Bernal-Vallejo v. Immigration & Naturalization Serv.

• Decision Date: 02 November 1999
• Docket Number: BERNAL-VALLEJ,P,No. 99-1211,99-1211
• Citation: 195 F.3d 56
• Parties: (1st Cir. 1999) JAVIERetitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent
• Court: U.S. Court of Appeals — First Circuit

Page 56

195 F.3d 56 (1st Cir. 1999)

JAVIER BERNAL-VALLEJO, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 99-1211

United States Court of Appeals for the First Circuit

Submitted October 5, 1999

Decided November 2, 1999

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

James Hayes on brief for petitioner.

Nancy E. Friedman, Attorney, Office of Immigration Litigation, David W. Ogden, Acting Assistant Attorney General, and Richard M. Evans, Assistant Director, on brief for respondent.

Before Torruella, Chief Judge, Bownes, Senior Circuit Judge, and Lynch, Circuit Judge.

LYNCH, Circuit Judge.

Javier Bernal-Vallejo ("Bernal") has been ordered deported and petitions for judicial review of that order. Whether this court has jurisdiction over his petition is a matter affected by one provision of the transitional rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, div. C, 110 Stat. 3009-546 (1996) (IIRIRA). That provision, IIRIRA § 309(c)(4)(E), says that "there shall be no appeal of any discretionary decision under section . . . 244 [and other enumerated sections of the Immigration and Nationality Act]."

We hold that whether § 309(c)(4)(E) precludes jurisdiction depends on the precise grounds upon which the decision of the Board of Immigration Appeals rests and the precise nature of the claims made in the petition. That is, in general terms, § 309(c)(4)(E) precludes the exercise of jurisdiction only where: (1) the agency decision as to which review is sought is a "decision under" one of the enumerated sections, and (2) the agency decision rests on a ground that is committed to agency discretion. Conversely, § 309(c)(4)(E) does not preclude the exercise of jurisdiction where the decision is not a "decision under" an enumerated section or where the ground on which the decision rests is not one committed to agency discretion. Some components of decisions made under the enumerated sections are not committed to agency discretion but are instead determinations of objective facts. Where the decision rests on these latter grounds, review is not precluded by § 309(c)(4)(E). We reject the Immigration and Naturalization Service's position that any decision related to a final order under one of the enumerated sections is within the scope of § 309(c)(4)(E)'s prohibition of judicial review. Even if this section does not preclude review, though, other doctrines may.

In Bernal's case, we conclude that § 309(c)(4)(E) precludes jurisdiction over his claim that the BIA erred in finding under the Immigration and Naturalization Act § 244, 8 U.S.C. § 1254 (repealed 1996), that he had not demonstrated extreme hardship, a qualification for a suspension of deportation. We further conclude that the section does not preclude jurisdiction over his constitutional due process argument, but that he has not exhausted his administrative remedies as to that argument. We dismiss the petition.

I

Bernal is thirty-seven years old, single, and a citizen of Colombia. He studied chemical engineering in Colombia and his family still resides there. He entered this country without inspection in April 1986, his earlier application for a student visa having been denied. At some point after entry he bought a false social security card. In 1989 he attempted to obtain a green card fraudulently. With the help of an intermediary (to whom he paid $2500), he and others attempted to pass themselves off as agricultural workers in Florida. The scheme unraveled when the group went to the INS office for interviews and the officers concluded after the first two interviews that these people were not agricultural workers. By the time the agents got to Bernal, later in line, they believed there was a fraudulent scheme, so informed Bernal, and asked him to cooperate. Bernal did cooperate with the government; however, at Bernal's later deportation hearing, the INS judge commented that Bernal would have gone through with the fraud if it had not been caught prior to his interview. In August 1990 he received employment authorization from the INS good for one year. After the authorization expired, he began working as a travel agent in Boston, stating untruthfully on his job application form that he was a U.S. citizen.

