United States Court of Appeals, Second Circuit.
Micheal WALLACE, Petitioner,
v.
Alberto R. GONZALES, Respondent.
No. 05-2341-ag.

May 1, 2006.
Brief for Respondent

Margaret M. Chiara, United States Attorney, John F. Salan, Assistant United States Attorney, Post Office Box 208, Grand Rapids, Michigan 49501-0208, 616-456-2404.

TABLE OF CONTENTS

TABLE OF AUTHORITIES … iii
ISSUES PRESENTED … 1
STATEMENT OF THE CASE … 2
FACTS … 4
SUMMARY OF ARGUMENT … 7
ARGUMENT … 8

I. Under Section 242(a)(2)(B)(i) of the I.N.A., 8 U.S.C. § 1252(a)(2)(B)(i), the Court Lacks Jurisdiction to Review the Board’s Discretionary Determination that Petitioner is Ineligible for Relief in the Form of Adjustment of Status and the Cancellation of Removal … 8

A. Statutory Background: Adjustment of Status … 8
B. Jurisdictional Bar to Review Discretionary Denial of Adjustment of Status … 9

II. Petitioner Was Accorded a Full and Fair Hearing Regarding Adjustment of Status Where a Complete Fact Finding Had Been Made Regarding Petitioner’s Application for Adjustment of Status and the Board Appropriately Exercised its Discretion Following a De Novo Review of the Record Pursuant to its Powers as Set Forth in 8 C.F.R. 1003.1(d)(3)(ii). Therefore, His Purported Due Process Claim is Without Merit … 10

CONCLUSION … 14
CERTIFICATE OF SERVICE … 15

TABLE OF AUTHORITIES

Cases
Chen v. U.S. Dept. of Justice, 434 F.3d 144 (2d Cir. 2006) … 9, 10, 12, 13
De La Vega v. Gonzales, 436 F.3d 14 (2d Cir. 2006) … 10-12
Drax v. Reno, 338 F.3d 98 (2d Cir. 2003) … 9
Elkins v. Moreno, 435 U.S. 647 (1978) … 9
Jain v. I.N.S., 612 F.2d 683 (2d Cir. 1979) … 8
Paredes-Urrestarazu v. I.N.S., 36 F.3d 801 (9th Cir. 1994) … 12
Saloum v. U.S. Citizenship & Immigration Services, 437 F.3d 238 (2d Cir. 2006) … 10-12
Sol v. I.N.S., 274 F.3d 648 (2d Cir. 2001) … 10-12
Vasile v. Gonzales, 417 F.3d 766 (7th Cir. 2005) … 11
Zhang v. U.S. I.N.S., 386 F.3d 66 (2d Cir. 2004) … 13

Statutes
8 U.S.C. § 1252(a)(2)(B)(i) … 1, 7-10
8 U.S.C. § 1252(a)(2)(D) … 7, 9
8 U.S.C. § 1252(b)(4)(B) (2000) … 13
8 U.S.C. § 1255 (2000) … 8, 9
Other Authorities
8 C.F.R. § 1003.1(d)(3)(ii) … 1, 7, 10, 13
8 C.F.R. § 1245.1(a) (2005) … 8

ISSUES PRESENTED

1. Whether, under Section 242(a)(2)(B)(i) of the I.N.A., 8 U.S.C. § 1252(a)(2)(B)(i), the Court lacks jurisdiction to review the Board’s determination that Petitioner is ineligible for relief in the form of adjustment of status and the cancellation of removal.
2. Whether Petitioner was accorded a full and fair hearing regarding adjustment of status where a complete fact finding had been made regarding Petitioner’s application for adjustment of status and the Board appropriately exercised its discretion following a de novo review of the record pursuant to its powers as set forth in 8 C.F.R. § 1003.1(d)(3)(h).

