we have jurisdiction to review his “constitutional
claim[].”

        We are not bound by the label attached by a party to
characterize a claim and will look beyond the label to analyze the
substance of a claim. To do otherwise would elevate form over
substance and would put a premium on artful labeling. See New
Jersey v. Dep’t of Health & Human Servs., 

, 1272
(3d Cir. 1981). Accordingly, artful labeling will not confer us with
jurisdiction. See Avendano-Espejo v. Dep’t of Homeland Sec., 

, 505-06 (2d Cir. 2006) (per curiam) (“[P]etitioner’s
attempt to ‘dress up’ his challenge with the language of ‘due
process’ is insufficient to provide our Court with jurisdiction to
review his claim . . . .”); 

(“[W]e [do not]
believe that Saloum’s talismanic invocation of the language of ‘due
process’ itself suffices to provide this Court with jurisdiction to
review petitioner’s claims.”).

       Aside from the constitutional label, Jarbough makes no
attempt to tie his claim of factual errors to the Due Process Clause.
At the core of due process are the requirements of notice and a
meaningful opportunity to be heard. See Mullane v. Cent. Hanover
Bank & Trust Co., 

, 314 (1950). Jarbough does not
argue that the agency denied him notice, a reasonable opportunity
to present evidence, disclosure of fact finding or an individualized
determination on the extraordinary circumstances issue. See
Mudric v. Attorney General, 

, 100 (3d Cir. 2006). His
only claim is that the IJ and the BIA got the facts wrong, and that
these erroneous findings of fact deprived him of due process.

       Jarbough has failed to state a colorable violation of the

                                 8
Constitution. He has simply taken his naked factual challenges and
clothed them in the garb of due process. Recasting challenges to
factual or discretionary determinations as due process or other
constitutional claims is clearly insufficient to give this Court
jurisdiction under § 1258(a)(2)(D). Our holding in this respect is
in accord with the decisions of the other courts of appeals that have
rejected similar challenges labeled as due process claims. See, e.g.,

(no jurisdiction over
argument that IJ employed an erroneous legal standard); 

(no jurisdiction over arguments that IJ failed to
consider certain evidence, incorrectly weighed the evidence and
reached the wrong outcome); 

(arguments
that IJ incorrectly weighed the evidence and failed to consider
certain evidence regarding credibility “fail[ed] to state a colorable
constitutional claim . . . . [S]uch arguments are not properly viewed
as constitutional challenges at all, but instead as simple claims that
substantial evidence did not support the IJ’s credibility finding.”);

(no jurisdiction over argument
that IJ misapplied the facts to the applicable law, noting “traditional
abuse of discretion challenges recast as alleged due process
violations do not constitute colorable constitutional claims”).

       Section 1158(a)(3) explicitly prohibits judicial review of the
discretionary authority committed to the Executive Branch under
§ 1158(a)(2)(D). The REAL ID Act of 2005 created a narrow
exception to this prohibition to permit judicial review over
constitutional claims and questions of law raised in petitions for
review. If we were to review a claim merely because it was
adorned with the label “constitutional claim” or “question of law,”
we would overstep our authority and frustrate Congress’ statutory
design. This we cannot do.

       Garden-variety allegations of factual error such as those
presented here provide no colorable basis for a constitutional
challenge, and Jarbough’s due process label is insufficient to shield
him from the strictures of § 1158(a)(3). We therefore lack
jurisdiction to review the BIA’s extraordinary circumstances
determination.

                                 III.


                                  9
         We do have jurisdiction to review the denial of withholding
of removal. See 

. Under 8 U.S.C.
§ 1231(b)(3)(A), “the Attorney General may not remove an alien
to a country if the Attorney General decides that the alien’s life or
freedom would be threatened in that country because of the alien’s
race, religion, nationality, membership in a particular social group
or political opinion.” It is the applicant’s burden to establish the
threat to life or freedom by a “clear probability.” 

; 8 C.F.R. § 1208.16(b). This standard is satisfied if the
“evidence establish[es] that it is more likely than not that the alien
would be subject to persecution on one of the specified grounds.”
See INS v. Stevic, 

, 429-30 (1984). A finding of past
persecution raises a rebuttable presumption “that the applicant’s
life or freedom would be threatened in the future . . . .” 8 C.F.R. §
1208.16(b)(1)(i); see Gabuniya v. Attorney General, 

,
321 (3d Cir. 2006).

       Whether an applicant “has demonstrated past persecution .
. . is a factual determination reviewed under the substantial
evidence standard.” Gao v. Ashcroft, 

, 272 (3d Cir.
2002). Accordingly, “we may decline to uphold the BIA’s findings
only if the evidence compels a contrary conclusion.” Ahmed v.
Ashcroft, 

, 216 (3d Cir. 2003).

        Jarbough claims that the Syrian government persecuted him
because he is a Druze, and because it believed he held a pro-Israeli
political opinion. The IJ rejected these contentions. The BIA
largely adopted the IJ’s findings and added a few reasons of its
own. We thus review both the BIA’s decision and the IJ’s opinion
to the extent the BIA adopted it. See Miah v. Ashcroft, 

, 439 (3d Cir. 2003).
        At the outset, Jarbough challenges the IJ’s adverse-
credibility determination. The Attorney General, however,
disputes this argument’s premise. See Attorney General Brief 22
(“[T]he immigration judge did not make an adverse credibility
finding.”). Contrary to the Attorney General’s assertion, it seems
clear to us that the IJ made at least a partial adverse-credibility
determination. See App. 89 (“The Court finds that testimony to be
incredible.”). But the BIA did not explicitly adopt the IJ’s
credibility findings, so that portion of her decision is not properly
before us. Abdulai v. Ashcroft, 

, 549 n.2 (3d Cir.

