704 F.3d 234 (2nd Cir. 2013), 12-703 (ag), Shabaj v. Holder

Docket Nº:12-703 (ag).
Citation:704 F.3d 234
Opinion Judge:PER CURIAM:
Party Name:Paulin SHABAJ, Plaintiff-Appellant, v. Eric H. HOLDER, Jr., Attorney General; Department of Homeland Security; Janet Napolitano, Secretary, Department of Homeland Security; United States Citizenship and Immigration Services; Lori Scialabba, Deputy Director, United States Citizenship and Immigration Services; Andrea Quarantillo, District Director, N
Attorney:Michael P. DiRaimondo (Marialaina L. Masi and Stacy A. Huber, on the brief), DiRaimondo & Masi LLP, Melville, NY, for Plaintiff-Appellant. Patricia L. Buchanan, Assistant United States Attorney (Sarah S. Normand, Assistant United States Attorney, on the brief), for Preet Bharara, United States At...
Judge Panel:Before: KEARSE and KATZMANN, Circuit Judges, and GLEESON, District Judge.
Case Date:January 15, 2013
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 234

704 F.3d 234 (2nd Cir. 2013)

Paulin SHABAJ, Plaintiff-Appellant,

v.

Eric H. HOLDER, Jr., Attorney General; Department of Homeland Security; Janet Napolitano, Secretary, Department of Homeland Security; United States Citizenship and Immigration Services; Lori Scialabba, Deputy Director, United States Citizenship and Immigration Services; Andrea Quarantillo, District Director, New York District Office; Perry Rhew, Chief, Administrative Appeals Office, Defendants-Appellees.

No. 12-703 (ag).

United States Court of Appeals, Second Circuit.

January 15, 2013

Argued: Oct. 15, 2012.

Page 235

Michael P. DiRaimondo (Marialaina L. Masi and Stacy A. Huber, on the brief), DiRaimondo & Masi LLP, Melville, NY, for Plaintiff-Appellant.

Patricia L. Buchanan, Assistant United States Attorney (Sarah S. Normand, Assistant United States Attorney, on the brief), for Preet Bharara, United States Attorney for the Southern District of New York, New York, NY, for Defendants-Appellees.

Before: KEARSE and KATZMANN, Circuit Judges, and GLEESON,[*]

District Judge.

PER CURIAM:

Plaintiff-Appellant Paulin Shabaj (" Shabaj" ) appeals from a December 21, 2011 judgment of the United States District Court for the Southern District of New York (Hellerstein, J. ) dismissing his complaint.

Page 236

The judgment was entered in accordance with a December 19, 2011 order holding that the district court lacked jurisdiction to review the decision of the United States Citizenship and Immigration Services (" CIS" ) to deny Shabaj's application for a waiver of inadmissibility pursuant to section 212(i) of the Immigration and Nationality Act (" INA" ), 8 U.S.C. § 1182(i) (a " 212(i) waiver" ). Because the plain language of the INA provides that judicial review of such decisions is available only for " constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals, " 8 U.S.C. § 1252(a)(2)(D) (emphasis added), the district court correctly determined that it lacked jurisdiction to adjudicate Shabaj's claims. The judgment of the district court is therefore AFFIRMED.

BACKGROUND

Shabaj, a native and citizen of Albania, arrived in the United States in November 2000 bearing a false passport of Italy. See Shabaj v. Holder, 602 F.3d 103, 104 (2d Cir.2010).1 Shabaj was detained upon arrival, and he was referred to an Immigration Judge for an asylum-only proceeding. Id. Shabaj's attempts to obtain asylum in the United States ultimately proved unsuccessful. See generally id. at 104-06.

While asylum proceedings were ongoing, Shabaj married a United States citizen in July 2005. CIS concluded that Shabaj's marriage was bona fide and approved his wife's marriage-based visa petition (immigration form I-130), which allowed Shabaj to file an application for adjustment of status. However, because Shabaj had attempted to enter the United States by fraud, he was also required to file an application for a waiver of inadmissibility pursuant to INA section 212(i), which provides that the Attorney General may, in his discretion, waive an immigrant alien's inadmissibility if " the refusal of admission to the United States of such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such an alien." 8 U.S.C. § 1182(i); see also Jun Min Zhang v. Gonzales, 457 F.3d 172, 174 (2d Cir.2006) (indicating that alien who has engaged in immigration fraud cannot adjust status absent a waiver of inadmissibility under INA § 212(i)).

Shabaj filed two separate applications for adjustment of status and a waiver of inadmissibility, which CIS denied in February 2007 and January 2009, respectively. On May 2, 2011, CIS's Administrative Appeals Office (" AAO" ) dismissed...

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