Maiwand v. Gonzales, No. 05-6055 (2d Cir. 2007)

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The court issued a subsequent related opinion or order on September 28, 2007.

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05-6055-ag Maiwand v. Gonzales 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 August Term, 2006 4 (Argued: March 21, 2007 Decided: September 11, 2007) 5 Docket No. 05-6055-ag 6 ------------------------------------- 7 MOHAMMAD HOMAYUN MAIWAND, 8 Petitioner, 9 - v - 10 ALBERTO R. GONZALES, Attorney General, 11 Respondent. 12 ------------------------------------- 13 14 Before: SACK, B.D. PARKER, and HALL, Circuit Judges. Petition for review of a decision of the Board of 15 Immigration Appeals denying the petitioner's motion to terminate 16 removal proceedings based on his refugee status and denying his 17 applications for a waiver of inadmissibility and relief under the 18 Convention Against Torture. 19 Petition denied in part and dismissed in part. 20 21 22 23 24 MICHAEL P. DIRAIMONDO, DiRaimondo & Masi, LLP (Marialaina L. Masi, Mary Elizabeth Delli-Pizzi, Stacy A. Huber, of counsel), Melville, NY for Petitioner. 25 26 27 28 29 PAPU SANDHU, Office of Immigration Litigation, Department of Justice (Peter D. Keisler, Assistant Attorney General, of counsel), Washington, DC for Respondent. 1 SACK, Circuit Judge: 2 Mohammad Homayun Maiwand, a native and citizen of 3 Afghanistan, petitions for review of a decision by the Board of 4 Immigration Appeals ("BIA") denying 1) his application for a 5 waiver of inadmissibility under section 212(c) of the Immigration 6 and Nationality Act ("INA"), 8 U.S.C. § 1182(c); 2) his request 7 for relief pursuant to regulations implementing the United 8 Nations Convention Against Torture and Other Cruel, Inhuman or 9 Degrading Treatment or Punishment, adopted Dec. 10, 1984, S. 10 Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 85 ("CAT"); and 3) 11 his motion to terminate the removal proceedings against him. 12 re Mohammad Homayan Maiwand, No. A 28 906 603 (B.I.A. Jan. 29, 13 2004), aff'g No. A 28 906 603 (Immig. Ct. N.Y. City July 22, 14 2002). 15 In Maiwand contests the BIA's denial of section 212(c) 16 relief, but his arguments raise no constitutional claim or 17 question of law. 18 the BIA's decision in that regard. 19 the petition. 20 to review the correctness of the IJ's fact-finding regarding 21 Maiwand's CAT claim. 22 erred in assessing what evidence could satisfy his burden of 23 proof under the CAT regulations, we find the argument to be 24 without merit. 25 26 We are therefore without jurisdiction to review To that extent, we dismiss We also dismiss the petition insofar as it asks us To the extent Maiwand argues that the IJ Maiwand's challenge to the third part of the BIA's decision is based on his argument that because he entered the 2 1 country as a refugee, the BIA is statutorily prohibited from 2 ordering his removal without first cancelling that status. 3 Although this is a question of law that we have jurisdiction to 4 review, we conclude that the BIA's interpretation of the relevant 5 statutes and regulations are reasonable. 6 the petition. To that extent, we deny BACKGROUND 7 8 According to Maiwand's testimony before Immigration 9 Judge ("IJ") Alan A. Vomacka, Maiwand is a member of the Mohummed 10 Ziy monarchy, which ruled Afghanistan for about two hundred years 11 prior to the 1980s. 12 by the Soviet Union, Maiwand escaped with his wife Fazila to the 13 United States. 14 the INS1 granted his application for adjustment of status and, 15 retroactive to 1991, made Maiwand a legal permanent resident 16 ("LPR"). 17 and Fazila have three children born in the United States in 1990, 18 1992, and 1994, respectively. In 1988, after the Ziy family was overthrown He was accorded refugee status in 1990. Fazila became a United States citizen in 1997. In 1992, Maiwand They are United States citizens. 19 In 1993, Maiwand, in exchange for $5,000, introduced an 20 Afghani friend, who said he wanted to purchase heroin, to another 21 friend who Maiwand knew was selling heroin. 