Deportation proceedings commenced with an Order to Show Cause on September 18, 1995, more than four years ago. Bernal conceded deportability. On October 9, 1996, an Immigration Judge found Bernal deportable, denied his application for suspension from deportation, but granted his request for voluntary departure. He appealed, and the BIA issued a decision on January 25, 1999, dismissing his appeal. In order to establish eligibility for suspension of deportation, an alien must meet three statutory requirements. See INA § 244.¹ The applicant must have been physically present in the United States for a continuous period of at least seven years. See id. § 244(a)(1). Once that is established, the applicant must show that he is a person of good moral character and was so throughout the seven years. See id. Finally, the applicant must show that deportation would be an extreme hardship to himself or a parent spouse, or child who is a U.S. citizen or lawful permanent resident. See id. Once the three eligibility criteria have been met, relief is available at the Attorney General's discretion, see id. § 244(a), with the applicant bearing the burden of showing that he warrants relief. See Ramirez-Durazo v. INS, 794 F.2d 491, 497 (9th Cir. 1986) (stating that the alien bears the burden of demonstrating that he merits the favorable exercise of discretion to suspend deportation); see also Alvarez-Flores v. INS, 909 F.2d 1, 3 (1st Cir. 1990) (noting that the alien "bears the burden of proving eligibility for asylum and for withholding of deportation").

The IJ in this instance did not base her decision on the objective factual determinations of whether there had been seven years of residence or whether Bernal had a lawful resident parent, spouse, or child for whom his deportation might cause hardship. It was undisputed that Bernal had been in the United States for seven years and that he had no such relatives. Indeed, the IJ found that he was not barred by the good moral character requirement. Her decision turned on her judgment that he had not established extreme hardship and that even if he had, it would be a "very close call" whether discretion should be exercised to suspend deportation. The BIA affirmed on the ground that Bernal had not shown extreme hardship within the meaning of INA § 244(a)(1).

II

The arguments on appeal focus on whether § 309(c)(4)(E) precludes jurisdiction. Before reaching this question, there is a preliminary question of the source of any jurisdiction, even were § 309(c)(4)(E) preclusion not to apply. See Goncalves v. Reno, 144 F.3d 110, 113 (1st Cir. 1998), cert. denied, 119 S. Ct. 1140 (1999). Jurisdiction here arises under INA § 106(a), 8 U.S.C. § 1105a(a), as amended by IIRIRA.² The parties agree that this case is governed by the IIRIRA transitional rules because Bernal was placed in deportation proceedings before April 1, 1997, and the final order of deportation was issued after October 31, 1996. The INS agrees that this court has jurisdiction under 8 U.S.C. § 1105a(a) of this timely filed petition for review unless IIRIRA § 309(c)(4)(E) precludes review. The exact basis for the denial of suspension of deportation and the nature of the challenge to that denial are important to the issue of whether § 309(c)(4)(E) precludes jurisdiction.

A. Challenge Based on Extreme Hardship Determination

There is no dispute that the first criteria under § 309(c)(4)(E) is met: the decision from which Bernal appeals is a "decision under" one of the sections enumerated in § 309(c)(4)(E), specifically, § 244. See Stewart v. INS, 181 F.3d 587, 594 (4th Cir. 1999); see also Reno v. American-Arab Anti-Discrimination Comm., 119 S. Ct. 936, 943 (1999) (stating that jurisdictional restrictions in 8 U.S.C. § 1252(g) apply only to "three discrete actions the Attorney General may take: her decision or action to commence proceedings, adjudicate cases, or execute removal orders.") (internal quotation marks omitted).

We turn to the second criteria: whether the decision turns on a matter committed to agency discretion. The INS argues broadly that any order denying discretionary motions seeking the underlying relief identified in § 309(c)(4)(E), such as adjustment of status or suspension of deportation under INA § 244, is within the jurisdictional prohibition of the section. We disagree and think the statute requires a more nuanced interpretation.

Section 309(c)(4)(E) does not bar all appeals from final orders in the types of cases described by the referenced statutory sections, but only bars appeals of "discretionary" decisions made under those sections. This language contrasts with IIRIRA § 309(c)(4)(G), which does preclude "appeals" in cases of aliens who are inadmissible or deportable because they committed certain felonies. Compare id. § 309(c)(4)(E) ("[T]here shall be no appeal of any discretionary decision under [various sections of the INA] . . . ."), with id. § 309(c)(4)(G) ("[T]here shall be no appeal permitted in the case of an alien who is inadmissable or deportable by reason of having committed [certain criminal offenses] . . . ."), and Ruckbi v. INS, 159 F.3d 18, 21 (1st Cir. 1998) (discussing absolute bar to any review by the courts of appeals in cases falling under § 309(c)(4)(G)). The question then becomes one of what is meant by the term "discretionary decision." It is clear that some aspects of a decision by the BIA as to whether suspension of deportation should be granted require objective factual determinations and that Congress gave the agency no discretion as to these determinations, while other aspects of the decision are discretionary.

One non-discretionary...