Ahmed v. Holder

• Decision Date: 27 October 2010
• Docket Number: Docket No. 09-4247-ag.
• Citation: 624 F.3d 150
• Parties: Gamal Ahmed Mohamed AHMED, Petitioner, v. Eric J. HOLDER, Jr., Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

624 F.3d 150

Gamal Ahmed Mohamed AHMED, Petitioner,

v.Eric J. HOLDER, Jr., Attorney General of the United States, Respondent.

Docket No. 09-4247-ag.

United States Court of Appeals,Second Circuit.

Argued: Sept. 29, 2010.

Decided: Oct. 27, 2010.

Robert D. Kolken, Kolken & Kolken (Julie Kruger, on the brief), Buffalo, NY, for petitioner.

Jeffrey L. Menkin, Trial Attorney, Office of Immigration Litigation (Tony West, Assistant Attorney General, and Christopher C. Fuller, Senior Litigation Counsel, on the brief), Washington, D.C., for respondent.

Before: JACOBS, Chief Judge, FEINBERG and CABRANES, Circuit Judges.

PER CURIAM:

Gamal Ahmed Mohamed Ahmed ¹ (“petitioner” or “Ahmed”) petitions for review of a September 29, 2009 order of the Board of Immigration Appeals (“BIA”) denying his request for a waiver of inadmissibility under § 237(a)(1)(H) of the Immigration and Nationality Act (“INA”). ² 8 U.S.C. § 1227(a)(1)(H). Ahmed argues that the BIA's decision to deny him a waiver of inadmissibility was unsupported by substantial evidence; that the BIA abused its discretion in denying his equitable estoppel claim; and that the BIA abused its discretion in holding that the Immigration Judge (“IJ”) did not err when he declined to conduct a third evidentiary hearing.

Our holding here is clearly dictated by the applicable INA provision and has already been adopted by three other sister Courts of Appeals, though not yet by our own Court-namely, that we lack jurisdiction to review the BIA's discretionary denial of a waiver of inadmissibility under § 237(a)(1)(H). Accordingly, we dismiss the petition for review for want of jurisdiction to the extent that it challenges the discretionary denial of a waiver under § 237(a)(1)(H). We furthermore deny the remaining portions of the petition for review insofar as they challenge other aspects of the BIA's decision dismissing petitioner's appeal from the IJ's denial of his application for a waiver of inadmissibility.

BACKGROUND

On January 8, 1991, Ahmed, a citizen of Yemen, appeared at the United States Embassy in Yemen for an interview regarding his application for an immigrant visa as the unmarried son of a United States citizen. He was issued the visa later that day. On January 15, 1991, while still in Yemen, Ahmed entered into a marriage. On February 22, 1991, he appeared at the New York port of entry and was admitted under the visa granted to him as an unmarried son of a U.S. citizen.

More than five years later, on October 10, 1996, Ahmed filed an application for naturalization. During the resulting investigation, the government learned of his Yemeni marriage.

On November 25, 1997, the INS served Ahmed with a Notice to Appear alleging that he had procured his visa by fraud and was therefore inadmissible under INA § 212(a)(6)(C)(i); ³ the Notice, moreover, alleged that he was not in possession of a valid unexpired immigrant visa and was therefore inadmissible under INA § 212(a)(7)(A)(i). ⁴ The government subsequently dropped the charge involving visa procurement by fraud.

In response, Ahmed applied for a § 237(a)(1)(H) waiver, see note 2 ante, which the IJ denied in the exercise of discretion. At this time, Ahmed appealed to the BIA, which held that he was statutorily ineligible for a § 237(a)(1)(H) waiver because the government had dropped the charge of inadmissibility involving visa procurement by fraud. The BIA remanded the case, however, for a determination as to whether he was eligible for a waiver under INA § 212(k), ⁵ which governs waivers for failure to possess a valid unexpired visa. On May 19, 2003, the government reinstated the charge involving procurement by fraud.

On August 24, 2004, the IJ determined that petitioner was ineligible for a § 212(k) waiver because he knew or should have known that he was ineligible for admission due to his marriage. The BIA upheld that determination on January 17, 2006, and petitioner sought review in our Court.

On August 29, 2007, we vacated all prior judgments of the BIA and the IJ with respect to Ahmed's applications for waivers of inadmissibility and remanded to the BIA with instructions to remand, in turn, to the IJ pursuant to a “Stipulation and Order of Settlement and Dismissal” entered into by the parties on June 29, 2007. Under the stipulation, the IJ was directed to examine: (1) whether petitioner was eligible for a § 237(a)(1)(H) waiver of the fraud charge in light of In re Guang Li Fu, 23 I. & N. Dec. 985 (BIA 2006); (2) whether petitioner was eligible for a § 212(k) waiver of the expired visa charge; and (3) whether petitioner merited either waiver in the exercise of the IJ's discretion.

