Abubakah Chiko Kromah v. U.S. Attorney General

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-14582
Non-Argument Calendar
____________________
ABUBAKAH CHIKO KROMAH,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A077-548-599
____________________
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2 Opinion of the Court 20-14582
Before WILLIAM PRYOR, Chief Judge, WILSON and
ANDERSON, Circuit Judges.
PER CURIAM:
Abubakah Chiko Kromah, a native and citizen of Liberia, pe-
titions for review of orders affirming the denial of relief under the
United Nations Convention Against Torture and Other Cruel, In-
human, or Degrading Treatment or Punishment, 8 C.F.R.
§ 1208.17, and denying his motion to remand and to terminate his
removal proceedings. Kromah has abandoned any challenge he
could have made to the denial of his application for withholding of
removal.
See Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1286 n.3
(11th Cir. 2003). The Board of Immigration Appeals affirmed the
finding of the immigration judge that Kromah’s fear of torture was
speculative. The Board also denied Kromah’s motion to remand
for failure to make a prima facie case that he was a citizen of the
United States.
See 8 U.S.C. § 1432(a)(5) (repealed 2000). Kromah
and immigration law professors, as amici curiae, move this Court
to transfer Kromah’s removal proceedings to a district court to de-
termine whether he became a citizen of the United States through
his mother’s naturalization.
See id. § 1252(b)(5)(B). We deny
Kromah’s motion and his petition for review.
In 1986, three-year-old Kromah entered the United States as
a non-immigrant visitor. In 1999, Kromah’s mother became a nat-
uralized citizen. She applied for citizenship for Kromah, but in
2002, the Immigration and Naturalization Service denied his
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20-14582 Opinion of the Court 3
application. The Service determined that Kromah did not derive
citizenship from his mother because he was “not admitted as a law-
ful permanent resident nor did [he] attain lawful permanent resi-
dent status subsequent to [his] entry” to the United States.
In 2012, Kromah was convicted of conspiring to commit and
of committing bank fraud. 18 U.S.C. §§ 371, 1344. The Department
of Homeland Security charged Kromah as removable as a nonciti-
zen who had been convicted of an aggravated felony. 8 U.S.C.
§§ 1227(a)(2)(A)(iii), 1101(a)(43)(M), (U). Kromah contested re-
movability and applied for withholding of removal and for deferral
of removal under the Convention.
In 2017, Kromah was convicted of conspiring to commit ac-
cess device fraud and of aggravated identity theft, 18 U.S.C.
§§ 1029, 1028A, and imprisoned in Virginia. In 2019, after an asy-
lum officer referred Kromah’s applications to an immigration
court, the Department transferred Kromah to a prison in Georgia.
The Department moved for a change of venue, and an immigra-
tion judge transferred Kromah’s removal proceedings to Georgia.
Kromah sought relief under the Convention on the ground
that it was likely he would be tortured or killed if he returned to
Liberia. He alleged a fear of harm from families of the victims of
atrocities committed by his uncle, Alhaji Kromah, who led the
United Liberation Movement of Liberia for Democracy during the
Liberian Civil War. Kromah also alleged a fear of harm from the
family and supporters of the former President of Liberia, whose
political party was still in power, and of his son, Chuckie Taylor,
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4 Opinion of the Court 20-14582
who was convicted in Europe of torturing Kromah’s uncle and
cousin.
The immigration judge denied Kromah’s application for re-
lief under the Convention and reinstated the order removing him
to Liberia. The immigration judge found that Kromah’s fear of tor-
ture was grounded in “conjecture” and discounted his documen-
tary evidence from 2010 through 2012 as “outdated.” The immi-
gration judge based his decision on Kromah and his family’s testi-
mony that his uncle remained in Liberia unharmed and on the 2019
Human Rights and Country Reports, which stated that the Libe-
rian government had been reluctant to prosecute suspected war
criminals from the Liberian civil war, its law specifically prohibited
torture, and there were no political prisoners in Liberia or reports
of disappearances by or on the behalf of government officials. The
reports also stated that there were no reports of torture by govern-
ment officials and that the Liberian authorities investigated at least
two claims of guards mistreating prisoners. In addition, the reports
stated that the president of Liberia launched an investigation into
the shooting of protestors, which resulted in the resignation of sen-
ior officers and the criminal prosecution of four officers, and that
officials thwarted an attempt by members of the ruling party, the
Coalition for Democratic Change, to accost a government official
who was on the party blacklist.
Kromah appealed to Board and moved to remand his pro-
ceedings to an immigration court in Virginia. He maintained that
he faced a clear probability of torture if he were to return to Liberia.
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20-14582 Opinion of the Court 5
As grounds to remand, Kromah argued, for the first time, that he
was entitled to “derivative citizenship” under former section
1432(a)(5) of the Immigration and Nationality Act because he “re-
sided permanently” in the United States after his mother’s natural-
ization. Kromah also argued that he was prejudiced by the change
in venue. He asked the Board to transfer his removal proceedings
from the Eleventh Circuit, where precedent “foreclosed” his legal
argument, to the Fourth Circuit, where the issue had not been de-
cided.
The Board denied Kromah’s motion and dismissed his ap-
peal. The Board ruled “that remand of the record, to the original
Immigration Court or to a different Immigration Court upon a
transfer of venue [would be] [in]appropriate” because Kromah
“never acquired status as a lawful permanent resident of the United
States” as required by “former section 321(a)(5) of the Act,” 8
U.S.C. § 1432(a)(5). And “in the absence of any binding authority
from the Eleventh or Fourth Circuit invalidating [the] statutory re-
quirement, [the Board] conclude[d] that remand of the record to
further consider whether [Kromah] [could] establish . . . citi-
zen[ship] [was] not warranted.” The Board also affirmed the immi-
gration judge’s finding that Kromah had not “carried his burden to
establish prima facie eligibility for deferral of removal under the
Convention Against Torture, given the limited evidence regarding
the likelihood that he would face future harm rising to the level of
torture by or with the consent and/or acquiescence of an author-
ized official.”
