Severino v. Mukasey, No. 07-4126 (2d Cir. 2008)

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07-4126-ag Severino v. Mukasey 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2008 (Argued: September 25, 2008 Decided: December 3, 2008) Docket No. 07-4126-ag - - - - - - - - - - - - - - - - - - - -x Ramon Julian Severino, Petitioner, - v.Michael B. Mukasey, Attorney General for the United States, Respondent. - - - - - - - - - - - - - - - - - - - -x Before: JACOBS, Chief Judge, WESLEY and HALL, Circuit Judges. Petitioner Ramon Julian Severino petitions from a final 31 order of removal entered in the Board of Immigration Appeals 32 on August 27, 2007. 33 Severino s status had been terminated by law when he failed 34 to appear at a personal interview in connection with his 35 petition to remove conditions on his status. 36 argues that his filing of a second petition to remove 37 conditions extended his term of residency and entitles him An Immigration Judge found that Severino 1 to withholding of removal. 2 deny the petition for review in part and dismiss in part. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 For the following reasons, we JAMES A. WELCOME, Esq., Waterbury, Connecticut, for Appellant. MICHAEL F. SARKO, Esq., United States Department of Justice, Office of Immigration Litigation, for Gregory G. Katsas, Acting Assistant Attorney General for the United States , for Appellee. DENNIS JACOBS, Chief Judge: Ramon Julian Severino appeals from a final order of 18 removal by the Board of Immigration Appeals (BIA). Severino 19 entered this country illegally in 1995; he obtained lawful 20 conditional permanent residency on the basis of his 1997 21 marriage to a citizen; he timely filed to remove the 22 conditions within two years, as required by regulation; but 23 he failed to appear with his wife at a 1999 personal 24 interview, as the regulation also required--his wife having 25 left him early in 1998. 26 Severino removed in March, 2006, and the Board of 27 Immigration Appeals (BIA) affirmed. 28 Severino argues (1) that he was eligible for cancellation of 29 removal because he enjoyed the status of a lawful permanent An immigration judge (IJ) ordered 2 In this petition, 1 resident; and (2) that the IJ denied Severino due process by 2 placing the burden of proof on Severino rather than on the 3 government. 4 conclude that Severino s status was terminated by law in 5 March, 1999, that he was therefore ineligible for 6 cancellation of removal, and that the burden of proof rested 7 on him in the proceedings before the immigration judge. 8 accordingly deny Severino s petition for review, except 9 insofar as we lack jurisdiction over part of the petition, 10 For the reasons stated in this opinion, we We in which respect we dismiss. 11 BACKGROUND 12 13 Ramon Julian Severino, a citizen of the Dominican 14 Republic, entered the United States illegally in September, 15 1995. 16 August 15, 1996, a marriage he claims was bona fide. 17 on this marriage, Severino was granted conditional permanent 18 resident status on March 20, 1997. 19 down; Severino claims that Santa abruptly left their house 20 and terminated all communication with him on January 24, 21 1998. 22 23 He married Andrea Santa, an American citizen, on The marriage soon broke The couple was divorced in April, 2000. Severino s conditional permanent resident status required him to file a Form I-751 Petition to Remove 3 Based 1 Conditions on Residence within a ninety-day window 2 immediately prior to the two-year anniversary of his 3 obtaining status. 4 spouse were also required to attend a personal interview in 5 connection with this petition. 6 Severino filed a timely Form I-751 petition in February, 7 1999, and a personal interview was scheduled for September 8 30, 1999, but Severino and Santa failed to attend. 9 Severino s unexplained failure to attend the interview 8 U.S.C. § 1186a(c)(1). He and his 8 U.S.C. § 1186a(c)(1). By law, 10 resulted in the termination of his permanent resident status 11 as of March 20, 1999, the second anniversary of his lawful 12 admission. 13 Citizenship and Immigration Services (CIS) issued a decision 14 on February 22, 2000, notifying Severino that his status had 15 been terminated by reason of his failure to attend the 16 scheduled interview. 17 8 U.S.C. § 1186a(c)(2)(A). The United States Severino filed a second I-751 petition on March 21, 18 2001, together with a request for a waiver of the joint 19 application requirement in light of his divorce. 20 denied this second I-751 petition on August 15, 2003. 21 The CIS The CIS then served Severino with a Notice to Appear 22 dated March 18, 2005, charging him with removability on the 23 basis of the termination of his status, which the CIS 4 1 unaccountably dated as having occurred when Severino s 2 second I-751 petition was denied on August 15, 2003. 