395 F.3d 722 (7th Cir. 2005), 02-3761, Ali v. Ashcroft

Docket Nº:02-3761, 03-3112.
Citation:395 F.3d 722
Party Name:Mirwais ALI, Petitioner, v. John D. ASHCROFT, Attorney General of the United States, [1] Respondent.
Case Date:January 11, 2005
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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395 F.3d 722 (7th Cir. 2005)

Mirwais ALI, Petitioner,

v.

John D. ASHCROFT, Attorney General of the United States, 1 Respondent.

Nos. 02-3761, 03-3112.

United States Court of Appeals, Seventh Circuit

January 11, 2005

Argued Feb. 25, 2004

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Taher Kameli (argued), Chicago, IL, for Petitioner.

George P. Katsivalis, Department of Homeland Security, Office of the District Counsel, Chicago, IL, William C. Peachey, Larry P. Cote (argued), Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before EASTERBROOK, ROVNER, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge.

Mirwais Ali, a native and citizen of Afghanistan, came to the United States at the age of three. At eighteen, Ali had several encounters with the law resulting in three state convictions, which triggered removal proceedings by the immigration authorities. For the reasons discussed below we find that the Child Citizenship Act of 2000 does not apply retrospectively and thus does not provide Ali any relief. We also find that although Ali's felony conviction was vacated and reduced to a misdemeanor by the Wisconsin state courts, it was reasonable for the Board of Immigration Appeals ("BIA") to hold that Ali's vacated felony remains a felony for immigration purposes. Also, we conclude that the BIA's denial of Ali's Convention Against Torture ("CAT") claim was supported by substantial evidence. Finally, we find that Ali has no liberty or property interest in the discretionary relief he sought--in this case cancellation of removal. Therefore we lack jurisdiction to review his due process claim. Thus, we affirm the Immigration Judge's citizenship determination, the BIA's Convention Against Torture determination, and the BIA's denial of Ali's motion to reconsider. And we dismiss Ali's withholding of removal claim for lack of jurisdiction.

I. BACKGROUND

Ali was born in Afghanistan in 1979, immigrated with his parents to the United States at the age of three, and was granted lawful permanent resident status on March 1, 1982. Ali's mother became a U.S. citizen in 1991, when Ali was still a minor. Since 1982, Ali has resided in the United States and has not left the country. He does not speak any of the native languages of Afghanistan nor does he have any family or friends there.

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As a teenager, Ali was convicted of various offenses in Wisconsin state court: receiving stolen property (1997), possession with intent to distribute tetrahydrocannabinol ("THC"), the active ingredient in marijuana (1998), and receiving stolen property (2000). Following these convictions, what was then the Immigration and Naturalization Service ("INS") initiated removal proceedings against Ali. In his Notice to Appear, the INS claimed Ali was removable under the Immigration and Nationality Act ("INA"), for having been convicted, after admission to the United States, of: (1) an aggravated felony relating to illicit trafficking of a controlled substance; (2) a controlled substance offense "other than a single offense involving possession of one's own use of 30 grams or less of marijuana"; and (3) "two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct." He was taken into INS custody in November 2001 and has remained in detention since that time.

Ali made several claims to defeat removal. On May 16, 2002, the Immigration Judge ("IJ") denied all of Ali's applications for relief, making the following findings: (1) he was not a U.S. citizen under the Child Citizenship Act of 2000 ("CCA"); (2) having been convicted of an aggravated felony, possession with intent to distribute THC, he was statutorily ineligible for cancellation of removal; (3) he was also statutorily ineligible for asylum because his felony conviction constitutes a "particularly serious crime"; (4) his conviction for a particularly serious crime also precluded his eligibility for withholding of removal; and (5) he had not made out a claim for relief under CAT. Finding that Ali failed to designate a country of removal, the IJ ordered Ali removed to Afghanistan. The IJ also stated that if the Wisconsin state court would vacate or modify Ali's felony drug conviction to the misdemeanor of mere possession, Ali could avoid removal by filing a motion to reopen consideration of his case to apply for cancellation of removal. The BIA affirmed the IJ's decision without opinion on September 27, 2002.

