Khan v. Gonzales

• Decision Date: 26 July 2007
• Docket Number: Docket No. 05-4905-ag.
• Citation: 495 F.3d 31
• Parties: Ilyas KHAN, Petitioner, v. Alberto GONZALES, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

495 F.3d 31

Ilyas KHAN, Petitioner, v. Alberto GONZALES, Attorney General of the United States, Respondent.

Docket No. 05-4905-ag.

United States Court of Appeals, Second Circuit.

Argued: February 1, 2007.

Decided: July 26, 2007.

Sandra Perez, Kew Gardens, NY, for Petitioner.

John P. Cronan, Assistant United States Attorney (Michael J. Garcia, United States Attorney for the Southern District of New York, Kathy S. Marks, Assistant United States Attorney, on the brief), New York, NY, for Respondent.

Before: POOLER and RAGGI, Circuit Judges, and SAND, District Judge.^*

POOLER, Circuit Judge:

Petitioner Ilyas Khan, a native and citizen of Pakistan, petitions for review of an August 9, 2005, order of the Board of Immigration Appeals ("BIA"), denying his motion for reconsideration. In re Ilyas Khan, No. A. 90 666 853 (B.I.A. Aug. 9, 2005). Previously, on November 9, 2004, the BIA affirmed the February 3, 2004, order of Immigration Judge ("IJ") Adam Opaciuch, denying petitioner's application for a waiver of deportability pursuant to former Section 212(c) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1182(c) (repealed 1996¹). In re Ilyas Khan, No. A. 90 666 853 (B.I.A. Nov. 9, 2004), aff'g No. A. 90 666 853 (Immig. Ct. N.Y. City Feb. 3, 2004).

In his petition for review, Khan argues that the BIA erred in denying his motion for reconsideration because the underlying IJ decision contained several legal errors. Khan also contends that the BIA failed to comply with its own regulations when it affirmed the IJ's decision without issuing an opinion. For the reasons set forth below, we deny Khan's petition to the extent it raises questions of law over which we have jurisdiction, and we dismiss the remaining portions of the petition for lack of jurisdiction.

BACKGROUND

Khan entered the United States in 1984 or 1985 and became a lawful permanent resident in 1990. In October 1995, Khan was convicted in the United States Court for the Southern District of New York of (1) distribution and possession with intent to distribute heroin, and (2) conspiracy to distribute and possession with intent to distribute heroin. Khan was sentenced to time served, approximately fourteen months, and three years of supervised release.

On October 27, 2001, U.S. immigration authorities detained Khan after he was refused admission to Canada due to his criminal convictions. Khan was charged with being deportable pursuant to INA Section 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i), as an alien who had been convicted of a violation of a law related to a controlled substance, and pursuant to INA Section 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), as an alien convicted of an aggravated felony. Through counsel, Khan applied for a discretionary waiver of deportation under former INA Section 212(c).

In an oral decision, the IJ denied Khan's application for Section 212(c) relief and ordered Khan removed to Pakistan. The IJ concluded that Khan had not demonstrated that he warranted a favorable exercise of discretion, because he had not shown "unusual or outstanding equities to counterbalance his criminal history." Khan appealed this decision to the BIA, arguing that the IJ erred in (1) failing to consider certain positive factors that weighed in favor of a grant of discretion, and (2) requiring that Khan show "unusual or outstanding equities" in order to establish that he warranted a favorable exercise of discretion. The BIA summarily affirmed the IJ's decision, and Khan did not petition this court for review. Instead Khan moved for reconsideration of the BIA decision, arguing once again that the IJ (1) failed to consider the many "highly positive factors" that weighed in favor of a positive exercise of discretion and (2) misapplied the law. The BIA denied Khan's motion, noting that Khan "largely reiterate[d] the same arguments that he presented on" direct appeal. The Board was "not persuaded that [it] committed an error of fact or law in [its] prior decision by affirming the Immigration Judge's discretionary denial of relief." Finally, the BIA held that "[t]o the extent that [Khan's motion] raises new arguments, they essentially assert that his case should not have been affirmed without opinion by a single Board Member," and such arguments were "barred by regulation."