3 ensuing proceeding before the IJ, Severino contested 4 removability based on the termination of his status and 5 requested cancellation of removal pursuant to 8 U.S.C. § 6 1229b. In the 7 By oral Order on March 24, 2006, the IJ denied 8 Severino s application for cancellation of removal, 9 determining that Severino s status was terminated in 2000 10 because of his failure to attend the personal interview in 11 connection with his original I-751 petition. 12 determined that Severino had failed to sustain his burden in 13 connection with his request for a waiver of the joint 14 application requirement, and concluded that the CIS had 15 properly denied his I-751 petition.1 16 ordered Severino s removal to the Dominican Republic. 17 The IJ then Finally, the IJ The BIA adopted and affirmed the ruling by per curiam 18 Order dated August 27, 2007. The BIA was not persuaded that 19 the IJ s findings of fact were clearly erroneous, or that 1 Following the CIS s denial of his second I-751 petition, but prior to the IJ s Order, Severino had filed a third I-751. Noting this fact, the IJ ruled that because one I-751 had already been adjudicated on the merits, there is no reason to consider another one. 5 1 the IJ had erred in finding that Severino had failed to 2 sustain his burden of proof. 3 petition for review with this Court. Severino filed a timely 4 DISCUSSION 5 6 When the BIA issues an opinion, that opinion becomes 7 the basis for review. Chen v. Gonzales, 417 F.3d 268, 271 8 (2d Cir. 2005). 9 the IJ and supplements it, this Court reviews the IJ s When--as here--the BIA adopts a decision of 10 decision as supplemented by the BIA. Id. Administrative 11 findings of fact are conclusive unless any reasonable 12 adjudicator would be compelled to conclude to the contrary. 13 8 U.S.C. § 1252(b)(4)(B). 14 applications of law to undisputed fact, are reviewed de 15 novo. Questions of law, including Delgado v. Mukasey, 508 F.3d 702, 705 (2d Cir. 2007). 16 I 17 18 As the IJ recognized, the threshold issue is Severino s 19 immigration status at the time he filed his second Form I- 20 751. 21 proof vary depending on whether--and when--his status was 22 terminated. Entitlement to relief and the applicable burden of 6 1 The Immigration and Nationality Act (INA) provides that 2 an alien who obtains permanent resident status based on 3 marriage to an American citizen is considered to have 4 obtained such status on a conditional basis only. 5 § 1186a(a)(1). 6 American spouse must petition the Attorney General within 7 the ninety-day period prior to the second anniversary of the 8 granting of conditional permanent residency, and must appear 9 for a personal interview in connection with their petition. 8 U.S.C. To remove the conditions, the alien and the 10 8 U.S.C. § 1186a(c)(1). If the alien fails to appear with 11 spouse at the required interview, without good cause, the 12 Attorney General shall terminate the permanent resident 13 status of the alien as of the second anniversary of the 14 alien s lawful admission for permanent residence. 15 § 1186a(c)(2)(A). 16 requirement to appear, and consequently his status was 17 terminated on March 20, 1999. 8 U.S.C. Severino did not comply with the 18 To avoid this legal conclusion, Severino argues that 19 his failure to appear at the interview in September, 1999 20 constituted an abandonment of his petition, see 8 C.F.R. 21 § 103.2(b)(13)(ii) (failure to appear at a scheduled 22 personal interview results in application being considered 23 abandoned); that he was therefore entitled to file a second 7 1 petition without prejudice, see 8 C.F.R. § 103.2(b)(15) 2 ( Withdrawal or denial due to abandonment does not preclude 3 the filing of a new application or petition with a new fee. 4 . . . 5 itself affect the new proceeding; but the facts and 6 circumstances surrounding the prior application or petition 7 shall otherwise be material to the new application or 8 petition. ); and that his filing of a second I-751 petition 9 on March 21, 2001 extended his status at least until the 10 11 Withdrawal or denial due to abandonment shall not second petition was denied on August 15, 2003. Severino s argument does not withstand a review of the 12 statute. Severino had a right to file a motion to reopen or 13 reconsider, but he did not do so, because his second I-751 14 petition did not comply with the requirements for such a 15 motion: in particular, his second I-751 petition was not 16 filed within thirty days of the decision at issue. 17 C.F.R. § 103.5(a)(1)(i) & (iii) (listing filing requirements 18 for a motion to reopen or reconsider).2 19 an I-751 petition automatically extends conditional 2 See 8 True, the filing of Even if Severino s second I-751 petition were construed as a motion to reopen or reconsider, it is clear that such a motion does not stay the execution of any decision in a case or extend a previously set departure date [u]nless the Service directs otherwise. 