Jean v. Gonzales, 04-2292.

• Decision Date: 27 January 2006
• Docket Number: No. 04-2292.,04-2292.
• Citation: 435 F.3d 475
• Parties: Marie DELORAS JEAN, a/k/a Marie Dolores Jean, a/k/a Marie Dolores Duversaint, a/k/a Marie Dolores Jean-Duversaint, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 475

435 F.3d 475

Marie DELORAS JEAN, a/k/a Marie Dolores Jean, a/k/a Marie Dolores Duversaint, a/k/a Marie Dolores Jean-Duversaint, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.

No. 04-2292.

United States Court of Appeals, Fourth Circuit.

Argued October 26, 2005.

Decided January 27, 2006.

ARGUED: Mary Ann Berlin, Baltimore, Maryland, for Petitioner. Bryan Stuart Beier, United States Department of Justice, Office of Immigration Litigation, Washington, D.C., for Respondent. ON BRIEF: Peter D. Keisler, Assistant Attorney General, Civil Division, M. Jocelyn Lopez Wright, Assistant Director, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent.

Before WILKINSON, WILLIAMS, and TRAXLER, Circuit Judges.

Petition for review dismissed in part and denied in part by published opinion. Judge TRAXLER wrote the opinion, in which Judge WILKINSON and Judge WILLIAMS joined.

TRAXLER, Circuit Judge.

Marie Deloras Jean petitions for review of an order of the Board of Immigration Appeals ("BIA") denying her motion to reconsider the BIA's denial of her applications for cancellation of removal and for a waiver of inadmissibility. We dismiss her petition for lack of jurisdiction to the extent that it challenges the BIA's refusal to reconsider the denial of a waiver of inadmissibility. Finding no abuse of discretion by the BIA as to the remainder of Jean's claims, we deny them.

I.

In April 1997, the Immigration and Naturalization Service ("INS"), now known as the Department of Homeland Security, placed Jean, a native and citizen of Haiti, in removal proceedings as "[a]n alien present in the United States without being admitted or paroled." 8 U.S.C.A. § 1182(a)(6)(A)(i) (West 1999). Although Jean conceded removability, she applied for discretionary relief in the form of cancellation of removal, see 8 U.S.C.A. § 1229b(b)(1) (West Supp.2005), or, alternatively, voluntary departure, see 8 U.S.C.A. § 1229c (West 1999 & Supp. 2005). The immigration judge, however, concluded that Jean was statutorily ineligible for cancellation of removal for failure to establish the requisite "good moral character," based on his factual determination that Jean was not truthful during the proceedings about her criminal history. See 8 U.S.C.A. § 1229b(b)(1)(B).¹

Specifically, the immigration judge noted that Jean "indicated on her application for cancellation of removal and during direct examination that she was not arrested or convicted of any crimes" but then admitted during cross examination "that in fact she had been arrested for petty larceny and ultimately convicted of disorderly conduct." J.A. 16. Jean also admitted that she had been "arrest[ed] during the pendency of these proceedings for multiple charges [of] credit card fraud." Id. The immigration judge concluded Jean's "failure to make full disclosure of her criminal history both in her application and direct testimony" were "material omissions under oath made to avoid discovery of facts adverse to her application" that "preclude[d] a finding of good moral character." J.A. 16-17. See 8 U.S.C.A. § 1101(f)(6) (West 1999 & Supp.2005) (precluding a finding of good moral character for an alien "who has given false testimony for the purpose of obtaining ... benefits under [the INA]"). The immigration judge further suggested that a finding of good moral character was prohibited because Jean admitted committing "crimes of moral turpitude." J.A. 16. See 8 U.S.C.A. § 1101(f)(3); 8 U.S.C.A. § 1182(a)(2)(A). Alternatively, the immigration judge concluded that Jean was ineligible for cancellation of removal because she failed to establish that her removal would result "in exceptional and extremely unusual hardship." 8 U.S.C.A. § 1229b(b)(1)(D). Finally, the immigration judge refused to grant voluntary departure and entered an order of removal in June 1998.

Jean appealed to the BIA, arguing that the record did not support the immigration judge's finding that Jean testified falsely. Jean argued that "[a]t worst, her testimony was equivocal and convey[ed] a tremendous amount of confusion" and could not be construed as intentionally false. J.A. 30. While the appeal was pending, Congress enacted the Haitian Refugee Immigration Fairness Act of 1998 ("HRIFA"), Pub.L. No. 105-277, § 901, 112 Stat. 2681 (1998), which allows certain Haitian nationals to seek lawful permanent resident status without having to surmount the standard barriers faced by other immigrants. Ordinarily, for example, an immigrant seeking to adjust his status must have been "inspected and admitted or paroled into the United States." 8 U.S.C.A. § 1255(a) (West Supp.2005); see 8 C.F.R. § 1245.1(b)(3) (2005). A Haitian national, however, may be eligible for an adjustment of status even though he was never officially inspected and admitted into the United States. See 8 C.F.R. § 1245.15(b). One of the biggest advantages is that an applicant for permanent resident status under HRIFA is relieved of the burden of proving that he "is eligible to receive an immigrant visa and is admissible to the United States for permanent residence." 8 U.S.C.A. § 1255(a); see 8 U.S.C.A. § 1182(a) (West 1999 & Supp.2005) (listing classes of aliens ineligible for immigrant visas or admission to the United States).