22 by the State of New York with, and pled guilty to, second degree 1 Maiwand was charged On March 1, 2003, the Immigration and Naturalization Service was reconstituted as the Bureau of Immigration and Customs Enforcement ["ICE"] and the Bureau of U.S. Citizenship and Immigration Services, both within the Department of Homeland Security. Because the rulings at issue in this case were made when the agency was still the INS, we refer to it as the INS in this opinion. 3 1 criminal sale of a controlled substance. Maiwand's conviction 2 subjected him to deportation because it "relat[ed] to a 3 controlled substance." 4 (current version at 8 U.S.C. § 1227). The INS issued an order to 5 show cause in 1994. 6 removability, attempted to secure refugee status through his 7 first asylum application, and applied for relief under INA § 8 212(c). The IJ found Maiwand ineligible for both forms of 9 relief. Maiwand's case then began a convoluted journey through 8 U.S.C. § 1251(a)(2)(B)(i) (1994) Maiwand appeared before an IJ, conceded 10 the immigration agency and the federal courts, recounted at 11 length in In re Mohammad Homayan Maiwand, No. A 28 906 603 12 (B.I.A. June 23, 2000). 13 remanded Maiwand's case to the IJ in 2000 to allow the IJ to 14 reconsider Maiwand's application for section 212(c) relief and 15 any other relief that might have been available as a result of 16 the amount of time that had passed since the IJ had last 17 considered Maiwand's applications. As relevant to this petition, the BIA See id. 18 On remand, the IJ denied Maiwand's application for a 19 waiver of inadmissibility pursuant to section 212(c), in large 20 part because new testimony by Maiwand before the IJ convinced the 21 IJ that Maiwand's earlier testimony falsely minimized his 22 involvement in the heroin transaction that led to his 1993 23 conviction. 24 corresponding doubts about Maiwand's credibility, the IJ decided 25 not to exercise the Attorney General's discretion delegated to 26 the IJ to grant Maiwand a section 212(c) waiver. In light of the new information and the IJ's 4 1 The IJ also denied Maiwand's application for CAT 2 relief. The judge recognized that the Afghan government might be 3 unable to protect Maiwand from the violent acts of rogue elements 4 in the country. 5 to show a "probability that [he] would be taken into custody by 6 the government under the present situation in Afghanistan [or] a 7 probability that if he were taken into custody by some other 8 group, it would be with the acquiescence of the government." 9 Oral Decision Tr., dated July 22, 2002, at 6. The IJ nonetheless found that Maiwand had failed In sum, the IJ 10 found, Maiwand had "not established a probability of being 11 tortured in Afghanistan." 12 Id. Maiwand appealed to the BIA, which affirmed the IJ's 13 denial of relief under both section 212(c) and CAT. 14 filed a motion asking the BIA to terminate the proceedings based 15 on the theory that, as a refugee, he could not be removed from 16 the country. 17 Maiwand adjusted his status from that of refugee to that of an 18 LPR, his previous refugee status provided no basis for 19 terminating removal proceedings. 20 Maiwand also The BIA denied this motion, reasoning that once Maiwand petitions for review. DISCUSSION 21 22 I. Standard of Review 23 "Where, as here, the BIA adopts and affirms the 24 decision of the IJ, and supplements the IJ's decision, we review 25 the decision of the IJ as supplemented by the BIA." 26 Gonzales, 469 F.3d 53, 55 (2d Cir. 2006). 5 Islam v. 1 We apply the principles of Chevron U.S.A., Inc. v. 2 Natural Res. Def. Council, Inc., 467 U.S. 837 (1984), to agency 3 interpretations of statutes when Congress has delegated law- 4 making authority to the agency and the interpretation was 5 promulgated pursuant to that authority. 6 464 F.3d 163, 168 (2d Cir. 2006) (citing United States v. Mead 7 Corp., 533 U.S. 218, 226-27 (2001)). 8 are eligible for Chevron deference insofar as they represent the 9 agency's authoritative interpretations of statutes. 10 Ucelo-Gomez v. Gonzales, Precedential BIA decisions See id. at 170. 11 II. Jurisdiction 12 Because Maiwand was ordered removed pursuant to 8 13 U.S.C. § 1227(a)(2)(B),2 we have jurisdiction to review only 14 "constitutional claims or questions of law raised [in his] 15 petition for review." 