8 C.F.R. § 103.5(a)(1)(iv). The CIS did not direct otherwise here. 8 1 permanent resident status until the petition is adjudicated, 2 8 C.F.R. § 216.4(a)(1). 3 necessarily terminated Severino s permanent resident status 4 after he and his spouse failed to appear at the personal 5 interview without good cause, 8 U.S.C. § 1186a(c)(2)(A), and 6 Severino has cited no law in support of his contention that 7 filing a second I-751 petition will restore resident status 8 that has already been terminated. 9 status was terminated by law when he failed to appear with 10 his wife at the personal interview in connection with his 11 first I-751 petition, and the filing of a second I-751 12 petition did not restore his status. But the Attorney General In a nutshell, Severino s 13 14 II 15 Severino challenges the IJ s determination that he was 16 ineligible for cancellation of removal pursuant to 8 U.S.C. 17 § 1229b. 18 discretion, to cancel removal of an alien who (1) has been 19 lawfully admitted for at least five years, (2) has resided 20 in the U.S. continuously for seven years, and (3) has not 21 been convicted of any aggravated felony. 22 1229b(a). That statute permits the Attorney General, in his 9 8 U.S.C. § 1 Severino argues that the IJ erroneously held that a 2 conditional permanent resident--unlike other permanent 3 residents--is categorically ineligible for cancellation of 4 removal. 5 concluded that because Severino s status was terminated by 6 February 22, 2000 at the latest, Severino had not been 7 lawfully admitted for permanent resident status for the 8 requisite five years. 9 was actually terminated by operation of law on March 20, This mis-characterizes the IJ s ruling. The IJ As discussed above, Severino s status 10 1999; but in any event it is clear that Severino lacked the 11 requisite five years of lawful permanent residency. 12 therefore affirm the IJ s determination that Severino was 13 not entitled to cancellation of removal. We 14 III 15 16 Severino claims that he was denied due process during 17 the removal proceeding because the IJ erroneously assigned 18 him the burden to prove his entitlement to relief. 19 relied on 8 U.S.C. § 1186a, which places the burden in a 20 removal proceeding on an alien whose status has been 21 terminated for failure to appear at a personal interview 22 with spouse. The IJ Severino s premise is that because his status 10 1 as a lawful permanent resident was not terminated until an 2 adverse determination on his second I-751 petition, the 3 government bore the burden of proving that Severino was not 4 entitled to relief. 5 See 8 U.S.C. § 1186a(c)(3)(D). Severino did not present this due process claim to the 6 BIA. Congress has limited this court's power to review a 7 final order of removal to those removal orders for which 8 the alien has exhausted all administrative remedies 9 available to the alien as of right. Karaj v. Gonzales, 10 462 F.3d 113, 117 (2d Cir. 2006) (citing 8 U.S.C. § 11 1252(d)(1)). 12 may consider only those issues that the petitioner has 13 presented in substance to the BIA. 14 alien need not exhaust issues--including constitutional 15 claims--over which the BIA lacks jurisdiction, an alien must 16 raise procedural defects that the BIA has the power to 17 correct. 18 48 (2d Cir. 2002) ( While constitutional claims lie outside 19 the BIA s jurisdiction, it clearly can address procedural 20 defects in deportation proceedings. ). Because the bar is jurisdictional, the Court Id. And although an United States v. Gonzales-Roque, 301 F.3d 39, 47- 21 Even if he had preserved the issue for review, however, 22 Severino is not entitled to relief on his due process claim. 11 1 Contrary to his assertion, and as discussed above, 2 Severino s status was terminated because of his failure to 3 appear at the personal interview scheduled in connection 4 with his first I-751 petition. 5 clearly places the burden on the alien to establish his 6 compliance with the requirements for removal of conditions 7 on status. In such a case, the statute 8 U.S.C. § 1186a(c)(2)(B). 8 IV 9 10 Finally, Severino argues that the IJ erred when he 11 permitted the government, during the March 2006 immigration 12 hearing, to amend the Notice to Appear to allege that his 13 conditional permanent resident status had been terminated on 14 February 22, 2000. Severino failed to raise this claim before 15 the BIA, and we therefore lack jurisdiction to consider it. 16 8 U.S.C. § 1252(d)(1). 17 18 CONCLUSION 19 For the foregoing reasons, we deny Severino s petition 20 for review, except to the degree that we lack jurisdiction 21 over his unexhausted claims, in which respect we dismiss. 12

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