Rashtabadi v. I.N.S., 92-70747

• Decision Date: 05 April 1994
• Docket Number: No. 92-70747,92-70747
• Parties: Khosrow Gharib RASHTABADI, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent. . Submitted *
• Court: U.S. Court of Appeals — Ninth Circuit

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23 F.3d 1562

Khosrow Gharib RASHTABADI, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.

No. 92-70747.

United States Court of Appeals Ninth Circuit.

Submitted ^* April 5, 1994.

Decided May 11, 1994.

Gary Silbiger, Silbiger & Honig, Los Angeles, CA, for petitioner Khosrow Gharib Rashtabadi.

Carl H. McIntyre, Jr., Office of Immigration Litigation, U.S. Dept. of Justice, Washington, DC, for respondent I.N.S Petition for Review of Decision of the Board of Immigration Appeals.

Before: HALL, LEAVY, and FERNANDEZ, Circuit Judges.

Opinion by Judge FERNANDEZ.

FERNANDEZ, Circuit Judge:

Khosrow Rashtabadi, a citizen of Iran, petitions for review of the Board of Immigration Appeals' affirmance of an immigration judge's decision which found him deportable under 8 U.S.C. Sec. 1251(a)(1), denied his application for adjustment of status, 8 U.S.C. Sec. 1255(a), found him ineligible for a waiver of inadmissibility, 8 U.S.C. Sec. 1182(h), and denied his request for voluntary departure, 8 U.S.C. Sec. 1254(e). We dismiss the petition in part, grant it in part, and deny it in part.

BACKGROUND

Rashtabadi came to this country from Iran in 1980. At the time of his entry, he did not have any valid entry documentation. In July 1982, Rashtabadi was arrested for his part in an elaborate fraud scheme in which several investors were held hostage at a house during a fake "police raid." On July 23, 1982, while he was awaiting trial on grand theft and false imprisonment charges, the INS served an order to show cause on Rashtabadi. It alleged that he was deportable under 8 U.S.C. Sec. 1251(a)(1) as an alien who entered for the purpose of residing permanently in the United States without a valid immigrant visa or other entry documents.

Subsequently, Rashtabadi was convicted of false imprisonment and grand theft. On February 1, 1983, a state superior court judge sentenced him to seven years and four months in prison. Rashtabadi's request that the court issue a Judicial Recommendation Against Deportation ("JRAD"), 8 U.S.C. Sec. 1251(b)(2) (repealed 1990), was denied, and he appealed. Although there is no documentation in the administrative record regarding the outcome of the appeal, on October 1, 1984, Rashtabadi's sentence was reduced to six years imprisonment and his renewed request for a JRAD was granted.

Upon his release from prison, Rashtabadi's deportation proceeding began. At a January 28, 1986 hearing, his attorney admitted the allegations of the OSC and the charge of deportability. Rashtabadi eventually applied for adjustment of status, 8 U.S.C. Sec. 1255(a), and voluntary departure, 8 U.S.C. Sec. 1254(e). The immigration judge denied both applications.

Rashtabadi then appealed to the BIA, where he argued that: 1) because his JRAD was effective and barred the IJ from considering the conviction in making the admissability determination, the IJ erred in finding him inadmissable to the United States under 8 U.S.C. Sec. 1182(a)(9) on the basis of his grand theft conviction; 2) even if he were inadmissable, his application for a waiver of inadmissibility was improperly denied because he demonstrated that his deportation would result in extreme hardship to his citizen spouse; and 3) the IJ erred in using his conviction to deny his application for voluntary departure. The BIA reviewed the case de novo, rejected all of petitioner's arguments, and affirmed the IJ's oral decision. This petition for review ensued.

JURISDICTION AND STANDARD OF REVIEW

A. Standard of Review

The BIA's review of an order denying adjustment of status is reviewed for abuse of discretion. Jen Hung Ng v. INS, 804 F.2d 534, 538 (9th Cir.1986); Soo Yuen v. INS, 456 F.2d 1107, 1108 (9th Cir.1972) (per curiam). The same standard of review applies to BIA decisions denying discretionary relief from deportation, Foti v. INS, 375 U.S. 217, 228, 84 S.Ct. 306, 313, 11 L.Ed.2d 281 (1963); Yepes-Prado v. INS, 10 F.3d 1363, 1366-67 (9th Cir.1993); Vargas v. United States Dept. of Immigration and Naturalization, 831 F.2d 906, 908 (9th Cir.1987), and to the discretionary denial of an application for voluntary departure. Abedini v. INS, 971 F.2d 188, 191 (9th Cir.1992).

Because the BIA undertook a de novo review of the propriety of all of the forms of relief for which Rashtabadi applied, we review its decision, not that of the IJ. See Yepes-Prado, 10 F.3d at 1366-67; Elnager v. INS, 930 F.2d 784, 787 (9th Cir.1991); cf. Campos-Granillo v. INS, 12 F.3d 849, 852 (9th Cir.1993) (where BIA fails to perform independent review of IJ's decision, court of appeals must review the IJ's decision de novo).

