Petrov v. Gonzales, 05-4696.

• Citation: 464 F.3d 800
• Decision Date: 06 October 2006
• Docket Number: No. 05-4696.,05-4696.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)
• Parties: Aleksey Gennadiyovich PETROV, Petitioner, v. Alberto R. GONZALES, Attorney General of the United States, Respondent.

464 F.3d 800

Aleksey Gennadiyovich PETROV, Petitioner, v. Alberto R. GONZALES, Attorney General of the United States, Respondent.

No. 05-4696.

United States Court of Appeals, Seventh Circuit.

Argued September 20, 2006.

Decided October 6, 2006.

Maria T. Baldini-Potermin (argued), Pollock & Associates, Chicago, IL, for Petitioner.

Karen Lundgren, Department of Homeland Security, Office of the Chief Counsel, Chicago, IL, Joshua E. Braunstein (argued), Jennifer A. Levings, Margot L. Nadel Department of Justice, Washington, DC, for Respondent.

Before POSNER, EASTERBROOK, and EVANS, Circuit Judges.

EASTERBROOK, Circuit Judge.

In 1998 the United States Embassy in Moscow gave Aleksey Gennadiyovich Petrov permission to enter the United States on parole, a reward for assistance that he had rendered in a criminal investigation. This status was renewed annually until Petrov was convicted of conspiracy to bribe federal officials as part of an immigration fraud. He admitted helping at least four other persons obtain bogus "green cards," accepting more than $10,000 for his efforts. Petrov was sentenced to 16 months' imprisonment, and his right to remain in the United States was not renewed. Nonetheless, he asked immigration officials to withhold removal; he also maintained that he would be subject to torture if returned to Russia. An immigration judge concluded that Petrov's conviction makes him ineligible for withholding of removal and that his return to Russia would be compatible with the Convention Against Torture. The Board of Immigration Appeals dismissed his appeal.

Petrov's criminal conviction forecloses most of the arguments he presents in this court.

Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of title 28, United States Code, or any other habeas corpus provision, and sections 1361 and 1651 of such title, 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 a criminal offense covered in section 1182(a)(2) or 1227(a)(2)(A)(iii), (B), (C), or (D) of this title, or any offense covered by section 1227(a)(2)(A)(ii) of this title for which both predicate offenses are, without regard to their date of commission, otherwise covered by section 1227(a)(2)(A)(i) of this title.

8 U.S.C. § 1252(a)(2)(C). Section 1227(a)(2)(A)(iii) in turn provides that an alien who commits an "aggravated felony" while in the United States is removable. The definition of that phrase, in § 1101(a)(43), includes a long list. At least two entries on that list cover Petrov's crime: subsection (M) refers to any crime of fraud or deceit in which the loss exceeds $10,000, and subsection (P) refers to any crime that entails the creation of bogus immigration credentials when the sentence exceeds a year in prison.

Petrov does not deny that his conviction is for an "aggravated felony." He took in at least $10,000, which is a loss to the aliens who paid him and received spurious documents in exchange. The crime thus qualifies under subsection (M). His sentence for procuring these bogus immigration documents exceeded a year, so the crime also qualifies under subsection (P). Petrov's lawyer simply ignores the issue, choosing instead to contend that his crime is not a "particularly serious crime" for the purpose of 8 U.S.C. § 1231(b)(3)(B)(ii). When a criminal's sentence is less than five years, the agency may decide that the crime is not "particularly serious" and, if so, the alien is eligible for withholding of removal. That was Petrov's principal argument to the Board: his sentence was less than five years, and he wanted the Board to declare the offense "not particularly serious" and remand for a hearing so that the immigration judge could apply the criteria for withholding of removal. Yet given § 1252(a)(2)(C), the undisputed classification of Petrov's crime as an "aggravated felony" means that we are not authorized to inquire whether it is also a "particularly serious crime"—for the latter characterization affects the agency's decision, not ours.

An alien who commits a crime that is not an "aggravated felony," and may or may not be a "particularly serious crime," still encounters a jurisdictional hurdle, for § 1252(a)(2)(B) forecloses judicial review of certain discretionary decisions. We concluded in Tunis v. Gonzales, 447 F.3d 547 (7th Cir.2006), that classification of a particular crime as "particularly serious" often is discretionary. ("Often" is an important qualifier, for the agency does not have discretion to contradict its own rules of decision. A contention that the immigration judge or Board failed to use the right rule of law when making the classification therefore is open to judicial review under § 1252(a)(2)(D), though a claim that the agency abused its discretion in weighing the multiple desiderata made relevant by the Board's definition of a "particularly serious crime" is not reviewable.) But when the crime is an "aggravated felony," § 1252(a)(2)(C) blocks judicial review of the removal order whether or not the agency has made a discretionary decision. Subsection (C) covers the removal order as a whole.

As Petrov sees things, the judiciary always may review the agency's application of the Convention Against Torture. After concluding in Tunis that the Board had not contradicted its own definition of the phrase "particularly serious crime" (and that its discretionary weighing of multiple factors was not reviewable), we then addressed, on the merits, Tunis's request for relief under the Convention Against Torture. Petrov wants us to follow suit. Yet the panel in Tunis considered only the effect of § 1252(a)(2)(B), holding that it does not apply because relief under the Convention is non-discretionary. We did not ask whether § 1252(a)(2)(C) independently forecloses review if the conviction is of a kind covered by that subsection. Because Tunis did not mention that subject, it does not contain a holding on the issue. See Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 91, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998); United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 38, 73 S.Ct. 67, 97 L.Ed. 54 (1952).

An earlier decision that addressed the effect of § 1252(a)(2)(C) directly holds that a criminal alien's contentions under the Convention are not reviewable. See Hamid v. Gonzales, 417 F.3d 642 (7th Cir.2005). That holding, which Tunis did not question (and Petrov ignores, even though the agency relies on it), is controlling today. Recall the language of subsection (C) (emphasis added): "no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed" an aggravated felony. Unlike subsection (B), which forbids review of particular issues in a case otherwise within the court's authority, subsection (C) provides that the "order of removal" itself is unreviewable. There is no exception for arguments under the Convention. This does not mean that the Convention may be ignored; it means only that the administrative resolution of disputes about the risk a criminal alien faces in his native land is conclusive.

Subsection (C) does have one exception: it refers to subsection (D), which as amended by the Real ID Act of 2005 permits "review of constitutional claims or questions of law". No rule of law prevents the removal of aliens who have committed immigration fraud. See INS v. Yueh-Shaio Yang, 519 U.S. 26, 117 S.Ct. 350, 136 L.Ed.2d 288 (1996); Alsagladi v. Gonzales, 450 F.3d 700 (7th Cir.2006). Nor did the Board make any legal error in applying the Convention Against Torture. Factual mistakes, if any, in understanding how Russia treats persons in his position differ from "questions of law"; Petrov does not argue otherwise. He maintains, however, that the agency violated the due process clause of the fifth amendment by assigning his hearing to...