Under HRIFA, many inadmissibility grounds that render other aliens ineligible for visas do not apply to qualified Haitian nationals. For example, qualifying applicants under HRIFA are not inadmissible on the grounds that they entered illegally or that they are likely to become a public charge. See 8 U.S.C.A. §§ 1182(a)(4)(A), (6)(A)(i) (West 1999); 8 C.F.R. § 1245.15(e)(1). While certain grounds for inadmissibility still apply to HRIFA applicants, the applicant may seek a waiver of inadmissibility under section 212 of the Immigration and Nationality Act ("INA"), as would any other alien seeking to establish visa eligibility. See 8 C.F.R. § 1245.15(e)(2). For example, an applicant seeking relief under HRIFA is inadmissible, and thus not eligible for an adjustment of status, if he has been convicted of "a crime involving moral turpitude." 8 U.S.C.A. § 1182(a)(2)(A)(i)(I); see 8 C.F.R. § 1245.15(e)(1). The Attorney General has the discretion to grant a waiver of this particular ground of inadmissibility, provided certain statutory requirements are "established to the satisfaction of the Attorney General." 8 U.S.C.A. § 1182(h)(1)(A) (West Supp.2005).

Before the BIA had ruled on the merits of her appeal, Jean moved to have her status adjusted under HRIFA. In November 1999, the BIA remanded the case to the immigration judge for consideration of Jean's application for relief under HRIFA. On December 10, 1998, during the time that her appeal to the BIA was pending, Jean was convicted of petty theft in Prince George's County, Maryland, for which she received probation. Because this offense qualified as "a crime involving moral turpitude," 8 U.S.C.A. § 1182(a)(2)(A)(i)(I), which constitutes grounds for finding Jean inadmissible and therefore ineligible for relief under HRIFA, see 8 C.F.R. §§ 1245.15(b)(3), (e)(1), the parties agreed Jean was required to seek a waiver of inadmissibility in order to be eligible for an adjustment of status.

At the hearing on Jean's request for a waiver of inadmissibility, evidence of Jean's criminal history included an April 1998 arrest for possession of stolen property and forgery; the December 1998 conviction for theft; and December 1999 charges for theft, forgery, and credit card fraud. In light of this evidence, the immigration judge continued the case to afford Jean "an opportunity to demonstrate good moral character and rehabilitation from her criminal past." J.A. 47. Ultimately, after continuing the case for a second time, the immigration judge held a final hearing in June 2002. In the interim, Jean had been charged with three counts of leaving a child unattended.

On August 27, 2002, the immigration judge entered an order denying Jean's application for waiver of inadmissibility. Although the immigration judge found that Jean "introduced sufficient evidence to establish `extreme hardship,' and was therefore eligible for a waiver, the judge concluded that Jean `failed to demonstrate that she merits relief as a matter of discretion.'" J.A. 49. Applying the factors articulated by the BIA in Matter of Marin, 16 I. & N. Dec. 581, 584-85 (BIA 1978), the immigration judge concluded that the factors adverse to the favorable exercise of discretion — primarily Jean's record of criminal activity and failure to rehabilitate herself — outweighed favorable factors including Jean's lengthy presence in the United States from an early age, her traumatic childhood, and the likelihood that her removal would result in hardship for her children.

On April 30, 2004, the BIA issued a decision adopting and affirming both the June 5, 1998, decision of the immigration judge denying cancellation of removal and voluntary departure and the August 27 2002, decision denying a waiver of inadmissibility. The BIA summarized its decision as follows:

We note that several equities are present in this case, including the length of the respondent's residence in the United States, as well as the presence of her three United States citizen children. Nonetheless, we agree that the respondent has failed to demonstrate good moral character required for cancellation of removal and voluntary departure, and that she does not merit a favorable exercise of discretion in adjudicating her application for a waiver of inadmissibility... so as to allow her to adjust status under HRIFA.

J.A. 81.

Jean did not petition for judicial review of this decision. Instead, she filed a motion for the BIA to reconsider its decision of April 30, 2004. With respect to the BIA's denial of cancellation of removal, Jean essentially restated her original argument to the BIA that she did not lie under oath about...