Billeke-Tolosa v. Ashcroft

• Decision Date: 30 September 2004
• Docket Number: No. 02-4395.,02-4395.
• Citation: 385 F.3d 708
• Parties: Sergio Waldmir BILLEKE-TOLOSA, Petitioner-Appellant, v. John ASHCROFT, Attorney General, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

385 F.3d 708

Sergio Waldmir BILLEKE-TOLOSA, Petitioner-Appellant, v. John ASHCROFT, Attorney General, Respondent-Appellee.

No. 02-4395.

United States Court of Appeals, Sixth Circuit.

Submitted August 12, 2004.

Decided and Filed September 30, 2004.

Appeal from the Board of Immigration Appeals.

Barry L. Frager (briefed), Frager Law Firm, Memphis, TN, for Appellant.

Deborah Misir, Mary Jane Candaux (briefed), United States Department of Justice, Washington, DC, for Appellee.

Before: MOORE and COLE, Circuit Judges; MARBLEY, District Judge.^*

COLE, JR., Circuit Judge.

Petitioner-Appellant Sergio Billeke-Tolosa contends that the Board of Immigration Appeals ("BIA"), in affirming the decision of the Immigration Judge ("IJ"), violated its own rules by peering behind Billeke-Tolosa's convictions for the lesser offenses of simple assault and disorderly conduct to use the underlying allegations of sexual impropriety as the basis for denying his petition for an adjustment of status. The Government rejoins that we lack jurisdiction to review the BIA's decision, and that in any event, all procedural rules were followed. Because the Government's first contention is refuted by our own precedent, and its second by that of the BIA, the order of removal is VACATED and the case is REMANDED.

I. BACKGROUND

In early 1990, courtesy of a student visa, Billeke-Tolosa arrived in the United States from his native Chile. Although the visa required him to enroll at the University of Southern Mississippi, Billeke-Tolosa subsequently transferred to the University of Memphis, and eventually retired altogether from his studies. On June 14, 1995, the Immigration and Naturalization Service mailed a show cause notice to Billeke-Tolosa, alleging that his failure to pursue a higher education violated the terms of his visa. At a hearing before the IJ in March 1997, Billeke-Tolosa conceded his deportability, but asked for an adjustment of his status, such that he could lawfully remain in the United States with his wife, a native-born American citizen whom he married in 1995.

A hearing on Billeke-Tolosa's request for adjustment of status commenced in July 2000, and focused primarily on his criminal history. In addition to a few traffic offenses (one of which stemmed from charges of driving while impaired by alcohol), Billeke-Tolosa had twice been accused of sexual misconduct involving young girls. The first criminal complaint alleged that, while at a Christmas party, he "pulled down the garment of [a five year old girl], exposing her genital area, and then unlawfully and intentionally touched [her] genital area with his hand." The second charged that he exposed himself to the four-year old granddaughter of his landlady.

Billeke-Tolosa denied both charges. The first allegation, he maintained, was motivated by a husband who was jealous that his wife had been socializing with Billeke-Tolosa at the Christmas party. The second allegation, he contended, was hatched by his landlady, who was on the losing end of a dispute about the rent, and who had access to his criminal record — and therefore knew that he was vulnerable to charges of child-sex abuse — because her daughter was dating a police officer. Purportedly advised by his attorney in each case that a "he-said/she-said" confrontation with a young child was a risky proposition, Billeke-Tolosa admitted to lesser charges in each instance. In the first, he pled guilty to misdemeanor assault, for which he was sentenced to time served and fined $1,000. In the second, he pled guilty to disorderly conduct, and received a suspended sentence based on the court's determination that "the Defendant is not likely again to engage in a criminal course of conduct."

Concerned that "where there's smoke, there's fire," the IJ appointed Linda Shoun, a licensed clinical social worker, to evaluate Billeke-Tolosa. Shoun, who was trained in the diagnosis of pedophilia, opined to the IJ that Billeke-Tolosa was not a pedophile and presented no danger to children or society at large. However, the IJ decided against granting the adjustment of status. Although acknowledging that "the Court cannot go behind [Billeke-Tolosa]'s guilty plea[s]" — in which he did not admit to any sexual crime — the IJ focused on the "two convictions stemming from improper touching or improper exchanges of some type with young girls." As to the fact that Billeke-Tolosa had not been convicted of any charges involving sex abuse, the IJ noted "the difficulties in proving [child-sex offenses] to the State. A child would have to testify about what had happened several years before."