16 § 1252(a)(2)(C) (providing that its jurisdictional limitations 17 apply when an alien "is removable by reason of having committed a 18 criminal offense covered" in, inter alia, section 1227(a)(2)(B)). 19 "[T]he term 'constitutional claims' clearly relates to claims 2 8 U.S.C. § 1252(a)(2)(D); see also Section 1227(a)(2)(B) makes deportable "[a]ny alien who at any time after admission has been convicted of a violation of . . . any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21)." 8 U.S.C § 1227(a)(2)(B). Maiwand's conviction for the heroin deal falls within this provision. See 21 U.S.C. § 802 (defining a "controlled substance" as any substance listed in a schedule in 21 U.S.C. § 812); 21 U.S.C. § 812 (listing heroin as a schedule I substance). 6 1 brought pursuant to provisions of the Constitution of the United 2 States." 3 2006). 4 of issues [over which] courts traditionally exercised 5 [jurisdiction] in habeas review over Executive detentions," id. 6 at 326-27, which the Supreme Court has noted is "broader than 7 habeas review over other types of detentions resulting from 8 judicial determinations," St. Cyr, 533 U.S. at 301. 9 determining whether we have jurisdiction, we must "study the 10 arguments asserted . . . [and] determine, regardless of the 11 rhetoric employed in the petition, whether it merely quarrels 12 over the correctness of the factual findings or justification for 13 the discretionary choices." 14 so, we do not have jurisdiction to review it. 15 observed, generally, that we have jurisdiction to review "the 16 application of law to fact, including what evidence may satisfy a 17 party's burden of proof." 18 (2d Cir. 2007) (per curiam) (citations omitted). 19 A. 20 Xiao Ji Chen v. Gonzales, 471 F.3d 315, 324 (2d Cir. The phrase "questions of law" encompasses "the same types In Xiao Ji Chen, 471 F.3d at 329. See id. If We have Gui Yin Lin v. INS, 475 F.3d 135, 137 Section 212(c) Relief Former INA section 212(c) granted the Attorney General 21 discretion to waive deportation orders issued to LPRs who have 22 lived in the United States for at least seven consecutive years. 23 See INS v. St. Cyr, 533 U.S. 289, 294-95 (2001). 24 was repealed by the Illegal Immigration Reform and Immigrant 7 This provision 1 Responsibility Act of 1996 ("IIRIRA"). Section 212(c)'s waiver 2 of inadmissibility relief nonetheless remains available to aliens 3 who pled guilty to crimes prior to the month of April 1997, in 4 which IIRIRA became effective, and who, "notwithstanding those 5 convictions, would have been eligible for § 212(c) relief at the 6 time of their plea under the law then in effect." 7 U.S. at 326. St. Cyr, 533 8 Maiwand first disputes the IJ's and BIA's conclusions 9 that his testimony about the heroin transaction in his hearings 10 before the IJ was inconsistent. 11 inconsistency resulted from superficial questioning of him about 12 his role in the offense at his first hearing. 13 attack "essentially disputes the correctness of an IJ's 14 fact-finding," Xiao Ji Chen, 471 F.3d at 329, we are without 15 jurisdiction to review it. 16 He asserts that the apparent Because this Maiwand next argues that his strong family ties to 17 United States citizens, along with other favorable factors, 18 warrant a waiver of inadmissibility under section 212(c) 19 notwithstanding the negative weight that attaches to his drug 20 conviction. 21 of [the IJ's] exercise of discretion," id., and we therefore have 22 no jurisdiction to review it. 23 This argument amounts to a challenge to the "wisdom Maiwand also asserts that the BIA ignored a 24 psychiatrist's report that provided evidence of his 25 rehabilitation and the hardships his family would endure if he 26 was removed. He contends that the BIA thereby abused its 8 1 discretion and violated his right to due process. But while an 2 "IJ's unambiguous mischaracterization of the record raises a 3 question of law," Gui Yin Liu, 475 F.3d at 138, an argument that 4 "merely quibbles with the IJ's description of the facts," Khan v. 5 Gonzales, --- F.3d ---, ---, 2007 WL 2127712, *3, 2007 U.S. App. 6 LEXIS 17793, *11 (2d Cir. July 26, 2007), does not. 7 BIA explicitly referenced the report in its opinion. 