Kithongo v. Garland
| Decision Date | 09 May 2022 |
| Docket Number | 21-2662 |
| Citation | 33 F.4th 451 |
| Parties | Lawrence Karisa KITHONGO, Petitioner, v. Merrick B. GARLAND, Attorney General of the United States, Respondent. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Afshan J. Khan, Attorney, Law Office of Afshan J. Khan, Roselle, IL, for Petitioner.
Margaret A. O'Donnell, Robert Dale Tennyson, Jr., Attorneys, Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.
Before Manion, Hamilton, and Brennan, Circuit Judges.
Lawrence Kithongo is a Kenyan citizen who overstayed his authorized period in the United States and now faces removal for committing a "particularly serious crime." An immigration judge denied his applications for adjustment of status, withholding of removal, and relief under the Convention Against Torture ("CAT"). He asks this court to review those decisions. For the reasons discussed below, we dismiss the first two applications for lack of jurisdiction, and we deny the third on exhaustion grounds.
Kithongo was born and raised in Kenya. He alleges he and his family endured several hardships during his childhood there. For example, Kithongo states that his father was regularly harassed and intimidated for political and religious reasons. This harassment was not always limited to his father; Kithongo says he too endured verbal and physical harassment, which resulted in a stab wound on one occasion and a broken arm on another.
Kithongo also claims he watched a police officer murder one of his friends during the political unrest following the 2007 Kenyan national election. Out of concern for his safety, Kithongo moved to his grandmother's house and assumed a new name. His grandmother then arranged for him to work for a company of acrobats so that he would be able to travel outside the country. Four years later, at age 19, Kithongo was admitted into the United States on a P1 nonimmigrant performer visa. He has not left the United States in the last 11 years, and he has overstayed his period of authorization since May 2017. He is now 31 years old and married with children. Although still a Kenyan citizen, Kithongo wishes to remain in the United States.
Over the last seven years, Kithongo has been convicted of misdemeanors for battery, theft, and marijuana possession. Most recently, he was convicted for conspiring with others to rob three victims, two of whom were children. Although Kithongo did not commit the robbery himself, he knowingly accompanied his co-conspirators to the scene of the crime, likely aware that one of them was carrying a firearm. The robbery was violent. One child victim was struck in the head with the firearm, while the other's head and neck were pinned against the seat of a car. Kithongo was convicted in Indiana state court of felony conspiracy to commit robbery and sentenced to one year in prison on September 3, 2019.1
After Kithongo completed his sentence, the Department of Homeland Security served him with a notice to appear, charging him with removability under 8 U.S.C. §§ 1227(a)(1)(B), (a)(2)(A)(iii) for having an aggravated felony conviction. At Kithongo's first removal hearing, the immigration judge determined that his conviction for conspiracy to commit robbery was an aggravated felony. Nevertheless, the judge permitted Kithongo to explore avenues of relief from removal. A month later, Kithongo applied for withholding of removal and relief under the CAT. At a hearing in October 2020, Kithongo "formally admitted all five allegations in the [notice to appear], conceded [his] removability under [ 8 U.S.C. § 1227(a)(1)(B),] but denied removability under [ 8 U.S.C. § 1227(a)(2)(A)(iii) ]." He also denied that his conviction constituted an aggravated felony. That December, Kithongo applied for adjustment of status.
In February 2021, he appeared with counsel for his merits hearing. The immigration judge heard testimony from Kithongo, his wife, and his mother-in-law. The judge ultimately denied each of Kithongo's applications: for adjustment of status, withholding of removal, and relief under the CAT. The judge ordered Kithongo removed to Kenya. Kithongo appealed, and the Board of Immigration Appeals (the "Board") affirmed the immigration judge's decision without an opinion. Kithongo is now in the custody of Immigration and Customs Enforcement. He petitions for review of the Board's affirmance of the immigration judge's decisions.
The "first and fundamental question" our court must answer "is that of jurisdiction." Steel Co. v. Citizens for a Better Env't , 523 U.S. 83, 94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). "The requirement that jurisdiction be established as a threshold matter ‘spring[s] from the nature and limits of the judicial power of the United States’ and is ‘inflexible and without exception.’ " Id. at 94–95, 118 S.Ct. 1003 (alteration in original) (quoting Mansfield, C. & L.M.R. Co. v. Swan , 111 U.S. 379, 382, 4 S.Ct. 510, 28 L.Ed. 462 (1884) ). We begin by considering whether we have jurisdiction to review the Board's discretionary determination under the Immigration and Nationality Act. See Estrada-Martinez v. Lynch , 809 F.3d 886, 891 (7th Cir. 2015). First, we consider Kithongo's applications for adjustment of status and withholding of removal, and then we review his application for relief under the CAT, for which jurisdiction is uncontested.