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6 Opinion of the Court 20-14582
Kromah makes alternative arguments for relief. Kromah ar-
gues that the text and structure of former section 1432(a)(5) evi-
dences that the terms “lawful admission” and “begins to reside per-
manently” have different, independent meanings and that he satis-
fies the latter phrase, and he asks us to transfer his removal pro-
ceedings to a district court in Virginia to address his citizenship.
See
id. § 1252(b)(2)(B). Kromah argues, alternatively, that he is entitled
to relief under the Convention.
The decision of the Board is the final judgment in Kromah’s
immigration proceeding.
Gonzalez v. U.S. Att’y Gen., 820 F.3d 399,
403 (11th Cir. 2016). Insofar as the Board agreed with the immigra-
tion judge’s “reasoning, we review . . . [both] decisions . . . to the
extent of the agreement.”
Id. “[W]e review conclusions of law
de
novo and factual determinations under the substantial evidence
test.”
Id. “The substantial-evidence standard is highly deferential:
we view the record in the light most favorable to the decision of
the Board and affirm if the decision is supported by reasonable, sub-
stantial, and probative evidence on the record considered as a
whole.”
Sanchez-Castro v. U.S. Att’y Gen., 998 F.3d 1281, 1285
(11th Cir. 2021) (internal quotation marks omitted).
We review
de novo whether Kromah is a citizen of the
United States.
Sebastian-Soler v. U.S. Att’y Gen., 409 F.3d 1280,
1283 (11th Cir. 2005). In “seek[ing] to obtain the privileges and ben-
efits of citizenship,” Kromah bears “the burden . . . to show his eli-
gibility for citizenship in every respect.”
Berenyi v. Dist. Dir., INS,
385 U.S. 630, 637 (1967). We can decide whether Kromah is a
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20-14582 Opinion of the Court 7
citizen because the material facts are undisputed.
See 8 U.S.C.
§ 1252(b)(5)(A).
When Kromah’s mother was naturalized, a child had to sat-
isfy certain criteria to become by operation of law a citizen of the
United States.
Id. § 1432(a). The parent’s “naturalization [had to]
take[] place while such child is unmarried and under the age of
eighteen.”
Id. And the child had to be “residing in the United States
pursuant to lawful admission for permanent residence at the time
of the naturalization of the parent . . . or thereafter begin[] to reside
permanently in the United States while under the age of eighteen
years.”
Id.
United States v. Forey-Quintero, 626 F.3d 1323 (11th Cir.
2010), forecloses the argument that Kromah became a citizen of
the United States only by living with his mother after her naturali-
zation. In
Forey-Quintero, we held “that the phrase ‘begins to re-
side permanently in the United States while under the age of eight-
een years’ contained in 8 U.S.C. § 1432(a)(5) requires [that a child
attain] the status of a lawful permanent resident” before turning
eighteen years old.
Id. at 1324. Kromah entered this country as a
non-immigrant visitor, and that status did not change before his
eighteenth birthday. As a visitor—that is “an alien admitted for a
temporary period”—Kromah never “beg[an] to reside perma-
nently” in this country during the interim he could derive citizen-
ship automatically from his mother.
See id. at 1327. We are bound
to follow
Forey-Quintero unless and until it is overruled by this
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8 Opinion of the Court 20-14582
court
en banc or by the Supreme Court.
See Delgado v. U.S. Att’y
Gen., 487 F.3d 855, 860 n.3 (11th Cir. 2007).
No further proceedings are needed to resolve Kromah’s cit-
izenship status.
See Forey-Quintero, 626 F.3d at 1324. Because no
“genuine issue of material fact [exists] about [Kromah’s] national-
ity” for a district court to resolve, we deny Kromah’s motion to
transfer.
See 8 U.S.C. § 1252(b)(5)(B). Likewise, the Board commit-
ted no error by denying Kromah’s motion to remand because he
failed to make a prima facie case for derivative citizenship.
See Al
Najjar v. Ashcroft, 257 F.3d 1262, 1301–02 (11th Cir. 2001). Kromah
did not become a lawful permanent resident of the United States
before his eighteenth birthday as required by former section
1432(a)(5), and neither Fourth nor Eleventh Circuit precedent in-
validates that statutory requirement.
Kromah faults the Board for failing to consider whether the
change in venue violated his right to due process. But “courts and
agencies are not required to make findings on issues the decision of
which is unnecessary to the results they reach.”
Immigr. & Natu-
ralization Serv. v. Bagamasbad, 429 U.S. 24, 25 (1976). Kromah
failed to establish a prima facie case for derivative citizenship. The
Board did not need to address, and did not err in declining to ad-
dress, whether the change in venue prejudiced Kromah.
Substantial evidence supports the finding that Kromah will
not likely be tortured if removed to Liberia. Nearly two decades
has passed since Kromah’s family was harmed for their involve-
ment in the Liberian civil war, and recent country reports reflect
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20-14582 Opinion of the Court 9
that the Liberian government is disinterested in prosecuting war
criminals from that conflict. Those reports also state that the laws
in Liberia prohibit torture, that officials do not take political pris-
oners, and that officials who abuse their authority are subject to
criminal prosecution. In addition, Kromah’s uncle, who Kromah
admits committed atrocities during the civil war, remains in Libe-
ria unharmed.
We DENY Kromah’s motion to transfer and his petition for
review.
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