Ashraf Mousa Said Hmidan v. U.S. Attorney General

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-14275
Non-Argument Calendar
____________________
ASHRAF MOUSA SAID HMIDAN,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A095-533-552
____________________
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2 Opinion of the Court 22-14275
____________________
No. 22-14276
Non-Argument Calendar
____________________
ASHRAF MOUSA SAID HMIDAN,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A095-533-552
____________________
Before WILLIAM PRYOR , Chief Judge, and ABUDU and ANDERSON,
Circuit Judges.
PER CURIAM:
Ashraf Mousa Said Hmidan, a native and citizen of the Pal-
estinian Territories, petitions for review of the denial of his
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22-14275 Opinion of the Court 3
application for adjustment of status under section 245 of the Immi-
gration and Nationality Act, 8 U.S.C. § 1255(a). The Board of Im-
migration Appeals dismissed Hmidan’s appeal and affirmed the im-
migration judge’s finding that he was inadmissible under section
212(a)(3)(B)(i)(I) of the Act, 8 U.S.C. § 1182(a)(3)(B)(i)(I), for having
“engaged in a terrorist activity,” id., when he threw rocks and Mol-
otov cocktails at Israeli soldiers during the Palestinian intifadas.
Hmidan challenges the immigration judge’s decisions to limit ex-
pert testimony about his subjective intent and to exclude his ex-
pert’s second addendum. We deny the petition.
We review our subject matter jurisdiction de novo. Jeune v.
U.S. Att’y Gen., 810 F.3d 792, 799 (11th Cir. 2016). Although we lack
jurisdiction to review the denial of discretionary relief, 8 U.S.C.
§§ 1182, 1252(a)(2)(B), we have jurisdiction to review constitu-
tional claims and questions of law, id. § 1252(a)(2)(D). Patel v. Gar-
land, 142 S. Ct. 1614, 1623, 1627 (2022).
Applicants for adjustment of status bear the burden of prov-
ing that they satisfy the requirements for eligibility and merit a fa-
vorable exercise of discretion. 8 U.S.C. § 1229a(c)(4)(A). One eligi-
bility requirement is that the applicant must be admissible. Id.
§ 1255(a). A noncitizen who “has engaged in a terrorist activity” is
inadmissible. Id. § 1182(a)(3)(B)(i)(I). “Terrorist activity” is defined
as any activity that is unlawful “under the laws of the place where
it is committed” and includes the use of any “explosive, firearm, or
other weapon or dangerous device . . . with intent to endanger,
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4 Opinion of the Court 22-14275
directly or indirectly, the safety of one or more individuals or to
cause substantial damage to property.” Id. § 1182(a)(3)(B)(iii)(V)(b).
An immigration judge has the authority to “receive evi-
dence[] and interrogate, examine, and cross-examine” the nonciti-
zen and witnesses during removal proceedings. Id. § 1229a(b)(1).
The regulations provide that “immigration judges shall exercise
their independent judgment and discretion and may take any ac-
tion consistent with their authorities under the Act and regulations
that is appropriate and necessary for the disposition” of the cases
before them. 8 C.F.R. § 1003.10(b). Immigration judges have
“broad discretion to admit and consider relevant and probative ev-
idence,” including witness testimony. Matter of D-R-, 25 I. & N.
Dec. 445, 458 (BIA 2011); Matter of J-G-T-, 28 I. & N. Dec. 97, 101–
02 (BIA 2020) (“Expert testimony in immigration proceedings is rel-
evant if it will help the Immigration Judge understand the evidence
or decide a fact in issue.”).
Hmidan argues that the immigration judge erred by limiting
the scope of his expert witness, Dr. Shaul Gabbay, but we disagree.
The immigration judge acted within her broad discretion by limit-
ing the scope of Dr. Gabbay’s testimony to matters within his ex-
pertise and personal knowledge. See Matter of D-R-, 25 I. & N. Dec.
at 458. Hmidan admitted to throwing stones and Molotov cocktails
during the second intifada but insisted that he never intended to
harm Israeli soldiers. At Hmidan’s first hearing, Dr. Gabbay, a pro-
fessor of Middle Eastern studies, testified that Hmidan’s actions
were not acts of terrorism because they were part of the greater
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22-14275 Opinion of the Court 5
struggle for self-determination. But Dr. Gabbay acknowledged that
he never met Hmidan before the hearing and did not interview him
before writing his expert report. Dr. Gabbay also acknowledged
that only Hmidan could testify about his intent. The immigration
judge found that Dr. Gabbay could not testify about Hmidan’s ac-
tions or intent.
Although the immigration judge granted Hmidan a contin-
uance to find another expert witness, Hmidan instead sought to
present more testimony from Dr. Gabbay at his final hearing. He
explained that Dr. Gabbay had since traveled to Israel on vacation
and interviewed Israeli soldiers allegedly present during the inci-
dents. Dr. Gabbay admitted that his interviews were not con-
ducted using his usual research methods and stated that he could
not reveal the soldiers’ identities. Because the issue of Hmidan’s
subjective intent was outside of Dr. Gabbay’s area of expertise and
his interviews were unreliable, the immigration judge did not
abuse her discretion by excluding Dr. Gabbay’s testimony. See id.
Hmidan argues that the immigration judge erred by exclud-
ing as untimely Dr. Gabbay’s second addendum to his expert re-
port, but it was Dr. Gabbay’s first addendum, not his second, that
the immigration judge excluded as untimely. Hmidan submitted
the second addendum after the final hearing. The second adden-
dum, which was nearly identical to the first, contained Dr. Gab-
bay’s statement that he stood by his analysis, as well as five new
photographs of an October 2000 protest site that he took during his
2016 vacation. The immigration judge found that “the documents
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6 Opinion of the Court 22-14275
provide context[, but] nothing in them indicates that [Hmidan] was
not engaged in terrorist activity.” The Board construed this state-
ment to mean that the immigration judge decided “not to admit”
the second addendum based on her weighing of the evidence.
The immigration judge did not abuse her broad discretion.
See Matter of J-G-T-, 28 I. & N. Dec. at 102; Matter of D-R-, 25 I. & N.
Dec. at 458. Dr. Gabbay acknowledged that he did not rely on his
usual research methods. And his photographs of a single protest
location, taken more than a decade after the second intifada, were
not probative of the issue of Hmidan’s subjective intent.
We DENY Hmidan’s petition for review.
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