                                 10
2001). We will therefore assume Jarbough was credible for
purposes of this petition.

       Jarbough also challenges the BIA’s determination that his
troubles in Syria did not rise to the level of persecution.
Persecution “is an extreme concept that does not include every sort
of treatment our society regards as offensive.” Fatin v. INS, 

, 1243 (3d Cir. 1993). Abusive treatment and
harassment, while always deplorable, may not rise to the level of
persecution.

       Here, Jarbough testified that Syrian intelligence officers
seized him on two occasions. The first time, the officers placed
Jarbough in an interrogation room for four hours. They threatened
him with wires and electrical cables, screamed at him, and jabbed
his shoulder with their fists. The second time, the officers confined
Jarbough for two days. They cursed, threatened, kicked, shoved,
and pushed him. As a result of this abuse, Jarbough suffered
bruising. He did not go to a doctor, however, as his injuries did not
“require immediate medical intervention.” App. 258.

        There is no doubt that the officers’ behavior was harassing
and intimidating. Our society rightly regards their investigative
tactics as “offensive” and highly improper. See 

. Indeed, under a de novo standard of review, we might well
disagree with the agency’s conclusion that Jarbough failed to show
past persecution. But we are not triers of fact, and Congress
mandates that we leave the agency’s factfinding undisturbed unless
the “evidence compels a contrary conclusion.” 

(emphasis added). Under that deferential standard of
review, we cannot say this record compels a finding of past
persecution for purposes of withholding of removal. As a result,
we must hold that substantial evidence supports the BIA’s denial
of withholding of removal.

                                IV.

        Jarbough also brings a variety of due process challenges to
the IJ’s conduct at the hearing. Aliens have a “right to a full and
fair hearing that allows them a reasonable opportunity to present
evidence on their behalf.” Cabrera-Perez v. Gonzales, 

109, 115 (3d Cir. 2006). To prevail on a due process claim, the
“alien must show substantial prejudice.” See Singh v. Gonzales,

, 541 (3d Cir. 2006).

       First, Jarbough challenges the IJ’s refusal to grant a
continuance. Jarbough asked for a delay to secure the testimony of
Joshua Landis. In our view, the denial did not prevent Jarbough
“from reasonably presenting his case.” See Uspango v. Ashcroft,

, 231 (3d Cir. 2002) (quotations and citations
omitted). The record contains a lengthy article by Mr. Landis, see
App. 515-37, and Jarbough does not argue that Landis’ in-court
testimony would have materially differed from his written work.
As such, we conclude that the IJ’s denial of a continuance did not
deprive Jarbough of due process.

       Second, Jarbough argues that the IJ improperly excluded the
testimony of Norris El-Attrache. Again, we fail to see how this
exclusion denied Jarbough a “reasonable opportunity to present
evidence.” See 

. The record
contains an affidavit by Mr. El-Attrache. Jarbough does not
explain whether or how El-Attrache would have expanded on this
account at the hearing. With El-Attrache’s story already in the
record, the IJ’s exclusion of the testimony was not a due process
violation. See Romanishyn v. Attorney General, 

,
185-86 & n.10 (3d Cir. 2006).

       Third, Jarbough contends that the IJ’s hostility toward his
attorney “curtailed . . . counsel’s ability to ask questions, and . . .
unduly prevented [Jarbough] from providing testimony.” Jarbough
Brief 29. It is clear from the record that Jarbough’s counsel
repeatedly asked Jarbough leading questions and that the IJ
repeatedly admonished him not to do so. See, e.g., App. 161-62
(“Why do you insist on testifying for your client?”); 

ask questions that are not leading.”).

       Jarbough relies upon one particular exchange in support of
his argument. After asking Jarbough about the type of cables at the
Syrian intelligence facility, counsel stated the answer to his own
question: “They’re electrical cables.” App. 193. The IJ became
angry and instructed counsel at length about the impropriety of his
behavior.

                                  12
       When an attorney poses questions to a friendly witness
during a direct examination, it is generally improper for the
attorney to employ leading questions. Cf. Fed. R. Evid. 611(c).
Leading questions are undesirable in this context because of their
suggestive power. The “search for the truth,” Nix v. Whiteside,

, 171 (1986), in our adjudicatory system is best served
when the finder of fact considers the testimony of the friendly
witness based upon his or her recollection, not the testimony of
counsel calling the witness. Suggesting answers to the friendly
witness may “supply a false memory for the witness – that is, to
suggest desired answers not in truth based upon real recollection.”
3 John Henry Wigmore, Evidence § 769, at 154 (Chadbourne Rev.
1970). See Hall v. Clifton Precision, 

, 531 (E.D.
Pa. 1993) (“It should go without saying that lawyers are strictly
prohibited from making any comments, either on or off the record,
which might suggest or limit a witness’s answer to an
unobjectionable question.”).

        In this case, Jarbough’s attorney did not just ask a leading
question regarding the cables; he announced the expected answer
to his question. In this instance, it was clear that it was the attorney
who was testifying. There was nothing erroneous (much less
unconstitutional) about the IJ’s actions. The IJ’s rebuke did not
“unduly prevent[] [Jarbough] from providing testimony”; it
prevented his lawyer from testifying for him.

      In sum, none of the IJ’s rulings or conduct deprived
Jarbough of the process he was constitutionally due.
                              V.

        For these reasons, we will dismiss the petition for review in
part, and deny it in part.




                                  13