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Malu v. United States Attorney General

United States Court of Appeals, Eleventh Circuit

August 19, 2014

BIUMA CLAUDINE MALU, a.k.a. Bima Claudien Malu, Petitioner,
v.
U.S. ATTORNEY GENERAL, Respondent

Page 1283

Petition for Review of a Decision of the Board of Immigration Appeals. Agency No. A200-278-578.

For Biuma Claudine Malu, a.k.a.: Bima Claudien Malu, Petitioner: Peter Douglas Keisler, Sidley Austin, LLP, Washington, DC; Claudia Valenzuela Rivas, Keren Zwick, National Immigrant, Justice Center, Chicago, IL.

For U.S. Attorney General, Respondent: David V. Bernal, Paul Fiorino, Tracey N. McDonald, Krystal Samuels, U.S. Department of Justice, Civil Division, Washington, DC; Alfie Owens, DHS/ICE Office of Chief Counsel - ATL, Atlanta, GA.

For National Center For Lesbian Rights, East Bay Community Law Center, Immigration Equality, Georgia Asylum & Immigration Network, Public Law Center, Amicus Curiaes: John H. Fleming, Michael K. Freedman, Sutherland Asbill & Brennan, LLP, Atlanta, GA; Angela Perone, Christopher F. Stoll, National Center For Lesbian Rights, San Francisco, CA.

For Florence Immigrant & Refugee Rights Project, Amicus Curiae: Michael K. Freedman, Sutherland Asbill & Brennan, LLP, Atlanta, GA.

Before TJOFLAT and PRYOR, Circuit Judges, and SCOLA,[*] District Judge.

OPINION

Page 1284

PRYOR, Circuit Judge.

This petition for review presents an issue about exhaustion of remedies that has divided our sister circuits: whether an alien must contest her status as an aggravated felon in an expedited removal proceeding before raising that argument before a federal court of appeals. Biuma Malu argues that she should not have been subject to expedited removal proceedings because she did not commit an " aggravated felony," 8 U.S.C. § 1101(a)(43). Malu also contests the denial of her application for withholding of removal and protection under the Convention Against Torture. She contends that the Board of Immigration Appeals erred when it denied her application. That application alleged that, if she were to return to the Democratic Republic of Congo, she would suffer persecution and torture as a result of her relationship with her uncle and on account of her sexual orientation. Because we conclude that Malu failed to exhaust her argument that she did not commit an aggravated felony, id. § 1252(d)(1), and that the Board committed no reversible errors, we deny her petition for review.

Page 1285

I. BACKGROUND

Malu was born in Kinshasa, Democratic Republic of Congo, and lived there for more than two decades before she fled to the United States in November 2000. When Malu was 11 years old, her parents sold her to her uncle in exchange for a bride price. According to Malu, her uncle, a high-ranking officer in the Congolese military, raped her, impregnated her, put her head in the toilet, urinated on her, burned her with cigarettes, stabbed her, and pierced her with a screwdriver. By age 12, Malu had aborted three pregnancies. When she became pregnant a fourth time at age 12, her doctor instructed her to keep the baby because she would die if she had another abortion. According to Malu, she miscarried the fourth child during a visit to parents' home when a group of rebel soldiers invaded the home, killed two of her brothers and two of her sisters, beat her father, and raped Malu and her mom.

Malu escaped the Congo in 2000 when her uncle left her with her parents so that Malu could be circumcised, a procedure also commonly known as female genital mutilation. From the Congo, Malu traveled by boat and by car to Gabon, then Cameroon, and finally to Nigeria. From Nigeria, she traveled by ship to Canada and entered the country using a Nigerian passport. She crossed into the United States in the trunk of the car of her smuggler's cousin. She settled in Georgia, near Atlanta.

When Malu first came to the United States, she married a man, but the two later separated. Malu now identifies as a lesbian and dresses as a man. In 2005, she met her partner, April Milliner, at church. They lived together with Milliner's two twin daughters. Together, they managed a car wash.

While in the United States, Malu committed two crimes in violation of Georgia law. In 2009, the state charged her with cruelty to children after arguing with Milliner in front of the twin girls. And in 2011, the state charged her with simple battery. The Department of Homeland Security classified her conviction for simple battery as an aggravated felony, id. § 1101(a)(43)(F), and initiated expedited removal proceedings, id. § 1228.

The Department served Malu with a notice of intent to issue a final administrative removal order, which served as the charging document for her removal, 8 C.F.R. § 1238.1(b)(2). The notice of intent allowed Malu to contest her removability. The notice stated that Malu " must respond to the . . . charges in writing . . . within 10 calendar days" and that her response could " rebut the charges," " request an opportunity to review the government's evidence," " admit deportability," " designate the country to which [she chose] to be removed," and seek withholding of removal or protection under the Convention Against Torture. Malu responded to the notice of intent by checking a box requesting withholding of removal because she feared persecution, but she failed to contest the classification of her crime as an aggravated felony. The Department issued the removal order on September 28, 2011.

After issuing the removal order, an immigration officer conducted a reasonable fear interview and concluded that Malu expressed reasonable fear of persecution and torture if she were to return to the Congo. The officer concluded that Malu suffered past persecution and had a reasonable fear of future persecution on account of her membership in a particular social group: Congolese women viewed as property by virtue of their position as wives. The officer further concluded that

Page 1286

Malu established a reasonable fear of torture because she is a lesbian. The officer referred Malu's case to an immigration judge to decide whether Malu was entitled to withholding of removal or protection under the Convention Against Torture.

Malu appeared pro se before the immigration judge, who denied her application. Both she and Milliner testified. She also submitted evidence about Congolese society and government, in addition to letters authored by Malu and her friends explaining Malu's past and her role in her Atlanta community. The immigration judge discredited Malu's testimony that she was a Congolese national. The immigration judge also ruled that, even if she could prove her nationality, she failed to corroborate her allegation of past persecution with a reasonably obtainable medical evaluation of her scars, evidence establishing the identity of her uncle, and evidence substantiating her family's horrific encounter with the rebel soldiers. The immigration judge also found that Malu would not suffer future persecution in the Congo on account of her sexual orientation.

Malu appealed to the Board of Immigration Appeals, which dismissed her appeal. The Board agreed with the immigration judge that Malu failed to corroborate her allegations of past persecution and could not establish future persecution. But the Board refused to adopt two conclusions of the immigration judge: the Board did not adopt the immigration judge's rejection of Malu's purported nationality and did not adopt the immigration judge's conclusion that the Department rebutted a presumption that Malu would suffer future persecution. The ...


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