Ekasinta v. Gonzales, 04-9515.

• Decision Date: 19 July 2005
• Docket Number: No. 04-9515.,04-9515.
• Citation: 415 F.3d 1188
• Parties: Paula Sharon EKASINTA, Petitioner, v. Alberto R. GONZALES, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1188

415 F.3d 1188

Paula Sharon EKASINTA, Petitioner, v. Alberto R. GONZALES, Attorney General of the United States, Respondent.

No. 04-9515.

United States Court of Appeals, Tenth Circuit.

July 19, 2005.

Daniel M. Kowalski, Austin, Texas (T. Douglas Stump, Oklahoma City, Oklahoma, with him on the briefs), for Petitioner.

Andrew C. MacLachlan, Attorney, Civil Division, United States Department of Justice (David V. Bernal, Assistant Director, Office of Immigration Litigation, with him on the brief), Washington, D.C., for Respondent.

Before EBEL, BALDOCK, and HARTZ, Circuit Judges.

HARTZ, Circuit Judge.

Petitioner Paula Sharon Ekasinta seeks judicial review of a final order of removal. The immigration judge (IJ) denied each of her requests for various forms of relief. The Board of Immigration Appeals (BIA) affirmed without opinion, leaving the IJ's opinion as the final agency ruling. Because each of Petitioner's requests was denied on at least one ground that was discretionary, we lack jurisdiction to review the order of removal. See Immigration and Nationality Act (INA) § 242(a)(2)(B), 8 U.S.C. § 1252(a)(2)(B). Consequently, we dismiss the petition.

I. BACKGROUND

On June 10, 1998, Petitioner, a native and citizen of Indonesia, entered the United States at Los Angeles, California. She was initially authorized to stay in this country as a nonimmigrant visitor until November 9, 1998. Her authorization to stay was extended at least until October 19, 2000, and possibly until a later date; in any event, it is undisputed that she remained in this country after her authorization to stay had expired.

On February 16, 2000, while in the United States, Petitioner gave birth to a child, Esther Cordelia. Glenn George Bourdon, Jr., a United States citizen, was the child's father. Bourdon and Petitioner were married on May 28, 2000. Petitioner testified that a friend of hers congratulated her at the wedding reception on becoming a "United States national" on account of her marriage to a United States citizen.

On April 20, 2000, before the wedding, Bourdon had been arrested for physically abusing Esther. On May 4 an Oklahoma state court issued an emergency order transferring custody of Esther to the Oklahoma Department of Human Services. The next day the state petitioned the court to terminate Petitioner's parental rights because of the physical abuse.

A jury trial was held in January 2001. The jury returned a special verdict finding that Petitioner had not herself harmed Esther but had "inflicted chronic abuse, chronic neglect, or torture" on Esther by failing to protect her "from physical abuse that is heinous or shocking." R. at 271. The jury concluded that it was in the best interests of Esther to terminate Petitioner's parental rights, and the court entered judgment on the verdict. Bourdon was eventually convicted of physically abusing Esther and sentenced to prison.

Meanwhile, on August 29, 2000, in connection with new employment at a Payless Shoe Source store, Petitioner completed an I-9 employee-eligibility-verification form, checking a box labeled: "I attest, under penalty of perjury, that I am ... [a] citizen or national of the United States." R. at 487. That was when her immigration troubles came to a head. On October 23 the INS charged Petitioner with remaining in the United States after her authorization to stay had expired, in violation of INA § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B). And on October 26 the INS charged Petitioner with failing to maintain the nonimmigrant status with which she had been admitted, in violation of INA § 237(a)(1)(C)(I), 8 U.S.C. § 1227(a)(1)(C)(1), and falsely representing herself to be a United States citizen on the I-9 form, in violation of INA § 237(a)(3)(D), 8 U.S.C. § 1227(a)(3)(D).

At a December 11, 2000, hearing before the IJ, Petitioner conceded that she was removable for remaining after her authorization had expired and for failing to maintain nonimmigrant status, but she contested the charge that she had falsely represented herself as a citizen. She sought cancellation of removal and adjustment of status to lawful permanent resident under three statutory provisions: INA § 240A(b)(1), 8 U.S.C. § 1229b(b)(1); INA § 240A(b)(2), 8 U.S.C. § 1229b(b)(2); and INA § 245(a), 8 U.S.C. § 1255(a).

