Khaytekov v. Barr, Case No. 19-3149
| Decision Date | 16 December 2019 |
| Docket Number | Case No. 19-3149 |
| Parties | TAKHIR ASHIROVICH KHAYTEKOV, Petitioner, v. WILLIAM P. BARR, Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Sixth Circuit |
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
MURPHY, Circuit Judge. In 2001, Takhir Ashirovich Khaytekov came to the United States from Uzbekistan on a temporary visa lasting six months. He never left. Six years later, authorities caught wind of his unauthorized presence and started proceedings to remove him. See 8 U.S.C. § 1227(a)(1)(B). In response, Khaytekov initially applied for asylum. After he married a U.S. citizen, he withdrew his asylum application and substituted an application asking for an adjustment of his status to that of a lawful permanent resident. See id. § 1255(a)
Khaytekov's misrepresentations derailed his adjustment-of-status application, as an immigration judge found that he lied about many things during his immigration proceedings. To stay in this country, for example, Khaytekov falsely claimed in his asylum application that he had been "brutally attacked" by "nationalist and fascist" groups in Uzbekistan. According to the judge, Khaytekov's lies rendered him inadmissible under 8 U.S.C. § 1182(a)(6)(C)(i), which, in turn, made him ineligible for adjustment of status under § 1255(a). Even if Khaytekov were eligible for adjustment of status, the judge continued, he would not merit that discretionary relief because the negative aspects of his case (his lies) outweighed any positive aspects.
Found inadmissible under § 1182(a)(6)(C), Khaytekov applied for a waiver of inadmissibility under § 1182(i)(1). The waiver would allow him to seek adjustment of status despite his lies if he could prove that his removal would cause his wife Angela "extreme hardship." Khaytekov argued she would suffer such hardship because she is disabled and he is her sole caregiver. The judge denied this waiver request on three grounds. Ground One: The judge found that Khaytekov had knowingly filed a frivolous asylum application, which rendered him "permanently ineligible" for benefits like an inadmissibility waiver. Id. § 1158(d)(6). Ground Two: The judge found that Khaytekov did not prove his eligibility for the waiver because he had not shown that his removal would cause Angela extreme hardship. To reach this result, the judge questioned whether Angela was truly disabled because her social-security application for disability benefits had been denied. Ground Three: The judge found that, even if Khaytekov were eligible for a waiver under § 1182(i)(1), his case did not warrant a favorable exercise of discretion. The judge again relied on Khaytekov's lies, describing him as "one of the most remarkably and demonstrably dishonest people with whom this Court has dealt in well over 30 years of experience on the bench."
Khaytekov appealed to the Board of Immigration Appeals. During the appeal he filed several motions, including a motion to remand for the immigration judge to consider new evidence showing that Angela had procured disability benefits; a motion to have a three-member panel decide his appeal; and a motion for cancellation of removal. The Board dismissed the appeal and denied the motions. It upheld the finding that Khaytekov had filed a frivolous asylum application,which barred him from seeking an inadmissibility waiver under § 1182(i)(1). It also held that Khaytekov would not have been entitled to a waiver in any event. When doing so, the Board acknowledged Khaytekov's new evidence about his wife's disability benefits and so did not rely on the immigration judge's lack-of-hardship finding. Rather, the Board concluded that, even accounting for Angela's disability, Khaytekov did not merit a waiver when balancing the negative and positive aspects of his case.
In this court, Khaytekov alleges that the Board erred in the following ways: (1) by denying his motion to remand based on his new evidence; (2) by refusing to impanel a three-member panel; (3) by denying his motion to remand so that he could apply for cancellation of removal; and (4) by upholding the findings that he had filed a frivolous asylum application and was not credible.
1. Motion to Remand for New Evidence. Khaytekov moved the Board to remand so that the immigration judge could reconsider his request for an inadmissibility waiver under § 1182(i)(1) in light of new evidence (Angela's approval for disability benefits). We lack jurisdiction over this argument, but the reason why is quite complex.
