Maiwand v. Gonzales

• Decision Date: 11 September 2007
• Docket Number: Docket No. 05-6055-ag.
• Citation: 501 F.3d 101
• Parties: Mohammad Homayun MAIWAND, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

501 F.3d 101

Mohammad Homayun MAIWAND, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.

Docket No. 05-6055-ag.

United States Court of Appeals, Second Circuit.

Argued: March 21, 2007.

Decided: September 11, 2007.

Michael P. DiRaimondo, DiRaimondo & Masi, LLP (Marialaina L. Masi, Mary Elizabeth Delli-Pizzi, Stacy A. Huber, of counsel), Melville, NY, for Petitioner.

Papu Sandhu, Office of Immigration Litigation, Department of Justice (Peter D. Keisler, Assistant Attorney General, of counsel), Washington, DC, for Respondent.

Before: SACK, B.D. PARKER, and HALL, Circuit Judges.

SACK, Circuit Judge:

Mohammad Homayun Maiwand, a native and citizen of Afghanistan, petitions for review of a decision by the Board of Immigration Appeals ("BIA") denying 1) his application for a waiver of inadmissibility under section 212(c) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1182(c); 2) his request for relief pursuant to regulations implementing the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 85 ("CAT"); and 3) his motion to terminate the removal proceedings against him. In re Mohammad Homayan Maiwand, No. A 28 906 603 (B.I.A. Jan. 29, 2004), aff'g No. A 28 906 603 (Immig. Ct. N.Y. City July 22, 2002).

Maiwand contests the BIA's denial of section 212(c) relief, but his arguments raise no constitutional claim or question of law. We are therefore without jurisdiction to review the BIA's decision in that regard. To that extent, we dismiss the petition. We also dismiss the petition insofar as it asks us to review the correctness of the IJ's fact-finding regarding Maiwand's CAT claim. To the extent Maiwand argues that the IJ erred in assessing what evidence could satisfy his burden of proof under the CAT regulations, we find the argument to be without merit.

Maiwand's challenge to the third part of the BIA's decision is based on his argument that because he entered the country as a refugee, the BIA is statutorily prohibited from ordering his removal without first cancelling that status. Although this is a question of law that we have jurisdiction to review, we conclude that the BIA's interpretation of the relevant statutes and regulations are reasonable. To that extent, we deny the petition.

BACKGROUND

According to Maiwand's testimony before Immigration Judge ("IJ") Alan A. Vomacka, Maiwand is a member of the Mohummed Ziy monarchy, which ruled Afghanistan for about two hundred years prior to the 1980s. In 1988, after the Ziy family was overthrown by the Soviet Union, Maiwand escaped with his wife Fazila to the United States. He was accorded refugee status in 1990. In 1992, the INS¹ granted his application for adjustment of status and, retroactive to 1991, made Maiwand a legal permanent resident ("LPR"). Fazila became a United States citizen in 1997. Maiwand and Fazila have three children born in the United States in 1990, 1992, and 1994, respectively. They are United States citizens.

In 1993, Maiwand, in exchange for $5,000, introduced an Afghani friend, who said he wanted to purchase heroin, to another friend who Maiwand knew was selling heroin. Maiwand was charged by the State of New York with, and pled guilty to, second degree criminal sale of a controlled substance. Maiwand's conviction subjected him to deportation because it "relat[ed] to a controlled substance." 8 U.S.C. § 1251(a)(2)(B)(i) (1994) (current version at 8 U.S.C. § 1227). The INS issued an order to show cause in 1994. Maiwand appeared before an IJ, conceded removability, attempted to secure refugee status through his first asylum application, and applied for relief under INA § 212(c). The IJ found Maiwand ineligible for both forms of relief. Maiwand's case then began a convoluted journey through the immigration agency and the federal courts, recounted at length in In re Mohammad Homayan Maiwand, No. A 28 906 603 (B.I.A. June 23, 2000). As relevant to this petition, the BIA remanded Maiwand's case to the IJ in 2000 to allow the IJ to reconsider Maiwand's application for section 212(c) relief and any other relief that might have been available as a result of the amount of time that had passed since the IJ had last considered Maiwand's applications. See id.

On remand, the IJ denied Maiwand's application for a waiver of inadmissibility pursuant to section 212(c), in large part because new testimony by Maiwand before the IJ convinced the IJ that Maiwand's earlier testimony falsely minimized his involvement in the heroin transaction that led to his 1993 conviction. In light of the new information and the IJ's corresponding doubts about Maiwand's credibility, the IJ decided not to exercise the Attorney General's discretion delegated to the IJ to grant Maiwand a section 212(c) waiver.