Section 1229b(b)(1) provides that "[t]he Attorney General may cancel removal of, and adjust to the status of an alien lawfully admitted for permanent residence, an alien" who has been present in this country for 10 years, has behaved properly during this period, and has established that removal would cause great hardship to a child, spouse, or parent who is a citizen or permanent resident. In particular, the alien must not have been convicted of falsely representing herself to be a citizen, in violation of § 1227(a)(3)(D), which can explain Petitioner's decision to contest removability under § 1227(a)(3)(D) even though she was conceding removability on other grounds. Section 1229b(b)(2) provides that the Attorney General may grant the same relief to an alien who meets similar requirements, more lax in some respects, and who is the parent of the child of a United States citizen who was abused by the citizen—parent. Section 1229b(b)(2) relief also requires that an alien not have been convicted of falsely representing herself to be a citizen, in violation of § 1227(a)(3)(D).

Petitioner claimed eligibility under the third provision, § 1255(a), on the ground that she had been granted her petition under INA § 204(a)(1)(A)(iii), 8 U.S.C. § 1154(a)(1)(A)(iii), to be classified as an alien married to a United States citizen whose child was battered by the citizen—spouse during the marriage. Section 1255(a) states that the Attorney General may adjust the status of an alien who has had such a petition approved if the alien applies for the adjustment, the alien is eligible for permanent residence, and an immigrant visa is available when the application is filed.

We note that Petitioner also sought voluntary removal if she was denied cancellation of removal. See INA § 240B(b), 8 U.S.C. § 1229c(b) ("[t]he Attorney General may permit an alien voluntarily to depart the United States ... if ... the immigration judge enters an order granting voluntary departure in lieu of removal.") But we lack jurisdiction to review an immigration judge's refusal to grant voluntary departure. See 8 U.S.C. § 1229c(f); Van Dinh v. Reno, 197 F.3d 427, 434 (10th Cir.1999). Consequently, we restrict our attention to Petitioner's other claims.

The IJ held several further hearings and issued an oral decision on August 19, 2002. He first decided that the I-9 form sufficed to support the charge that Petitioner falsely represented herself to be a citizen. He said, "To the general public, there is no distinction between being a citizen and being a national," and found Petitioner's testimony that she had believed in such a distinction "patently unbelievable[,] ... unconvincing and false." R. at 117-18. Accordingly, he held that Petitioner was removable under § 1227(a)(3)(D) for falsely representing herself to be a United States citizen.

The IJ indicated that this conclusion made Petitioner ineligible for the statutory relief that she had requested. In any event, the IJ added that even if Petitioner were eligible for these forms of relief, he would deny her applications for them "as a matter of discretion." R. at 123. Each of the provisions on which Petitioner relies only permits the Attorney General to grant relief; none requires that he do so. See 8 U.S.C. §§ 1229b(b)(1) ("The Attorney General may cancel removal...."), 1229b(b)(2) ("The Attorney General may cancel removal...."), 1255(a) ("The status of an alien ... may be adjusted by the Attorney General....").

On August 23, 2002, Petitioner appealed the IJ's decision to the BIA. On January 15, 2004, the BIA affirmed without opinion. The IJ's opinion thus became the final agency determination. See Yuk v. Ashcroft, 355 F.3d 1222, 1230 (10th Cir.2004) ("the summary affirmance regulations specifically provide that the IJ's decision is the final agency action").

Petitioner timely petitioned for review in this court.

II. STATUTORY LIMIT ON JURISDICTION

We have jurisdiction over petitions for review of final orders of removal, see 8 U.S.C. § 1252(b)(2), but that jurisdiction is limited. In particular, § 1252(a)(2)(B)(i) deprives us of jurisdiction to review "any judgment regarding the granting of relief under" several sections of the INA, including the ones under which Petitioner seeks relief— §§ 1229b and 1255.

The Government assumes that this limitation applies only to judgments resting on discretionary grounds, and Petitioner unsurprisingly does not contest this interpretation. Although the matter is not without doubt, we need not resolve it in this appeal because even adopting the Government's assumption, we lack jurisdiction. See Morales v. Ashcroft, 348 F.3d 1259, 1262 (10th Cir.2003) (noting that "this provision seems to foreclose judicial review completely," but holding that in any event, the decision on appeal rested on discretionary grounds). The IJ held that even were Petitioner eligible for any of the relief she sought, he would deny relief (on the Attorney General's behalf) as a discretionary matter. Because the final order of review rests on discretionary grounds, it appears that § 1252(a)(2)(B)(i) denies us jurisdiction to review it.

We recognize that one of the grounds relied upon by the IJ was not discretionary—the denial based on Petitioner's having falsely claimed citizenship. But if there are two alternative grounds for a decision and we lack jurisdiction to review one, it would be beyond our Article III judicial power to review the other. Absent authority to review the discretionary ground, any opinion of ours reviewing the nondiscretionary ground could not affect the final order's validity and so would be advisory only. See Pub. Serv. Co....