Jaber Haddad v. Merrick Garland

J
                              NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                        JUL 8 2021
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

JABER HADDAD,                                   No.    18-72365

                Petitioner,                     Agency No. A070-093-171

 v.
                                                MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,

                Respondent.


JABER HADDAD, AKA Jaber Ayed                    No.    19-71977
Haddad,
                                                Agency No. A070-093-171
                Petitioner,

 v.

MERRICK B. GARLAND, Attorney
General,

                Respondent.

                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                               Submitted May 3, 2021**

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
                               Pasadena, California

Before: OWENS and LEE, Circuit Judges, and SIMON,*** District Judge.

      Jaber Haddad overstayed his immigration visa and was later convicted of

assault with a semi-automatic firearm. In his removal proceedings, Haddad sought

protection under the Convention Against Torture (CAT). The IJ denied his claim,

and he appealed to the BIA. Then things got procedurally complicated.

      In an August 3, 2018 decision, the Board of Immigration Appeals (BIA)

affirmed the IJ’s denial. But prior to the August 3 decision, Haddad had submitted

a motion to terminate, arguing that his initial Notice to Appear was defective and

that the IJ had consequently lacked jurisdiction to hear his claim. The BIA thus

issued an amended decision on November 30, 2018. In that decision, the BIA

expressly vacated its August 3 decision, re-denied Haddad’s CAT claim, and denied

his new jurisdictional argument. Notably, Haddad petitioned for review of the BIA’s

(now-vacated) August 3 decision, but he never sought review of the November 30

decision.

      Separately, Haddad filed a motion to reopen with the BIA, arguing that his

counsel before the IJ had been ineffective. On July 10, 2019, the BIA issued a



without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
             The Honorable Michael H. Simon, United States District Judge for the
District of Oregon, sitting by designation.

                                        2
decision rejecting this argument, which Haddad appealed.

      We hold that we lack jurisdiction to hear either Haddad’s August 3, 2018 or

November 30, 2018 decisions, and we further hold that Haddad has waived any

argument related to the BIA’s July 10, 2019 decision.

      1. This court determines the existence of its own jurisdiction de novo.

Saavedra-Figueroa v. Holder, 

625 F.3d 621

, 623–24 (9th Cir. 2010) (citing Luu–Le

v. INS, 

224 F.3d 911

, 914 (9th Cir. 2000)). “In order for this court to reverse the

BIA with respect to a finding of fact, the evidence must compel a different

conclusion from the one reached by the BIA.” Zheng v. Holder, 

644 F.3d 829

, 835

(9th Cir. 2011).

      2. In the absence of a final order of removal, this court lacks jurisdiction, even

in a case where a petitioner raises a constitutional claim or question of law. Alcala

v. Holder, 

563 F.3d 1009

, 1016 (9th Cir. 2009). Although the BIA’s August 3

decision was final when Haddad initially appealed, “[o]nce a petition for review has

been filed, federal court jurisdiction is divested [] where the BIA subsequently

vacate[d] or materially changes the decision under review.” Plasencia-Ayala v.

Mukasey, 

516 F.3d 738

, 745 (9th Cir. 2008) overruled on other grounds by

Marmolejo-Campos v. Holder, 

558 F.3d 903

 (9th Cir. 2009) (en banc).

      The BIA “subsequently vacated” its August 3 decision, so under Plasencia-

Ayala, we lack jurisdiction over that decision. 

Id.

 And Haddad never appealed from


                                          3
the BIA’s November 30 decision. Accordingly, we lack jurisdiction to hear either

of these appeals.1

      3.     Finally, Haddad in his brief to this court never raised any argument

about his July 10 ineffective assistance of counsel claim. So he has waived any right

to challenge the BIA’s decision. See Martinez-Serrano v. INS, 

94 F.3d 1256

, 1259-

60 (9th Cir. 1996).

      DENIED.




1
 Haddad’s claim also fails on the merits. Substantial evidence supports the BIA’s
denial of CAT relief, and Haddad’s jurisdictional argument fails in light of
Karingithi v. Whitaker, 

913 F.3d 1158

, 1160–62 (9th Cir. 2019), cert. denied sub
nom. Karingithi v. Barr, 

140 S. Ct. 1106

 (2020).

                                         4

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