STATEMENT OF THE CASE

On or about August 2, 2000, Petitioner, Micheal Wallace, entered the United States with a visitor’s visa for pleasure, not to exceed one year. (JA 76.) On December 20, 2000, the Petitioner was arrested in New York, New York, for armed robbery in the 1st, 2nd and 3rd degrees, assault, and petty larceny. (JA 123-126.)

On February 20, 2001, the Petitioner was arrested for possession of marijuana. (JA 134-135.) On February 21, 2001, Petitioner’s sentence for possession of marijuana was adjourned in contemplation of dismissal. (JA 24.) On April 23, 2001, Petitioner was arrested for turnstile jumping. (JA 135.) On April 24, 2001, Petitioner was convicted of turnstile jumping and sentenced to two days community service. (JA 24.)

On January 9, 2002, Petitioner was sentenced for the armed robbery. He was given Youthful Offender treatment but sentenced to serve 1 1/3 to four years at a Youthful Offender Prison in Attica, New York. (JA 24.) On October 18, 2003, Petitioner was placed in removal proceedings for overstaying his visa pursuant to § 237(a)(1)(B) of the Immigration and Nationality Act. (JA 24.) On March 25, 2004, Petitioner’s step-father filed an I-130 relative petition to adjust status pursuant to § 245 of the Immigration and Nationality Act. (JA 25, 304.)

On June 30, 2004, a hearing was held before Immigration Judge Joe Miller regarding the Petitioner’s adjustment of status petition. (JA 55-194.) On September 8, 2004, the Immigration Judge issued his opinion and granted adjustment of status allowing Petitioner to stay in the United States. (JA 50-53.) On September 15, 2004, the Department of Homeland Security filed a Notice of Appeal of the Immigration Judge’s decision. (JA 42-46.)

On April 15, 2005, the Board of Immigration Appeals (BIA) issued its opinion reversing the Immigration Judge’s decision granting the Petitioner adjustment of status and ordered the Petitioner removed to Trinidad. (JA 1-3.) On May 13, 2005, Petitioner filed a Petition for Review of the Agency Order.

FACTS

Petitioner, Micheal Wallace, is a 21-year-old male, a native and citizen of Trinidad who entered the United States on or about August 2, 2000, as a visitor for pleasure, and who remained in the United States beyond his authorized period of stay. (JA 76.) Petitioner was placed in removal proceedings on or about October 13, 2003, for having remained in the United States for a time longer than permitted, in violation of Section 237(a)(1)(B) of the Immigration and Nationality Act, as amended. (JA 24.)

Within a period of eight months after entering the United States as a visitor for pleasure, the Petitioner was arrested on three separate occasions. On December 20, 2000, the Petitioner was arrested in New York, New York, for armed robbery in the 1st, 2nd, and 3rd degrees and also for assault and petty larceny. (JA 123-126.) On January 9, 2002, Petitioner was sentenced to 1 1/3 to four years’ incarceration under New York’s Youthful Offender law. (JA 24.)

On February 20, 2001, petitioner was arrested a second time. This time, the arrest was for possession of marijuana. (JA 134-135.) Petitioner received a sentence of “Adjourned in Contemplation of Dismissal” on February 12, 2001. (JA 24.) Petitioner’s third arrest occurred on April 23, 2001, when he was arrested for turnstile jumping. (JA 135.) Petitioner was convicted of this offense and received a sentence of two days community service. (JA 24.) Based on the nature of these criminal dispositions, the Department of Homeland Security/Immigrations and Customs Enforcement (DHS/ICE) could not charge Petitioner with these criminal convictions.

On October 18, 2003, Petitioner was placed in removal proceedings for overstaying his visa pursuant to Section 237(a)(1)(B) of the Immigration and Nationality Act. (JA 24.) On March 25, 2004, Petitioner’s step-father filed an I-130 relative petition to adjust status pursuant to Section 245 of the Immigration and Nationality Act. (JA 305.) On June 30, 2004, a hearing was held before Immigration Judge Joe Miller regarding the Petitioner’s adjustment of status petition. (JA 55-194.) During the course of the hearing, the Petitioner testified and admitted on the record his involvement in the armed robbery and all the details surrounding the crime. (JA 123-127.) Petitioner also admitted on the record his arrests for possession of marijuana and turnstile jumping. (JA 134-135.)