DISCUSSION

1. Jurisdiction

The government argues that we lack jurisdiction to review Khan's petition for review because we are precluded from reviewing a challenge brought by "an alien who is removable by reason of having committed" an aggravated felony, 8 U.S.C. § 1252(a)(2)(C), or a challenge to the agency's denial of discretionary relief, see 8 U.S.C. § 1252(a)(2)(B)(ii). See also Martinez-Maldonado v. Gonzales, 437 F.3d 679, 683 (7th Cir.2006) ("[W]e lack jurisdiction over motions to reopen and reconsider in cases where we lack jurisdiction to review the underlying order."); Patel v. U.S. Att'y Gen., 334 F.3d 1259, 1262 (11th Cir. 2003) (When a jurisdiction-stripping provision deprives the court of jurisdiction over the underlying order, "it strips us of jurisdiction to entertain an attack on that order mounted through filing of a motion to reopen."); Sarmadi v. INS, 121 F.3d 1319, 1322 (9th Cir.1997) ("[W]here Congress explicitly withdraws our jurisdiction to review a final order of deportation, our authority to review motions to reconsider or to reopen deportation proceedings is thereby likewise withdrawn.").

However, the jurisdiction-stripping provisions on which the government relies are both subject to the exception set forth in 8 U.S.C. § 1252(a)(2)(D), which restores our jurisdiction to review "constitutional claims or questions of law." See, e.g., Xiao Ji Chen v. U.S. Dep't of Justice, 471 F.3d 315, 324 (2d Cir.2006).² As we explained in Xiao Ji Chen, we have "not determine[d] the precise outer limits of the term `questions of law.'" Id. at 328. We have, however, suggested that a question of law arises "where a discretionary decision is argued to be an abuse of discretion because it was . . . based on a legally erroneous standard." Id. at 329. We have also indicated that a "question of law" might "arise for example in fact-finding which is flawed by an error of law, such as might arise where the IJ states that his decision was based on petitioner's failure to testify to some pertinent fact when the record of the hearing reveals unambiguously that the petitioner did testify to that fact." Id. (citing Tian-Yong Chen v. INS, 359 F.3d 121, 127 (2d Cir.2004)).

To determine whether we have jurisdiction to consider a petition for review, we must "study the arguments asserted." Id. at 329. We do not rely solely on a petitioner's description of his claims, but scrutinize a petitioner's arguments to determine whether they raise reviewable questions. Thus, "when analysis of the arguments raised by the petition for judicial review reveals that they do not in fact raise any reviewable issues, the petitioner cannot overcome this deficiency and secure review by using the rhetoric of a `constitutional claim' or `question of law' to disguise what is essentially a quarrel about fact-finding or the exercise of discretion." Id. at 329-30. On the other hand, even when the petitioner fails to invoke the rhetoric of a "constitutional claim" or "question of law," our analysis of a petitioner's arguments may reveal that they do in fact raise reviewable issues.

Here, Khan contends that the IJ made several errors. First, he argues that the IJ improperly imposed a heightened legal standard by requiring that Khan demonstrate "unusual or outstanding equities" that would overcome the seriousness of his prior convictions. Khan argues that in doing so, the IJ improperly applied a "threshold test" and failed to undertake the necessary "complete review of the favorable factors" in his case. See In re Edwards, 20 I. & N. Dec. 191, 196 & n. 3 (B.I.A.1990). Following Xiao Ji Chen, we hold that where, as here, a petitioner argues that the agency applied an erroneous legal standard in making a discretionary determination, the petitioner raises a question of law, which we have jurisdiction to review.

We note in passing that Khan's legal analysis lacks merit. The record demonstrates that the IJ correctly articulated and applied the legal standard set forth in Matter of Edwards, reviewing and balancing all the relevant factors in Khan's case. See id.; see also Correa v. Thornburgh, 901 F.2d 1166, 1170 (2d Cir.1990); In re Sotelo-Sotelo, 23 I. & N. Dec. 201, 203-04 (B.I.A.2001). However, Khan's failure to make a meritorious substantive claim should not be confused with an attempt to overcome a lack of jurisdiction by invoking the rhetoric of a "question of law." Cf. Xiao Ji Chen, 471 F.3d at 330. Our analysis of whether a petition presents reviewable claims focuses on the nature of the claims raised and not on the merits of those claims. Khan's argument that the IJ applied the wrong legal standard in this case should not be mischaracterized as an impermissible attempt to challenge the IJ's exercise of his discretion simply because Khan misunderstands the applicable law. Thus, despite the fact that Khan's legal argument is without merit, because Khan raises a "question of law," we conclude that we have jurisdiction to review his claim.

Khan also argues that the IJ misconstrued and ignored important facts in the record. Khan claims that the IJ directly contradicted the record when he indicated that Khan had multiple drug convictions, rather than a single conviction for a drug transaction involving two counts, and "completely distorted the actual facts" when he described Khan's nine years of employment with the same company as merely "a fairly steady work history." The existence of Khan's serious criminal record was central to the IJ's determination that Khan did not warrant a favorable exercise of discretion, and therefore, an unambiguous misstatement by the IJ concerning Khan's record...