     Case: 18-60543       Document: 00515261811         Page: 1     Date Filed: 01/07/2020




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit


                                       No. 18-60543
                                                                                  FILED
                                                                            January 7, 2020
                                                                             Lyle W. Cayce
REZA HEIDARI,                                                                     Clerk

               Petitioner

v.

WILLIAM P. BARR, U. S. ATTORNEY GENERAL,

               Respondent




                        Petition for Review of an Order of the
                           Board of Immigration Appeals
                                BIA No. A094 585 631


Before OWEN, Chief Judge, and BARKSDALE and DUNCAN, Circuit Judges.
PER CURIAM:*
       Primarily at issue is whether our court has jurisdiction over a petition
for review by Reza Heidari, whose criminal history triggers 8 U.S.C.
§ 1252(a)(2)(C)’s jurisdictional bar. The petition makes a factual challenge to
the Board of Immigration Appeals’ (BIA) affirming an Immigration Judge’s (IJ)
denying a motion to reopen removal proceedings for deferral of removal under
the Convention Against Torture (CAT). DISMISSED.


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
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                                 No. 18-60543
                                       I.
      Heidari, an Iranian citizen, was admitted to the United States as a
refugee in 2004. He became a lawful permanent resident in 2006.
      In May 2012, however, he pleaded guilty to attempted distribution of
opium, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and was sentenced to,
inter alia, 18-months’ imprisonment. The Department of Homeland Security
then charged Heidari with two grounds of removability based on his conviction:
having been convicted of an aggravated felony, pursuant to 8 U.S.C.
§ 1227(a)(2)(A)(iii); and having been convicted of a controlled-substance
offense, pursuant to 8 U.S.C. § 1227(a)(2)(B)(i).
      During removal proceedings, in September 2013, Heidari conceded his
removability but sought its deferral under the CAT. An IJ found Heidari did
not meet his CAT burden of showing it was more likely than not he would be
tortured if removed to Iran: his testimony was insufficient; and he failed to
provide reasonably available corroborating evidence. Consequently, the IJ
denied Heidari’s requested relief and ordered him removed to Iran.
      Heidari waived his right to appeal to the BIA. (He was not removed to
Iran and was released from U.S. Immigration and Customs Enforcement’s
custody in December 2013. The record is unclear as to why he has not been
removed; apparently the requisite Iranian travel document is lacking.)
      Almost four years later, in July 2017, Heidari moved to reopen his
removal proceedings for deferral of removal under the CAT, based on claimed
new and previously unavailable evidence. The IJ denied this motion on two
independent grounds.
      First, after noting a movant must “make a prima facie showing that
there is a reasonable likelihood that the relief sought would be granted at the
reopened hearing”, the IJ found the record evidence did not establish prima


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                                  No. 18-60543
facie eligibility for relief. As in 2013, Heidari failed to include reasonably
available corroborating evidence with his motion.
      Second, noting that a motion to reopen may be filed after the normal 90-
day filing deadline “if the basis of the motion is to apply for asylum,
withholding of removal, or protection under the [CAT] . . . based on changed
country conditions arising in the country of nationality or the country to which
removal has been ordered”, the IJ found Heidari had not shown changed
country conditions in Iran, as required, to permit his untimely filing. Instead,
circumstances Heidari highlighted—his “conversion to Christianity; his
marriage to a U.S. citizen and the subsequent birth of his son; [his] increased
participation in the U.S. in Iranian political activities; and an Iranian arrest
warrant, purporting to show [he] was convicted of counter-revolutionary
activity and sentenced to 12 years”—were personal to him.
      Heidari challenged the IJ’s decision on appeal to the BIA. In July 2018,
the BIA adopted and affirmed the IJ’s decision. In doing so, the BIA agreed
with the IJ that: Heidari’s evidence did not establish prima facie eligibility for
deferral of removal under the CAT; and his untimely motion to reopen removal
proceedings was not, as required, based on changed country conditions in Iran.
                                       II.
      Heidari filed the instant petition in August 2018, asserting the BIA erred
in affirming the IJ’s denial of his motion to reopen removal proceedings. For
the following reasons, we lack jurisdiction to review the challenged decision.
                                       A.
      We determine our jurisdiction to review a BIA decision de novo.
Rodriguez v. Holder, 705 F.3d 207, 210 (5th Cir. 2013) (citation omitted). And,
pursuant to 8 U.S.C. § 1252(a)(2)(C), “no court shall have jurisdiction to review
any final order of removal against an alien who is removable by reason of
having committed a criminal offense covered in section[s] . . . 1227(a)(2)(A)(iii)
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                                  No. 18-60543
[aggravated felony], (B) [controlled-substance offense], (C), or (D) of this title”.
8 U.S.C. § 1252(a)(2)(C). On the other hand, pursuant to § 1252(a)(2)(D), we
may review “constitutional claims or questions of law raised upon a petition
for review”, even when, as in this instance, § 1252(a)(2)(C) otherwise precludes
jurisdiction. See 8 U.S.C. § 1252(a)(2)(D).
                                         1.
      Although Heidari concedes his 2012 conviction would normally subject
him to § 1252(a)(2)(C)’s jurisdictional bar, he disputes whether the bar extends
to petitions for review of denied motions to reopen removal proceedings for
deferral of removal under the CAT.            Our court has held, however, that
§ 1252(a)(2)(C)’s jurisdictional bar applies to petitioners seeking to reopen
removal proceedings, see Zhong Qin Yang v. Sessions, 728 F. App’x 376, 376–
77 (5th Cir. 2018) (per curiam), and to petitioners seeking deferral of removal
under the CAT, see Siwe v. Holder, 742 F.3d 603, 612–13 (5th Cir. 2014).
                                         2.
      Prima facie eligibility for deferral of removal under the CAT is a factual
determination, reviewed for substantial evidence. See Chen v. Gonzales, 470
F.3d 1131, 1134 (5th Cir. 2006) (citation omitted). Heidari, therefore, does not
present the requisite constitutional claim or question of law permitting, under
§ 1252(a)(2)(D), judicial review of the BIA’s finding on this issue. See, e.g.,
Zhong Qin Yang, 728 F. App’x at 376–77 (“Because [petitioner] was removable
as an alien convicted of an aggravated felony and because his argument [that
he established prima facie eligibility for CAT relief] amounts to a challenge of
the BIA’s factual determination, we lack jurisdiction to consider [his] petition.”
(citations omitted)); Siwe, 742 F.3d at 613 (“[B]ecause [petitioner] has an
aggravated felony conviction, [§§ 1252(a)(2)(C)–(D)] limit[] our jurisdiction in
this case to a review of questions of law and constitutional challenges. . . . As
[§§ 1252(a)(2)(C)–(D)] prevent[] us from reviewing such factual determinations
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                                 No. 18-60543
[as whether petitioner is more likely than not to be tortured if removed], . . .
we dismiss [the] petition for review as to the CAT.” (citations omitted)).
                                       B.
      Needless to say, because we lack jurisdiction to review whether Heidari
established prima facie eligibility for deferral of removal under the CAT, we do
not reach other issues raised in his petition. See Mendias-Mendoza v. Sessions,
877 F.3d 223, 227–28 (5th Cir. 2017) (holding movant’s “not establish[ing] a
prima facie case for the underlying substantive relief sought” an independently
sufficient ground for the BIA to deny a motion to reopen removal proceedings
(citations omitted)).
                                      III.
      For the foregoing reasons, the petition is DISMISSED.




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