Pechenkov v. Holder

• Citation: 705 F.3d 444
• Decision Date: 03 December 2012
• Docket Number: No. 08–73287.,08–73287.
• Parties: Mikhail G. PECHENKOV, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

705 F.3d 444

Mikhail G. PECHENKOV, Petitioner,

v.Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 08–73287.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 17, 2012.

Filed Dec. 3, 2012.

Frank P. Sprouls, Law Office of Ricci & Sprouls, San Francisco, CA, for Petitioner.

Lance Lomond Jolley, Trial Attorney, and Cindy S. Ferrier, Senior Litigation Counsel, Office of Immigration Litigation, Washington, D.C., for Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A072–142–992.

Before: MARY M. SCHROEDER, DIARMUID F. O'SCANNLAIN, and SUSAN P. GRABER, Circuit Judges.

Opinion by Judge GRABER; Concurrence by Judge GRABER.

OPINION

GRABER, Circuit Judge:

Petitioner Mikhail G. Pechenkov seeks review of a decision of the Board of Immigration Appeals (“BIA”) adopting and affirming an immigration judge's (“IJ”) denial of his application for withholding of removal. Petitioner argues that the BIA abused its discretion in ruling that he was ineligible for withholding of removal because he had been convicted of a “particularly serious crime” within the meaning of 8 U.S.C. § 1231(b)(3)(B)(ii). Petitioner also raises a constitutional challenge to the legal provisions precluding adjustment of his immigration status. He argues that he is eligible for adjustment of status because his asylee status was revoked improperly, under a regulation that purportedly contradicts relevant statutory authority. We dismiss, for lack of jurisdiction, Petitioner's challenge to the “particularly serious crime” determination, and we deny his petition with regard to the application to adjust status.

Petitioner, a native and citizen of Russia, was admitted to the United States in 1992. He filed an application for asylum, which was granted. After he obtained asylee status, Petitioner was convicted of felony assault with a deadly weapon or force likely to produce great bodily injury, in violation of California Penal Code section 245(a)(1) (1993); his penalty included a suspended sentence of three years, felony probation for three years, 248 days in jail, and restitution.

After his conviction, Petitioner filed an application, pursuant to 8 U.S.C. § 1159(b), to adjust his status to that of a lawful permanent resident. That application was denied because, under 8 U.S.C. § 1182(a)(2)(A)(i)(I), conviction of a crime involving “moral turpitude” renders an alien inadmissible. In denying the application, the immigration authority ¹ also expressly determined that Petitioner was not entitled to a waiver under 8 U.S.C. § 1159(c), which allows waiver of certain bars to admissibility “for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest.”

Petitioner's asylee status was later revoked pursuant to 8 C.F.R. § 208.24(a), because he was no longer eligible for asylum after his conviction. Soon after revoking Petitioner's asylee status, the immigration authority commenced removal proceedings against him. The Notice to Appear alleged that Petitioner had, after being admitted as a crewman, remained in the United States longer than permitted, making him removable under 8 U.S.C. § 1227(a)(1)(B).

Petitioner then applied for withholding of removal, relief that is one of the two subjects of this petition for review.² In 2000, Petitioner filed a new application to adjust his status, including an application for waiver of inadmissibility. That application is the other subject of this petition.

At a hearing in early 1999, Petitioner admitted the factual allegations in his Notice to Appear and conceded his removability. In 2005, the government added an additional basis of removability, arguing that Petitioner's conviction was for an aggravated felony, making him removable under 8 U.S.C. § 1227(a)(2)(A)(iii). Petitioner contested the additional basis of removability, but the IJ sustained the charge, finding expressly that Petitioner's conviction qualified as an aggravated felony.

In addressing Petitioner's withholding of removal application, the IJ noted that 8 U.S.C. § 1231(b)(3), which provides for withholding of removal, does not apply to an alien who, “having been convicted by a final judgment of a particularly serious crime[,] is a danger to the community.” ³ After considering and weighing several factors, the IJ determined that Petitioner's crime qualified as a “particularly serious crime” and that Petitioner was a danger to the community. For that reason, the IJ denied withholding of removal.

Regarding the adjustment of status application, the government argued that Petitioner was ineligible to apply for such relief after his asylee status had been revoked. In response, Petitioner filed a short brief that the IJ construed as conceding ineligibility for adjustment of status. Nevertheless, Petitioner continued to argue that the revocation of his asylee status was constitutionally defective. Regarding that argument, the IJ's final decision notes a lack of “jurisdiction to review the termination of the [Petitioner's] asylum status.”