On September 10, 2008, the IJ heard arguments regarding the issues on remand. On December 1, 2008, the IJ issued a decision in which he held that Ahmed was ineligible for a § 212(k) waiver. The IJ ruled in the alternative (if one assumed, for the sake of argument, that he was eligible for consideration of a waiver under § 212(k)), that Ahmed did not merit a favorable exercise of discretion under § 212(k) because his business was engaged in (1) “multiple types of criminal behavior” and because (2) he was “serious[ly] derelict[ ]” in providing support for his children. Finally, the IJ held that Ahmed was statutorily eligible for a § 237(a)(1)(H) waiver, but that he did not merit a favorable exercise of discretion for those same two reasons. On September 29, 2009, the BIA affirmed the IJ's decision and dismissed Ahmed's application for a waiver of inadmissibility.

On October 14, 2009, Ahmed filed a timely petition for review with our Court.

DISCUSSION

A.

Issues not briefed on appeal are considered abandoned. See Norton v. Sam's Club, 145 F.3d 114, 117 (2d Cir.1998). On appeal from the BIA, Ahmed makes no claim regarding the denial of his application for a waiver of inadmissibility under § 212(k). Accordingly, he has abandoned any challenge to that ruling.

B.

Ahmed claims the BIA abused its discretion because, among other things, its denial of his § 237(a)(1)(H) waiver was “not supported by reasonable, substantial, and probative evidence in the record” and did not reflect a proper balancing of the positive and negative factors bearing on his request.

Our jurisdiction is limited by 8 U.S.C. § 1252(a)(2)(B)(ii), which provides, in relevant part: “[N]o court shall have jurisdiction to review ... any [ ] decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under [Title II of the INA] to be in the discretion of the Attorney General or the Secretary of Homeland Security.” Ahmed sought relief from removal under § 237(a)(1)(H), a provision contained within Title II of the INA that expressly commits to the discretion of the Attorney General the decision of whether to waive removal. Not surprisingly, the three other Courts of Appeals faced with this question have all found that a waiver of inadmissibility under § 237(a)(1)(H) unambiguously falls within the jurisdiction-stripping provision of § 1252(a)(2)(B)(ii). See Zajanckauskas v. Holder, 611 F.3d 87, 89-90 (1st Cir.2010) (finding no jurisdiction to review the discretionary denial of a waiver of inadmissibility under § 237(a)(1)(H)); Singh v. Gonzales, 451 F.3d 400, 410-11 (6th Cir.2006) (same); San Pedro v. Ashcroft, 395 F.3d 1156, 1157-58 (9th Cir.2005) (same).

We have never addressed the question of our jurisdiction over the discretionary denial of a § 237(a)(1)(H) waiver, but we have held that we lack jurisdiction to review denials of other, similar discretionary waivers, such as § 212(c) and § 212(d)(11) waivers, which are governed by the same § 1252(a)(2)(B)(ii) jurisdictional provision. See Avendano-Espejo v. Dep't of Homeland Sec., 448 F.3d 503, 505-06 (2d Cir.2006) (finding no jurisdiction over a discretionary denial of a § 212(c) waiver); Saloum v. U.S.C.I.S., 437 F.3d 238, 242-43 (2d Cir.2006) (finding no jurisdiction over a discretionary denial of a § 212(d)(11) waiver); see also Xiao Ji Chen v. U.S. Dep't of Justice, 434 F.3d 144, 154 (2d Cir.2006) (“Because the REAL ID Act only provides us with jurisdiction to review constitutional claims or matters of statutory construction, we remain deprived of jurisdiction to review discretionary ... determinations [by the BIA or IJ].”). In those cases, we found that the plain text of 8 U.S.C. § 1252(a)(2)(B)(ii) prohibited our exercise of jurisdiction. We see no reason to find otherwise in the instant case, which involves a different category of waiver-specifically, a waiver for procurement of a visa by fraud-but that, like those other waivers, is one “specified ... to be in the discretion of the Attorney General.” 8 U.S.C. § 1252(a)(2)(B)(ii). Accordingly, we hold that § 1252(a)(2)(B)(ii) prohibits our review of a discretionary denial of an application for a § 237(a)(1)(H) waiver.

We may, of course, review Ahmed's petition if it raises “colorable constitutional claims or questions of law.” Bugayong v. INS, 442 F.3d 67, 68 (2d Cir.2006) (quotation marks omitted). Here, Ahmed's challenge is best characterized not as a “question of law,” but rather, as a disagreement with the outcome of a lawful exercise of discretion. This portion of Ahmed's petition is therefore dismissed for want of jurisdiction.

C.

Ahmed also argues that the BIA erred in declining to exercise its equitable authority to withhold removal. Specifically, he claims that it would be a manifest injustice for the government to enforce the terms of his visa and remove him from the United States, because (1) the consular officer who issued the visa did not warn Ahmed, as required by State Department regulations, that he would have to remain unmarried until he entered the United States, and (2) the consular officer did not require him to sign a Statement of Marriageable Age. The government responds that Ahmed did not demonstrate the sort of affirmative misconduct by government actors that is necessary to...