On September 8, 2004, the Immigration Judge issued his opinion The Judge recognized that adjustment of status was a discretionary matter and granted the Adjustment of Status sought under Section 245 of the Immigration and Nationality Act. (JA 50-53.) On September 15, 2004, DHS/ICE promptly filed a Notice of Appeal of the Immigration Judge’s decision. (JA 42-46.)

Both parties briefed the case and submitted their briefs to the BIA. Petitioner in his brief admitted that adjustment of status was a matter of discretion. (JA 9.) On April 15, 2005, the BIA issued its opinion reversing the Immigration Judge’s decision granting the Petitioner adjustment of status and ordered Petitioner removed to Trinidad. (JA 2-3.) The BIA held that based on Petitioner’s criminal history, which indicated a propensity to violate the law, he was not desirable as an alien resident in the United States. The BIA further held that the familial support factor could not outweigh the negative factor of criminal history. The BIA also held that the Immigration Judge erred in finding adequate evidence of rehabilitation which would outweigh the negative criminal history.^[FN1] (JA 2-3.) On May 13, 2005, petitioner filed a petition for review of the Agency Order alleging, inter alia, that the BIA violated due process.

FN1. The evidence of rehabilitation considered by the Immigration Judge was actually court-ordered as part of petitioner’s sentence on the armed robbery charge. (JA 315; JA 238-240.) It was done while petitioner was incarcerated as an inmate in a penal institution.

SUMMARY OF ARGUMENT

Pursuant to I.N.A. § 242(a)(2)(B)(i), 8 U.S.C. § 1252(a)(2)(B)(i) (2000), this Court lacks jurisdiction to review “any judgment” regarding relief under 8 U.S.C. § 1255, adjustment of status. Although I.N.A. § 242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(D) provides the Court with jurisdiction to review “Constitutional claims” or “questions of law,” the Court remains deprived of jurisdiction to review discretionary and factual determinations. Further, the talismanic invocation of the language “due process” does not itself serve to provide this Court with jurisdiction to review a challenge to denial of discretionary relief.

Petitioner was accorded a full and fair hearing in which he was allowed to present his evidence. The Board appropriately exercised its discretion following a de novo review of the record pursuant to its powers set forth in 8 C.F.R. 1003(1)(d)(3)(ii). The Board properly concluded that the Immigration Judge’s decision granting adjustment of status was an abuse of discretion.

ARGUMENT

I. Under Section 242(a)(2)(B)(i) of the I.N.A., 8 U.S.C. § 1252(a)(2)(B)(i), the Court Lacks Jurisdiction to Review the Board’s Discretionary Determination that Petitioner is Ineligible for Relief in the Form of Adjustment of Status and the Cancellation of Removal

A. Statutory Background: Adjustment of Status

“Adjustment of status” is a discretionary immigration benefit that affords qualifying aliens the procedural opportunity to obtain lawful permanent resident status from within the United States. See 8 U.S.C. § 1255 (2000). Specifically, 8 U.S.C. § 1255(a) provides that the Attorney General may adjust the status of an alien already present in the United States if, inter alia, the alien warrants the favorable exercise of discretion.