Petitioner appealed to the BIA, which adopted the IJ's opinion. Petitioner's brief to the BIA did not challenge the aggravated felony finding or that ground of removability.

In adopting the IJ's opinion, the BIA reiterated that Petitioner was ineligible for withholding of removal because he had been convicted of a particularly serious crime. With respect to the application to adjust status, the BIA noted that it lacked jurisdiction to consider Petitioner's constitutional arguments regarding the revocation of his asylee status. Petitioner timely seeks review, challenging (1) the BIA's evaluation of the factors supporting the “particularly serious crime” finding that precluded withholding and (2) the constitutionality of the regulation under which his asylee status was revoked. Petitioner does not dispute that he is removable for having been convicted of an aggravated felony.

At the outset, the government asserts that we lack jurisdiction over this petition, citing the jurisdiction-stripping provisions of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104–208, § 306, 110 Stat. 3009–546, 3009–607. Specifically, 8 U.S.C. § 1252(a)(2)(C) provides:

Notwithstanding any other provision of law (statutory or nonstatutory), ... and except as provided in subparagraph (D), no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed [among other crimes, an aggravated felony ].

(Emphasis added.) But subparagraph (D) of that same statute provides:

Nothing in subparagraph ... (C) ... shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals in accordance with this section.

Subparagraph (D), added by the REAL ID Act of 2005, restored our jurisdiction over “constitutional claims or questions of law,” even in cases involving aggravated felons.⁴See Ramadan v. Gonzales, 479 F.3d 646, 650 (9th Cir.2007) (per curiam) (internal quotation marks omitted). We have described the cumulative effect of those two statutes as follows:

With respect to asylum, withholding of removal, and CAT claims of a petitioner who was convicted of an offense covered by § 1252(a)(2)(C), we have jurisdiction to review the denial of an asylum application and to review the denial of withholding of removal and CAT relief when a petitioner raises questions of law, including mixed questions of law and fact, or constitutional claims. Morales v. Gonzales, 478 F.3d 972, 978–80 (9th Cir.2007) [, abrogated on other grounds by Anaya–Ortiz v. Holder, 594 F.3d 673, 678 (9th Cir.2010) ]. Moreover, as to “factual issues, when an IJ does not rely on an alien's conviction in denying CAT relief and instead denies relief on the merits, none of the jurisdiction-stripping provisions ... apply to divest this court of jurisdiction.” Id. at 980;see also Arteaga v. Mukasey, 511 F.3d 940, 942 n. 1 (9th Cir.2007).

Brezilien v. Holder, 569 F.3d 403, 410 (9th Cir.2009) (ellipsis in original).

That is, § 1252(a)(2)(C)'s jurisdictional bar is subject to two exceptions. The first exception in the quoted text—relating to questions of law or constitutional claims—is an application of § 1252(a)(2)(D). See Morales, 478 F.3d at 978. The second exception applies only when, as stated above, an IJ denies relief on the merits, for failure to demonstrate the requisite factual grounds for relief, rather than in reliance on the conviction. See Lemus–Galvan v. Mukasey, 518 F.3d 1081, 1083 (9th Cir.2008) (“If an IJ determines that an aggravated felony constitutes a ‘particularly serious crime,’ and denies withholding of removal under the CAT on the basis of the conviction, § 1252(a)(2)(C) bars our review of the denial of withholding.” (citing Unuakhaulu v. Gonzales, 416 F.3d 931, 937 (9th Cir.2005))).

As noted, Petitioner does not challenge that he is removable for having committed an aggravated felony, nor did he raise such a challenge before the BIA. Thus, unless an exception applies, we lack jurisdiction to review the denial of withholding. No exception applies in this case. Recently, we decided that a “particularly serious crime” determination is inherently discretionary and is to be reviewed under the abuse-of-discretion standard. Arbid v. Holder, 700 F.3d 379, 382–84 (9th Cir.2012) (per curiam). Thus, under Arbid,§ 1252(a)(2)(D) cannot restore jurisdiction to review a “particularly serious crime” determination where, as here, the only challenge to that determination is that it incorrectly assessed the facts. Petitioner has not raised a constitutional or legal question in relation to the “particularly serious crime” determination; instead, he asks for a re-weighing of the factors involved in that discretionary determination. Petitioner's opening brief supports this characterization of his petition by...