On March 7, 2003, the Dane County Circuit Court of Wisconsin entered an order amending Ali's felony conviction of possession with intent to deliver THC to "simple misdemeanor Possession of THC." On May 2, 2003, Ali filed with the BIA a motion to reopen his removal proceedings to present a cancellation of removal claim based upon the Wisconsin state court's amendment of his conviction. On May 21, 2003, the BIA denied Ali's motion as untimely. On June 12, 2003, Ali filed a motion to reconsider the Board's May 21 decision. On July 28, 2003, the BIA denied the motion for reconsideration, applying its June 11, 2003 ruling in Matter of Pickering, 23 I. & N. Dec. 621, 2003 WL 21358480 (BIA 2003) to conclude that, despite the modification of his sentence to a misdemeanor, Ali remained convicted of an aggravated felony for immigration purposes and was statutorily ineligible to apply for cancellation from removal. Ali now appeals the following decisions: (1) the IJ's citizenship determination under the CCA, affirmed by the BIA without opinion; (2) the IJ's denial (also affirmed by the BIA without opinion) of Ali's petition for withholding of removal and his claim for relief under CAT; and (3) the BIA's denial of Ali's motion to reconsider.

II. ANALYSIS

A. Child Citizenship Act of 2000

Ali claims that he cannot be removed from the United States because he is a U.S. citizen under the Child Citizenship Act of 2000, Pub.L. No. 106-395, § 101(a), 114 Stat. 1631 (2000), codified at 8 U.S.C. § 1431(a). We must decide the nationality claim when no "genuine issue of material fact about the petitioner's nationality

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is presented." 8 U.S.C. § 1252(b) (5) (A); Gomez-Diaz v. Ashcroft, 324 F.3d 913, 915 (7th Cir. 2003). We review legal issues presented in such claims de novo but defer to the BIA's factual findings, reversing them only if they lack the support of substantial evidence in the record. Gomez-Diaz, 324 F.3d at 915. Because the BIA affirmed the IJ's citizenship determination without opinion, the IJ's opinion becomes the basis of our review. Vladimirova v. Ashcroft, 377 F.3d 690, 695 (7th Cir. 2004); Ememe v. Ashcroft, 358 F.3d 446, 450 (7th Cir. 2004).

The CCA changed the way in which children of non-American citizens born outside the United States become eligible for citizenship. It amended § 320 of the INA and grants automatic American citizenship to children who are born outside of the United States when the following three conditions have been met: (1) at least one parent of the child is a citizen of the United States, whether by birth or naturalization; (2) the child is under the age of eighteen years; and (3) the child is residing in the United States in the legal and physical custody of the citizen parent pursuant to a lawful admission for permanent residence. 8 U.S.C. § 1431(a).

Section 104 of the new law provides that this amendment "shall take effect 120 days after the date of the enactment of this Act and shall apply to individuals who satisfy the requirements of section 320 ... of the Immigration and Nationality Act, as in effect on such effective date." Pub.L. No. 106-395, Title I, § 104, 114 Stat. 1633 (2000). As the CCA was signed by the President on October 30, 2000, the amendments became effective on February 27, 2001. We have construed the CCA not to apply retrospectively, see Dave v. Ashcroft, 363 F.3d 649, 654 (7th Cir. 2004); Gomez-Diaz, 324 F.3d at 916. The BIA and other circuits have also construed the CCA in this fashion. See, e.g., In Re Rodriguez-Tejedor, 23 I. & N. Dec. 153, 2001 WL 865412 (BIA 2001); Drakes v. Ashcroft, 323 F.3d 189, 191 (2d Cir. 2003). Therefore, even though Ali's mother is a U.S. citizen, Ali does not qualify for automatic citizenship under the CCA because he was over the age of eighteen on February 27, 2001, the CCA's effective date. Dave,...

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