Under 8 U.S.C. § 1255, a visa-eligible noncitizen may seek long-term permanent residence in the United States by applying for an "adjustment of status." Id. ; see Dijamco v. Wolf , 962 F.3d 999, 1001 (7th Cir. 2020). An adjustment-of-status determination is committed to the discretion of the Attorney General, who in turn has delegated his authority to immigration judges, subject to review by the Board. 8 U.S.C. § 1255(a) ; Hadayat v. Gonzales , 458 F.3d 659, 663 (7th Cir. 2006) ; 8 C.F.R. §§ 1003.1(b)(3) & (d)(1) ; 8 C.F.R. § 1003.10 ; 8 C.F.R. § 1245.2(a)(1). Kithongo applied for an adjustment of status, but his request was denied for two reasons. First, the immigration judge deemed him ineligible for an adjustment because of his criminal history and failure to provide an affidavit from a valid sponsor. Second, the judge concluded he did not merit a favorable exercise of discretion. Kithongo disagrees, claiming that he can now provide a sponsor.
Our jurisdiction is limited by 8 U.S.C. § 1252(a)(2)(B)(i), which states, in part, that "no court shall have jurisdiction to review ... any judgment regarding the granting of relief under section ... 1255 of this title." Id. Under this statutory provision, we "lack jurisdiction to review a variety of agency decisions denying discretionary relief, including an [immigration judge's] decision to deny an application for adjustment of status." Wroblewska v. Holder , 656 F.3d 473, 477 (7th Cir. 2011) (citations omitted); see Pouhova v. Holder , 726 F.3d 1007, 1016 n.7 (7th Cir. 2013). This court's "jurisdiction is not so limited, however, when it comes to ‘constitutional claims or questions of law’ that are related to the denial of an application for adjustment of status." Wroblewska , 656 F.3d at 477 (quoting 8 U.S.C. § 1252(a)(2)(D) ; Jarad v. Gonzales , 461 F.3d 867, 868–69 (7th Cir. 2006) ); Pouhova , 726 F.3d at 1016 n.7.
Here, the immigration judge denied Kithongo's application for adjustment of status "both due to his ineligibility for such relief ... and as a matter of discretion." The judge balanced positive factors such as the potential hardship of removal on Kithongo and his family, against negative factors like the details of Kithongo's criminal history. "Even if" Kithongo "were otherwise eligible" for an adjustment, the judge concluded he would still deny the application as a "matter[ ] of discretion." "Ultimately," the immigration judge concluded that "the negative factors in this case far outweigh[ed] the positive ones."
Because Kithongo's application for adjustment of status was denied in part "as a matter of discretion," we lack jurisdiction to review it unless he can identify a legal or constitutional issue to evaluate. He has failed to do so, therefore the application must be dismissed.
Next, we examine if there is jurisdiction to review Kithongo's application for withholding of removal. A noncitizen is entitled to withholding of removal if his "life or freedom would be threatened in that country because of the alien's race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1231(b)(3)(A) ; see Tsegmed v. Sessions , 859 F.3d 480, 484 (7th Cir. 2017). There are exceptions, though. For example, § 1231(b)(3)(B)(ii) states that this rule does not apply if the Attorney General decides "that the alien, having been convicted by a final judgment of a particularly serious crime is a danger to the community of the United States." Id. For purposes of withholding of removal, an aggravated felony conviction with a term of imprisonment of at least five years is, per se, a "particularly serious crime." Id. § 1231(b)(3)(B).
A sentence of less than five years does not preclude the immigration judge from determining that an applicant has been convicted of a particularly serious crime. Id. Nor does the offense need to be an aggravated felony for it to be particularly serious. Id. In such cases, the judge "may examine ‘the nature of the conviction, the type of sentence imposed, and the circumstances and underlying facts’ " of the crime to determine if the conviction is particularly serious. Estrada-Martinez , 809 F.3d at 889 (quoting In re N-A-M- , 24 I. & N. Dec. 336, 342 (BIA 2007) ). Crimes against persons, rather than property, are more likely to qualify as particularly serious. In re S-V- , 22 I. & N. Dec. 1306, 1308 (BIA 2000).
As this court has previously noted, Board precedent "appears to support more than one method for determining whether a crime is ‘particularly serious.’ " Estrada-Martinez , 809 F.3d at...
To continue reading
Request your trial