Pechenkov v. Holder Jr., No. 08-73287 (9th Cir. 2012)
Annotate this CasePetitioner, a native and citizen of Russia, petitioned for review of the BIA's denial of withholding of removal and adjustment of status. The court held that it lacked jurisdiction pursuant to 8 U.S.C. 1252(a)(2)(C) over petitioner's challenge to the discretionary determination finding him ineligible for withholding because the crime underlying his removeability was a particularly serious crime; the court upheld the revocation of petitioner's asylee status pursuant to 8 C.F.R. 208.24(a)(2), also due to his conviction; and the court denied petitioner's constitutional challenge to the provisions precluding adjustment of status after his asylee status was revoked.
Court Description: Immigration. The panel dismissed in part and denied in part Mikhail G. Pechenkov’s petition for review of the Board of Immigration Appeals’ denial of withholding of removal and adjustment of status. The panel held that it lacked jurisdiction pursuant to 8 U.S.C. § 1252(a)(2)(C) over Pechenkov’s challenge to the discretionary determination finding him ineligible for withholding because the crime underlying his removability was a “particularly serious crime.” The panel upheld the revocation of Pechenkov’s asylee status pursuant to 8 C.F.R. § 208.24(a)(2), also due to his conviction, and denied Pechenkov’s constitutional challenge to the provisions precluding adjustment of status after his asylee status was revoked. Judge Graber, concurring, agreed that in this case the court lacks jurisdiction to review the BIA's "particularly serious crime" determination, but wrote separately to urge the court to consider revisiting, in an appropriate case, what she believes is an erroneous reading of § 1252(a)(2)(C). Judge Graber wrote that this court alone has created an "on-the-merits" exception, allowing review of a merits-based denial of relief, as opposed to a denial based on ineligibility due to a criminal conviction. She would rather simply inquire as to whether an alien is charged with removability because of a relevant crime and whether the IJ correctly sustained the charge, and find that if so, the court lacks jurisdiction over questions not covered by § 1252(a)(2)(D).
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.