Similarly, the IJ rejected the possibility that Billeke-Tolosa's landlady had, with the help of a police officer, concocted the allegations for mischievous ends, wondering "would it not have been easier for [the child's] [grand]mother to say that [Billeke-Tolosa] exposed himself to her? Then, instead of dragging her child into this, she herself would simply have gone to Court and testified." Indeed, counseled the IJ, "[i]f one is engaged in an act to frame a neighbor, and if the person engaged in the framing is a police officer, the scheme should expose the actors to as little risk as possible."

The IJ ordered Billeke-Tolosa removed, and the BIA affirmed without opinion.

II. ANALYSIS

Billeke-Tolosa argues that in denying his request for adjustment of status, the IJ impermissibly considered unproven allegations that did not result in convictions, in violation of BIA precedent. Because the BIA affirmed without explanation, "we review the IJ's decision to determine whether the BIA [erred]." Denko v. INS, 351 F.3d 717, 723 (6th Cir.2003).

A. Appellate Jurisdiction

The Government urges us to stop short of the merits, maintaining that we lack jurisdiction to review the BIA's discretionary denial of a request for status adjustment. The parties agree that the "transitional rules" of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA") govern our review. One such rule decrees that "there shall be no appeal of any discretionary decision [to grant or deny adjustment of status]." IIRIRA § 309(c)(4)(E). From the Government's vantage point, because Billeke-Tolosa seeks review of the denial of such discretionary relief, there is simply nothing for us to review.

But Billeke-Tolosa does not challenge the IJ's exercise of discretion per se; rather, he argues that the IJ made a legal error in the course of exercising his discretion. A prohibition against the review of a discretionary decision need not extend to non-discretionary decisions upon which the discretionary decision is predicated. See, e.g., Skutnik v. I.N.S., 128 F.3d 512, 514 (7th Cir.1997) (Easterbrook, J.) ("[D]oes the prohibition of judicial review apply when the [BIA]'s decision is said to violate the Constitution because (for example) it is based on religion or speech?"). Whether we may consider Billeke-Tolosa's challenge — which asserts that, in the course of exercising its discretion, the BIA violated one of its nondiscretionary duties — "depend[s] on whether it is best to emphasize the word `decision' (all decisions under § 244 could be based on an exercise of discretion) or the word `discretionary' (only a subset of actions under § 244 reflect an exercise of discretion)." Id.

We have chosen the latter course — holding that we may review the non-discretionary decisions that underlie determinations that are ultimately discretionary. See Valenzuela-Alcantar v. INS, 309 F.3d 946, 949 (6th Cir.2002) (prohibition on review applies when the specific decision is "discretionary, demanding an exercise of judgment"). Our approach is echoed by every other circuit, save for the Seventh, which has considered the question. See Mickeviciute v. INS, 327 F.3d 1159, 1164 n. 4 (10th Cir.2003); Okpa v. INS, 266 F.3d 313, 317 (4th Cir.2001); Najjar v. Ashcroft, 257 F.3d 1262, 1297 (11th Cir.2001); Bernal-Vallejo v. INS, 195 F.3d 56, 62 (1st Cir.1999); Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir.1997); but see Pilch v. Ashcroft, 353 F.3d 585, 587 (7th Cir.2003).

In short, we lack jurisdiction over this appeal — which seeks to redress the IJ and BIA's failure to follow binding BIA rules — only if the IJ was free to ignore the BIA's binding rules. This appears unlikely, given that "[i]t is an elemental principal of administrative law that agencies are bound to follow their own regulations." Wilson v. Comm'r of Social Security, 378 F.3d 541, 545 (6th Cir.2004). Here, of course, Billeke-Tolosa is claiming that the BIA ignored its precedential case law, rather than an agency regulation. But the Government offers no reason why the BIA should be bound by its regulations yet free to ignore its own precedents. See also Hernandez v. Ashcroft, 345 F.3d 824, 846 (9th Cir.2003) ("A nonprecedential decision by the BIA in defiance of its own precedential case law simply cannot be classified as discretionary."). Nor would the BIA itself endorse such a view, as its own regulations provide that "[e]xcept as Board decisions may be modified or overruled by the Board or the Attorney General, decisions of the Board, and decisions of the Attorney General, shall be binding on all officers and employees of the Department of Homeland Security or immigration judges in the administration of the immigration laws of the United States." 8 C.F.R. § 1003.1(g).

The consistent application of an agency's precedents, like the consistent application of its regulations, serves a critical purpose: the provision of fair notice...