B. Jurisdiction

The BIA had jurisdiction to review the immigration judge's decision under 8 C.F.R. Secs. 3.1(b)(2), 242.21 (1993). In general, we have jurisdiction to review the BIA's order pursuant to 8 U.S.C. Sec. 1105a(a).

However, Rashtabadi raises two arguments in his petition to this court that he did not raise before the BIA. He argues that his admission of deportability should be overturned because the immigration judge failed to advise him of his constitutional and statutory rights before accepting his admission, and because his attorney admitted deportability without his consent. We lack jurisdiction to resolve either of these issues.

Absent overriding justification, an alien must exhaust his administrative remedies prior to seeking review of a deportation order. Failure to raise an issue in an appeal to the BIA constitutes a failure to exhaust remedies with respect to that question and deprives this court of jurisdiction to hear the matter.

Vargas, 831 F.2d at 907-08 (citation omitted); accord Contreras-Buenfil v. INS, 712 F.2d 401, 404 (9th Cir.1983); see 8 U.S.C. Sec. 1105a(c). An exception to the exhaustion requirement has been carved for constitutional challenges to the Immigration and Naturalization Act and INS procedures. El Rescate Legal Servs., Inc. v. Executive Office of Immigration Review, 959 F.2d 742, 746-48 (9th Cir.1991). Because the BIA has no jurisdiction to adjudicate constitutional issues, the Act's exhaustion requirement does not preclude petitioners from raising them for the first time before the Court of Appeals. Bagues-Valles v. INS, 779 F.2d 483, 484 (9th Cir.1985).

Notwithstanding the exception, "a petitioner cannot obtain review of procedural errors in the administrative process that were not raised before the agency merely by alleging that every such error violates due process." Reid v. Engen, 765 F.2d 1457, 1461 (9th Cir.1985). Those allegations do not guarantee review in the court of appeals of "procedural errors correctable by the administrative tribunal." Id.; accord Bagues-Valles, 779 F.2d at 484.

Rashtabadi's allegations of due process violations are exactly the sorts of procedural errors which require exhaustion. Given the opportunity, the BIA could have corrected any of the alleged procedural errors. See Matter of Lemhammad, Interim Decision No. 3151 at 12, 1991 WL 353518 at * 14-* 16 (BIA1991) (alleged denial of right to confront witnesses); Matter of Duran, Interim Decision No. 3101 at 3, 1989 WL 331857 at * 4 (BIA1989) (immigration judge's alleged failure to advise alien of his rights and other due process violations). Thus, since Rashtabadi did not present his arguments to the BIA, we have no jurisdiction to resolve them.

To the extent that Rashtabadi argues that because he was represented on appeal by the same counsel who represented him at his deportation hearing, he could not raise his consent claim, he can move the Board to reopen his appeal. Vides-Vides v. INS, 783 F.2d 1463, 1470 (9th Cir.1986) (discussing raising ineffective assistance claims before the BIA on a motion to reopen after substituting counsel); Roque-Carranza v. INS, 778 F.2d 1373, 1373-74 (9th Cir.1985) (same); see 8 C.F.R. Secs. 3.2, 3.8(a) (1993) (procedures for motion to reopen or reconsider). Thus, we dismiss this part of his petition for lack of jurisdiction.

DISCUSSION

Rashtabadi's arguments can be grouped into two primary claims. The first is that he was entitled to have the BIA exercise its discretion to adjust his status. The second is that he was entitled to a favorable exercise of discretion on his request for voluntary departure.

A. Adjustment of Status

Every alien who applies for adjustment of status under 8 U.S.C. Sec. 1255 bears the burden of proving that he meets the statutory requirements for eligibility. Id. Sec. 1255(a); Kim v. Meese, 810 F.2d 1494, 1496 (9th Cir.1987).

Even if the alien succeeds in making the required showing of eligibility, however, the INS's decision to grant an adjustment of status is purely discretionary. Adjustment of status is an extraordinary remedy to be granted only in meritorious cases, and the alien has the burden of persuading the [INS] to exercise [its] discretion favorably. Every adjustment of status, therefore, is predicated upon both a showing of eligibility and a favorable exercise of agency discretion.

Id. at 1497 (internal citations and quotations omitted) (alterations in original).

One of the elements of eligibility for adjustment is that "the alien is ... admissible to the United States for permanent residence[.]" 8 U.S.C. Sec. 1255(a)(2). An alien is excludable from admission into the United States if he has been "convicted of ... a crime involving moral turpitude[.]" Id. Sec. 1182(a)(2)(A)(i)(I).

(1) Statutory Eligibility

Rashtabadi was convicted of two counts of grand theft, Cal.Penal Code Sec. 487(1) (West 1988), which is a crime of moral turpitude. Matter of Chen, 10 I. & N. Dec. 671, 672 (BIA1964). As a result, the BIA found that he was excludable from admission to the United States, 8 U.S.C. Sec. 1182(a)(2)(A)(i)(I), and, therefore, ineligible for adjustment of status, id. Sec. 1255(a)(2), unless he could prove entitlement to a waiver of inadmissibility. That determination was erroneous.

When it resentenced Rashtabadi, the state court issued a JRAD...