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Paul Kiorkis v. Erich. Holder

February 28, 2011


Petition for Review of an Order of the Board of Immigration Appeals. No. A046 101 699.

The opinion of the court was delivered by: " Cudahy, Circuit Judge.


Before CUDAHY and ROVNER, Circuit Judges, and ADELMAN, District Judge.

In 2007, the Department of Homeland Security placed Paul Kiorkis, a Lebanese citizen who had been legally residing in the United States "The Honorable Lynn Adelman, District Judge for the Eastern District of Wisconsin, sitting by designation. for over a decade, into removal proceedings due to his prior conviction for possession of a controlled substance. Kiorkis conceded that he was removable, but filed an application seeking asylum and other forms of relief. An immigration court denied his request for asylum after conducting a full merits hearing, finding that Kiorkis had failed to establish that he had a well-established fear of future persecution on the basis of a statutorily-protected ground. Kiorkis appealed the immigration court's decision to the Board of Immigration Appeals (BIA). A one-member panel of the Board denied Kiorkis's appeal and affirmed the immigration court's analysis in its entirety. Kiorkis filed an appeal with this court, alleging that the immigration court and the Board failed to consider all of his future persecution claims. We affirm the decisions below.

I. Background

Paul Kiorkis is an Assyrian Christian who was born in Beirut, Lebanon in 1984. Twelve years later, Kiorkis-along with his father, mother and four siblings-obtained an immigrant visa and entered the United States as lawful permanent residents. After moving to the United States, the Kiorkis family settled in the greater Chicago area and, except for a few members who have relocated to Michigan, remain in Illinois to this day. Over the past 14 years, all of the Kiorkis family members, except the appellant, have succeeded in obtaining full U.S. citizen-ship.

After immigrating to the United States, Kiorkis remained a lawful permanent resident in good standing with the law for several years. Eventually, however, Kiorkis ran afoul of the law. In 2003, he pleaded guilty to unauthorized possession of a controlled substance and was sentenced to two years of probation, which it appears he completed without incident. This conviction came back to haunt Kiorkis in 2007 when he applied for naturalization. When reviewing Kiorkis's application, the Department of Homeland Security (DHS) dis-covered his prior conviction and used it as grounds for denying his application. DHS also instituted removal proceedings against Kiorkis at this time, seeking to remove him from the United States pursuant to section 237(a)(2)(B)(I) of the Immigration and Nationality Act (INA). 8 U.S.C. § 237(a)(2)(B)(I) (providing for the removal of aliens who have been convicted for violating controlled substance laws).

In March 2008, Kiorkis appeared for his initial hearing before the immigration court and was granted an extension so that he could obtain representation. In August 2008, Kiorkis failed to appear at the second hearing and the court ordered him in absentia removed. The court rescinded its order upon Kiorkis's timely filing of a motion to reopen and continued the hearing to January 2009. At this hearing, Kiorkis conceded that he was removable.

In February 2009, Kiorkis submitted an application for asylum, withholding of removal and protection under the Convention Against Torture. In his asylum application, Kiorkis stated that certain aspects of his identity made him a likely target of future persecution at the hands of Hezbollah and the Lebanese government. In April 2009, Immigration Judge Ipema presided over a merits hearing concerning his application. At the conclusion of the hearing, Judge Ipema denied all of Kiorkis's requests and ordered his removal to Lebanon.

In May 2009, Kiorkis appealed Judge Ipema's order to the BIA. Two months later the BIA determined that the transcript from Kiorkis's hearing contained too many indiscernible notations to permit appellate review and remanded the case for further consideration. In September 2009, Immigration Judge Kessler presided over a second merits hearing regarding Kiorkis's claims. At the conclusion of the hearing, Judge Kessler granted Kiorkis's request for voluntary departure, but denied all of Kiorkis's other requests for relief.

Kiorkis filed a timely appeal from Judge Kessler's decision with the BIA. In January 2010, after receiving briefing from both parties, the BIA affirmed the decision below and dismissed the appeal. Kiorkis asks this court to review the BIA's decision, alleging that both the BIA and Judge Kessler erred in denying his requests for relief.

II. Discussion

Because the BIA dismissed Kiorkis's appeal in a single-member opinion that agreed with the immigration judge's analysis, the immigration judge's opinion "as supplemented by the Board's opinion becomes the basis of review." Raghunathan v. Holder, 604 F.3d 371, 378 (7th Cir. 2010). Before analyzing the merits of each of Kiorkis's claims, however, we must first consider the extent to which we have jurisdiction over this appeal. Kiorkis has conceded that he is removable from the United States due to his commission of a drug-related criminal offense. When an individual is removable on such grounds, section 1252(a)(2)(C) of the INA severely curtails our ability to review the decisions of the immigration court and the BIA. 8 U.S.C. § 1252(a)(2)(C) (stating that "no court shall have jurisdiction to review any final order of removal against an alien who is re-movable by reason of having committed" certain criminal offenses); see also Aguilar-Mejia v. Holder, 616 F.3d 699, 703 (7th Cir. 2010). While we are prohibited completely from questioning the factual determinations made by either body, a subsequent provision of the INA states that we retain the authority to review the agency's determinations for legal errors. 8 U.S.C. § 1252 (a)(2)(D) (stating that courts retain jurisdiction to hear appeals raising "constitutional claims or questions of law"); see also Khan v. Filip, 554 F.3d 681, 688 (7th Cir. 2009); Li Fang Huang v. Mukasey, 534 F.3d 618, 620 (7th Cir. 2008). We review the legal determinations of the immigration court and the BIA de novo, with deference to the agency if the issue involves an ambiguous section of the INA or an interpretation of agency regulations. INS v. Aguirre-Aguirre, 526 U.S. 415, 424 (1999); Auer v. Robbins, 519 U.S. 452, 461-62 (1997).

On appeal, Kiorkis alleges that the immigration court and the BIA erred in three distinct ways: (1) they failed to acknowledge his Hezbollah-related fear of future 6 No. 10-1397 persecution claims; (2) they ignored his fear of future persecution claims that were not related to his religion; and (3) they applied the wrong ...

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