8 Accordingly, we conclude that Maiwand's complaint regarding the 9 extent of the agency's reliance on the report amounts to nothing Here, the 10 more than a "quarrel[] over the . . . justification for the 11 discretionary choices" made, a decision we cannot review. 12 Ji Chen, 471 F.3d at 329. 13 B. 14 Xiao CAT Relief Regulations implementing CAT provide that "once an 15 alien establishes that 'it is more likely than not that he or she 16 would be tortured if removed to the proposed country of removal,' 17 the United States may not remove him or her to that country." 18 Ramsameachire v. Ashcroft, 357 F.3d 169, 184 (2d Cir. 2004) 19 (quoting 8 C.F.R. § 208.16(c)(2)). 20 "failed to cite any basis for its decision" that he had failed to 21 meet his burden of proof and that the decision was "clearly in 22 error, unsupported by the record, and without any basis in fact." 23 Maiwand Br. at 51, 52. 24 disputes the correctness of an IJ's fact-finding," Xiao Ji Chen, 25 471 F.3d at 329, we are without jurisdiction to review it, id. 26 To the extent that Maiwand challenges the IJ's application of Maiwand contends that the BIA Because the latter argument "essentially 9 1 facts to the standard of proof required under the CAT 2 regulations, we find the challenge to be without merit. 3 C. 4 Motion to Terminate Maiwand also contends that his motion to terminate the 5 removal proceedings should have been granted because he is 6 statutorily ineligible for removal on the ground that his refugee 7 status was never revoked in accordance with 8 U.S.C. 8 § 1157(c)(4). 9 jurisdiction to review. This is a question of law that we do have See Romanishyn v. Attorney Gen. of the 10 United States, 455 F.3d 175, 180 (3d Cir. 2006) ("Whether an 11 alien who entered the country as a refugee and subsequently 12 acquired LPR status may be placed in removal proceedings even 13 though his refugee status was never terminated under 8 U.S.C. 14 § 1157(c)(4), is a question of law."). 15 III. Motion to Terminate: The Merits 16 The INA provides that a refugee is a person outside the 17 country of his nationality who "is unable or unwilling to return 18 to, and is unable or unwilling to avail himself or herself of the 19 protection of, that country because of persecution or a 20 well-founded fear of persecution on account of race, religion, 21 nationality, membership in a particular social group, or 22 political opinion." 23 admitted to the United States notwithstanding 1) the likelihood 24 that he will become a public charge; 2) the absence of a labor 25 certification; and 3) the lack of a valid visa or other entry 8 U.S.C. § 1101(a)(42). 10 A refugee may be 1 document. 2 General discretion, within numerical limits provided in other 3 subsections, to admit refugees). 4 inadmissible because of, inter alia, his or her involvement in 5 drug trafficking, 8 U.S.C. § 1182(a)(2)(C), the Attorney General 6 may also waive most other grounds for inadmissibility, see 8 7 U.S.C. § 1157(c)(3) (allowing the Attorney General to waive any 8 ground of inadmissibility except for subsections 1182(a)(2)(C), 9 (3)(A)-(C), (3)(E)). 10 See 8 U.S.C. § 1157(c)(1), (3) (granting the Attorney Unless the alien is Refugee status may be terminated only if the Attorney 11 General finds that the alien did not qualify as a refugee at the 12 time of entry. 13 termination of refugee status "if the Attorney General determines 14 that the alien was not in fact a refugee within the meaning of 15 section 1101(a)(42) . . . at the time of the alien's admission"). 16 See 8 U.S.C. § 1157(c)(4) (providing for Maiwand argues that unless his refugee status has been 17 terminated, he may not be removed. But the BIA has recently held 18 otherwise. 19 (finding "no merit to the respondent's assertion that he is 20 immune from removal on the basis of his convictions for crimes 21 involving moral turpitude because his refugee status has not been 22 terminated" under section 1157(c)(4)). 23 statutes providing for removal refer simply to "any alien" or 24 "the alien" -- they do not distinguish aliens who arrived as 25 refugees from other aliens. 