An adjustment of status applicant must meet several prerequisites: (1) he must have been “inspected and admitted or paroled” into the United States; (2) he must have submitted an application for adjustment of status; (3) an immigrant visa must be “immediately available” to him at the time the adjustment application is filed; and (4) he must be “admissible to the United Stats for permanent residence.” See 8 U.S.C. § 1255(a); 8 C.F.R. § 1245.1(a) (2005). In addition, an adjustment applicant must demonstrate that he merits status adjustment in the exercise of the Attorney General’s discretion. See 8 U.S.C. § 1255(a); Jain v. I.N.S., 612 F.2d 683, 687 (2d Cir. 1979); see also Elkins v. Moreno, 435 U.S. 647, 667 (1978) (“adjustment of status if a matter of grace, not right)); Drax v. Reno, 338 F.3d 98, 113-115 (2d Cir. 2003) (describing adjustment of status as a multi-step process requiring: (1) an approved immigrant visa petition that is immediately available; (2) a determination that the alien meets all the statutory requirements for adjustment; and (3) a determination that he warrants the favorable exercise of discretion).

B. Jurisdictional Bar to Review Discretionary Denial of Adjustment of Status

Pursuant to INA § 242(a)(2)(B)(i), 8 U.S.C. § 1252(a)(2)(B)(i) (2000), this Court lacks jurisdiction to review “any judgment” regarding relief under 8 U.S.C. § 1255, adjustment of status. Although INA § 242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(D)^[FN2] provides the Court with jurisdiction to review “constitutional claims” or “questions of law,” the Court “remains deprived of jurisdiction to review discretionary and factual determinations.” See Chen v. U.S. Dept. of Justice, 434 F.3d 144, 152-54 (2d Cir. 2006). The “talismanic invocation of the language ‘due process’ ” does not itself suffice to provide this Court with jurisdiction to review a challenge to denial of discretionary relief. See Saloum v. U.S. Citizenship & Immigration Services, 437 F.3d 238, 243 (2d Cir. 2006); also see De La Vega v. Gonzales, 436 F.3d 141, 146(2d Cir. 2006) (“REAL ID Act does not override statutory provisions denying courts jurisdiction to review discretionary decisions of the Attorney General”); Chen v. U.S. Dept. of Justice, 434 F.3d at 154, n 5 (REAL ID Act amendments to 8 U.S.C. § 1252 permits the Court to review ‘those issues that were historically reviewable on habeas’ when considering petitions for review of final orders of removal) (citations omitted); Sol v. I.N.S., 274 F.3d 648 (2d Cir. 2001) (habeas jurisdiction does not extend to review of whether IJ and BIA decisions lack adequate support in the record).

FN2. 8 U.S.C. § 1252(a)(2)(D) was enacted on May 11, 2005 by the REAL ID Act of 2005, Pub. L. 109-113, 119 Stat. 231, 302 (“REAL ID Act”), and provides, [n]othing in [8 U.S.C. § 1252(a)(2)(B)] or (C), or in any other provision of [the INA] (other than this section) which limits or eliminates judicial review, shall be construed as precluding review of constitutional claims or questions or law raised upon a petition for review filed with an appropriate court of appeals in accordance with this section.”

II. Petitioner Was Accorded a Full and Fair Hearing Regarding Adjustment of Status Where a Complete Fact Finding Had Been Made Regarding Petitioner’s Application for Adjustment of Status and the Board Appropriately Exercised its Discretion Following a De Novo Review of the Record Pursuant to its Powers as Set Forth in 8 C.F.R. 1003.1(d)(3)(H). Therefore, His Purported Due Process Claim is Without Merit