Start with the jurisdictional basics. Congress has stripped courts of jurisdiction to consider many discretionary rulings of the Board of Immigration Appeals. E.g., 8 U.S.C. § 1252(a)(2)(B). Two provisions bar courts from reviewing a decision denying the relief that Khaytekov seeks: a waiver of inadmissibility under § 1182(i)(1). Section 1252(a)(2)(B)(i) says that "no court shall have jurisdiction to review" "any judgment regarding the granting of relief under," among other sections, § 1182(i). Section 1182(i)(2) adds: "No court shall have jurisdiction to review a decision or action of the Attorney General regarding a waiver under paragraph (1)." These carveouts to our jurisdiction come with their own carveout: Congress clarified that courts retain jurisdiction to review "constitutional claims or questions of law" that the Board answers when deciding issuescovered by a jurisdictional bar. Id. § 1252(a)(2)(D). Under this framework, we would lack jurisdiction if Khaytekov had sought our review of the Board's discretionary balancing of the positive and negative aspects of his case or of any decision that he failed to establish hardship. Neither decision qualifies as a "question of law" under § 1252(a)(2)(D) and so both are subject to the jurisdictional bar. See, e.g., Ettienne v. Holder, 659 F.3d 513, 517-19 (6th Cir. 2011) (hardship); Addo v. Mukasey, 267 F. App'x 442, 448-49 (6th Cir. 2008) (balancing); see also Cospito v. Att'y Gen. of U.S., 539 F.3d 166, 170-71 (3d Cir. 2008).
Yet this petition presents a procedural twist. Khaytekov does not seek review of the denial of a waiver under § 1182(i)(1); he seeks review of the denial of a motion to remand. Federal courts have long treated those motions (which are filed before the Board's decision) like motions to reopen (which are filed after the Board's decision). Hernandez-Perez v. Whitaker, 911 F.3d 305, 315 n.4 (6th Cir. 2018); Pilica v. Ashcroft, 388 F.3d 941, 945 n.3 (6th Cir. 2004); see 8 C.F.R. § 1003.2(c)(4). And a court has jurisdiction to review the Board's denial of a motion to reopen if the court would have jurisdiction over the underlying issue that an immigrant seeks to raise in that motion. Kucana v. Holder, 558 U.S. 233, 252-53 (2010). But what "if the court would lack jurisdiction over the . . . underlying" issue that an immigrant seeks to press? Id. at 250 n.17. The Supreme Court has reserved that jurisdictional question. Id.
We have answered the question for other Board actions that, like the denial of a waiver under § 1182(i), are subject to § 1252(a)(2)(B)(i). Hernandez-Perez, 911 F.3d at 315-16; Pilica, 388 F.3d at 945-48. For example, the denial of adjustment of status under § 1255(a) normally triggers that jurisdictional bar. And Pilica considered whether we had jurisdiction over the Board's denial of a motion to remand to allow an immigrant to apply for adjustment of status. 388 F.3d at 945-46. We started with the statutory text, recognizing that "[t]he question is whether the denialof the motion to remand was a judgment 'regarding the granting of relief' under" the adjustment-of-status statute. Id. (quoting 8 U.S.C. § 1252(a)(2)(B)(i)). We then held that a motion to remand "that does not involve the consideration of relief on the merits should not be treated as 'regarding' the granting of relief" for purposes of § 1252(a)(2)(B)(i)'s text. Id. at 948. If, by contrast, the Board denied a motion to remand (or reopen) on merits grounds—because, for example, new evidence still did not show the required hardship for discretionary relief—Pilica suggested that we would lack jurisdiction. Id. at 947-48 (discussing Rodriguez v. Ashcroft, 253 F.3d 797, 800 (5th Cir. 2001)). Ultimately, Pilica held that we had jurisdiction because the immigrant in that case sought only an opportunity to apply for adjustment of status and there was no indication that the Board's unexplained denial of the motion rested on the merits of the immigrant's adjustment-of-status claim. Id. at 945, 948.
Hernandez-Perez clarified how Pilica applies when an immigrant seeks to remand (or reopen) a previously denied claim based on new evidence. 911 F.3d at 316. There, the Board denied an application for cancellation of removal under 8 U.S.C. § 1229b because the immigrant had not shown that his removal would cause extreme hardship to his daughter, a decision also triggering § 1252(a)(2)(B)(i)'s jurisdictional bar. Hernandez-Perez, 911 F.3d at 309-10. The immigrant then filed a motion to reopen with new evidence of hardship to his son, but the Board found that this new evidence "did not establish prima facie eligibility for cancellation of removal." Id. at 310. Despite that quasi-merits ruling, Hernandez-Perez held that we had jurisdiction to consider the denial. Id. at 315-16. We adopted the rule that courts "lack jurisdiction to review the denial of a motion to reopen or remand in a cancellation of removal case, unless the motion raised a new hardship ground not decided in the original decision." Id. at 316 (quoting Ortiz-Cervantes v. Holder, 596 F. App'x 429, 432 (6th Cir. 2015)). And the motion in Hernandez-Perez relied on anew hardship ground (harm to the immigrant's son) different from the ground asserted in the original application (harm to the immigrant's daughter). Id.
While we found that we had...
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