26 §§ 1227(a), 1229). In re Smriko, 23 I. & N. Dec. 836, 842 (B.I.A. 2005) The agency noted that the See id. at 838 (citing 8 U.S.C. Moreover, refugees must apply for adjustment 11 1 to LPR status within a year of their arrival and, upon such 2 application, may be charged with "any applicable ground of 3 inadmissibility . . . or deportability." 4 8 U.S.C. §§ 1159, 1229a; 8 C.F.R. § 209.1). 5 that "[i]f conditional admission as a refugee does not immunize 6 an alien from the general grounds of admissibility, it follows 7 that a refugee admitted as a lawful permanent resident . . . is 8 not immunized from the grounds for removal that are applicable to 9 all other aliens." Id. at 840. See id. at 839 (citing The BIA reasoned It also considered it "difficult 10 to imagine that Congress intended" the result urged by the 11 petitioner -- viz., a statutory framework that allowed refugees 12 to "commit crimes with impunity, or even engage in terrorist 13 activity and remain exempt from removal" as long as they were in 14 fact refugees at the time of entry. 15 Id. at 841. The statute is silent as to whether refugee status must 16 be terminated prior to commencement of removal proceedings. 17 8 U.S.C. § 1229a (setting forth how removal proceedings are to be 18 conducted without reference to refugee status). 19 therefore defer to the agency's interpretation if it is 20 reasonable. 21 silent or ambiguous with respect to the specific issue, the 22 question for the court is whether the agency's answer is based on 23 a permissible construction of the statute."). 24 See We must See Chevron, 467 U.S. at 843 ("[I]f the statute is Although we have not yet addressed whether the BIA's 25 interpretation of the relevant statutes in Smriko is reasonable, 26 the Third and Ninth Circuits have done so and both have concluded 12 1 that it is. 2 (9th Cir. 2006) (citing Romanishyn, 455 F.3d at 185). 3 See Kaganovich v. Gonzales, 470 F.3d 894, 897-98 We agree. As those circuits recognized, refugee status does not 4 afford complete immunity from removal. See Romanishyn, 455 F.3d 5 at 185 (recognizing that "a refugee may under some circumstances 6 be removed even if his refugee status has not been terminated"); 7 Kaganovich, 470 F.3d at 898 (upholding the BIA's interpretation 8 in light of "statutory text allowing removal of any alien" 9 (emphasis in original)). The fact that Maiwand's adjustment to 10 LPR status did not terminate his refugee status is irrelevant. 11 Even if he retained his refugee status, he would have remained 12 subject to removal for committing a drug trafficking offense. 13 See 8 U.S.C. § 1159 (requiring refugees to "return or be returned 14 to the custody of the Department of Homeland Security [within a 15 year of their entry] for inspection and examination for admission 16 to the United States as an immigrant in accordance with the 17 provisions of," inter alia, 8 U.S.C. § 1229a; 8 U.S.C. § 1229a 18 (providing that "[a]n alien placed in [removal] proceedings . . . 19 may be charged with any applicable ground of 20 inadmissibility . . . or any applicable ground of 21 deportability"); 8 U.S.C. § 1227(a)(2)(B)(i) (making deportable 22 "[a]ny alien who at any time after admission has been convicted 23 of a violation of (or a conspiracy or attempt to violate) any law 24 or regulation of a State . . . relating to a controlled 25 substance"). 26 CONCLUSION 13 1 We have carefully considered the remainder of Maiwand's 2 arguments and find them to be without merit. 3 Maiwand's petition are his assertions that the dangers he is 4 likely to face if returned to Afghanistan, his demonstrated 5 rehabilitation, and the hardship his family is likely to suffer 6 upon his removal outweigh the fact of his conviction for a 7 controlled substances offense over a decade ago. 8 no reason to doubt the factual basis for those assertions, for 9 the foregoing reasons, we do not have jurisdiction to address 10 them. 11 and otherwise denied. At the heart of While we have The petition for review therefore is dismissed in part, 14

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