Wallace seeks to circumvent the clear jurisdictional bar in 8 U.S.C. § 1252(b)(2)(B)(i) by characterizing his challenge to the agency’s factual findings as a constitutional claim, i.e. that the BIA’s denial of his adjustment of status application was a violation of his due process rights because the record evidence purportedly does not support the BIA’s finding that Wallace is not desirable as an alien resident in the United States. However, this artful pleading ploy should be rejected. See Saloum, 437 F.3d 238, 243 (2d Cir. 2006) (“petitioner cannot create the jurisdiction that Congress chose to remove simply by cloaking an abuse of discretion argument in constitutional garb”) (citation omitted). Notwithstanding Wallace’s attempt to cloak his challenge to factual findings by the BIA in constitutional garb, a “fact-intensive review” to determine whether the “decisions of the BIA lacked support in the record” does not fall within the narrow review of “statutory or constitutional errors.” See Sol v. I.N.S., 274 F.3d at 651; Chen v. U.S. Dept. of Justice, 434 F.3d at 154 (although the REAL ID Act provides the Court with jurisdiction to review constitutional claims or matters of statutory construction, “we remain deprived of jurisdiction to review discretionary and factual determinations” by an IJ); also see De La Vega v. Gonzales, 436 F.3d 141, 146 (factual determinations continue to fall outside the jurisdiction of the court of appeals entertaining a petition for review), citing Vasile v. Gonzales, 417 F.3d 766, 768 (7th Cir. 2005). In Saloum, this Court held that petitioner’s arguments that an IJ “incorrectly weighed the evidence and “failed to consider certain evidence” were “nothing more than an argument that the IJ abused his discretion, a matter over which we have no jurisdiction.” See Saloum, 437 F.3d 244.

This Court lacks jurisdiction to consider this petition because all of Wallace’s challenges in this petition are “at bottom, a challenge to the BIA’s exercise of discretion.” See Saloum, 437 F.3d 243. Specifically, Wallace contends that the BIA erred: (1) by considering Wallace’s criminal conduct, which he testified to in great detail before the Immigration Judge;^[FN3] and (2) by violating the Code of Federal Regulations by vacating the Immigration Judge’s decision granting Wallace adjustment of status. Thus, notwithstanding Wallace’s attempt to cloak his petition in constitutional garb, each of his challenges is, at bottom, a challenge to factual findings and discretionary determinations, which this Court plainly lacks jurisdiction to consider. See Chen, 434 F.3d 154; De La Vega, 436 F.3d 143-146; Saloum, 437 F.3d 243-44; Sol, 274 F.3d 651.

FN3. Petitioner admitted at the hearing that he had been arrested for armed robbery, possession of marijuana and turnstile jumping. Petitioner set forth in detail the facts surrounding the armed robbery situation (JA 123-126). Armed robbery has been defined as a crime involving moral terpitude. Paredes-Urrestarazu v. I.N.S., 36 F.3d 801 (9th Cir. 1994). Pursuant to 8 U.S.C. § 1182(2)(A)(i)(I), “any alien who admits committing acts which constitute the essential elements of … a crime inolving moral terpitude … is inadmissible.”

Thus, even if this Court had jurisdiction to review the BIA’s factual findings, this petition should be dismissed because these findings are supported by substantial evidence. See, INA § 272(b)(4)(B), 8 U.S.C. § 1252(b)(4)(B) (2000) (“the administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary”) (emphasis added). this Court has held that under this “strict standard of review” the Court will “defer to the factual findings of the BIA … if they are supported by substantial evidence.” Zhang v. U.S. I.N.S., 386 F.3d 66, 73 (2d Cir. 2004); see also Chen, 434 F.3d 155 (8 U.S.C. § 1252 “tightly circumscribes our review of factual findings, including adverse credibility determinations”) (collecting cases).

When the BIA rendered its decision in Wallace’s case on April 15, 2005, (JA 1-3) it had the authority to engage in de novo review of the record and based on such review, make its own independent findings on questions of fact and law, 8 C.F.R. § 03(1)(d)(3)(ii). In Wallace’s case, the BIA properly found that Wallace’s attempts to rehabilitate himself while incarcerated did not outweigh the seriousness of his conviction for robbery and other indications of criminal activity. Accordingly, Petitioner’s due process claims are wholly without merit.

CONCLUSION

For the foregoing reasons, the Court should dismiss the petition for review for lack of jurisdiction.

Micheal WALLACE, Petitioner, v. Alberto R. GONZALES, Respondent.
2006 WL 5516271 (C.A.2) (Appellate Brief)