The IJ also denied Maiwand's application for CAT relief. The judge recognized that the Afghan government might be unable to protect Maiwand from the violent acts of rogue elements in the country. The IJ nonetheless found that Maiwand had failed to show a "probability that [he] would be taken into custody by the government under the present situation in Afghanistan [or] a probability that if he were taken into custody by some other group, it would be with the acquiescence of the government." Oral Decision Tr., dated July 22, 2002, at 6. In sum, the IJ found, Maiwand had "not established a probability of being tortured in Afghanistan." Id.

Maiwand appealed to the BIA, which affirmed the IJ's denial of relief under both section 212(c) and CAT. Maiwand also filed a motion asking the BIA to terminate the proceedings based on the theory that as a refugee, he could not be removed from the country. The BIA denied this motion, reasoning that once Maiwand adjusted his status from that of refugee to that of an LPR, his previous refugee status provided no basis for terminating removal proceedings.

Maiwand petitions for review.

DISCUSSION

I. Standard of Review

"Where, as here, the BIA adopts and affirms the decision of the IJ, and supplements the IJ's decision, we review the decision of the IJ as supplemented by the BIA." Islam v. Gonzales, 469 F.3d 53, 55 (2d Cir.2006).

We apply the principles of Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), to agency interpretations of statutes when Congress has delegated law-making authority to the agency and the interpretation was promulgated pursuant to that authority. Ucelo-Gomez v. Gonzales, 464 F.3d 163, 168 (2d Cir. 2006) (citing United States v. Mead Corp., 533 U.S. 218, 226-27, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001)). Precedential BIA decisions are eligible for Chevron deference insofar as they represent the agency's authoritative interpretations of statutes. See id. at 170.

II. Jurisdiction

Because Maiwand was ordered removed pursuant to 8 U.S.C. § 1227(a)(2)(B),² we have jurisdiction to review only "constitutional claims or questions of law raised [in his] petition for review." 8 U.S.C. § 1252(a)(2)(D); see also § 1252(a)(2)(C) (providing that its jurisdictional limitations apply when an alien "is removable by reason of having committed a criminal offense covered" in, inter alia, section 1227(a)(2)(B)). "[T]he term `constitutional claims' clearly relates to claims brought pursuant to provisions of the Constitution of the United States." Xiao Ji Chen v. Gonzales, 471 F.3d 315, 324 (2d Cir.2006). The phrase "questions of law" encompasses "the same types of issues [over which] courts traditionally exercised [jurisdiction] in habeas review over Executive detentions," id. at 326-27, which the Supreme Court has noted is "broader than habeas review over other types of detentions resulting from judicial determinations," St. Cyr, 533 U.S. at 301, 121 S.Ct. 2271. In determining whether we have jurisdiction, we must "study the arguments asserted . . . [and] determine, regardless of the rhetoric employed in the petition, whether it merely quarrels over the correctness of the factual findings or justification for the discretionary choices." Xiao Ji Chen, 471 F.3d at 329. If so, we do not have jurisdiction to review it. See id. We have observed, generally, that we have jurisdiction to review "the application of law to fact, including what evidence may satisfy a party's burden of proof." Gui Yin Liu v. INS, 475 F.3d 135, 137 (2d Cir.2007) (per curiam) (citations omitted).

A. Section 212(c) Relief

Former INA section 212(c) granted the Attorney General discretion to waive deportation orders issued to LPRs who have lived in the United States for at least seven consecutive years. See INS v. St. Cyr, 533 U.S. 289, 294-95, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001). This provision was repealed by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"). Section 212(c)'s waiver of inadmissibility relief nonetheless remains available to aliens who pled guilty to crimes prior to the month of April 1997, in which IIRIRA became effective, and who, "notwithstanding those convictions, would have been eligible for § 212(c) relief at the time of their plea under the law then in effect." St. Cyr, 533 U.S. at 326, 121 S.Ct. 2271.

Maiwand first disputes the IJ's and BIA's conclusions that his testimony about the heroin transaction in his hearings before the IJ was inconsistent. He asserts that the apparent inconsistency resulted from superficial questioning of him about his role in the offense at his first hearing. Because this attack "essentially disputes the correctness of an IJ's fact-finding," Xiao Ji Chen, 471 F.3d at 329, we are without jurisdiction to review it.

Maiwand next argues that his strong family ties to United States citizens, along with other favorable factors, warrant a waiver of inadmissibility under section 212(c) notwithstanding the negative weight that attaches to his drug conviction. This...