Saloum v. U.S. Citizenship & Immigration Services

• Decision Date: 06 February 2006
• Docket Number: Docket No. 04-2872-AG.
• Citation: 437 F.3d 238
• Parties: Ahmad SALOUM, Petitioner, v. UNITED STATES CITIZENSHIP & IMMIGRATION SERVICES, by its District Director of New York, and Alberto R. Gonzales, Attorney General of the United States,<SMALL><SUP>*</SUP></SMALL> Respondents.
• Court: U.S. Court of Appeals — Second Circuit

437 F.3d 238

Ahmad SALOUM, Petitioner, v. UNITED STATES CITIZENSHIP & IMMIGRATION SERVICES, by its District Director of New York, and Alberto R. Gonzales, Attorney General of the United States,^* Respondents.

Docket No. 04-2872-AG.

United States Court of Appeals, Second Circuit.

Argued: January 31, 2006.

Decided: February 6, 2006.

Nicholas J. Mundy, Kuba, Mundy & Associates, New York, NY, for Petitioner.

Michael L. Shiparski, Assistant United States Attorney (Margaret M. Chiara, United States Attorney for the Western District of Michigan, on the brief), United States Attorney's Office for the Western District of Michigan, Grand Rapids, MI, for Respondents.

Before: CABRANES and B.D. PARKER, Circuit Judges, and PRESKA, District Judge.^**

PER CURIAM.

We consider here whether this Court has jurisdiction to review an order of the Board of Immigration Appeals ("BIA") affirming a decision of an immigration judge ("IJ") denying a petitioner's request for a waiver of inadmissibility under section 212(d)(11) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1182(d)(11). We hold that such denials are discretionary judgments committed by law to the BIA (acting on behalf of the Attorney General) and that we are precluded from reviewing such discretionary judgments by 8 U.S.C. § 1252(a)(2)(B)(ii). We further hold that, in the circumstances presented here, section 106(a)(1)(A)(iii) of the REAL ID Act of 2005, Pub.L. 109-13, 119 Stat 231, 310 (codified at 8 U.S.C. § 1252(a)(2)(D)), does not override the jurisdiction-denying provision of 8 U.S.C. § 1252(a)(2)(B)(ii) because petitioner challenges a purely discretionary determination and does not raise any colorable "constitutional claims or questions of law" within the meaning of 8 U.S.C. § 1252(a)(2)(D). Accordingly, we dismiss the petition for review for lack of jurisdiction.

BACKGROUND

Ahmad Saloum, a native and citizen of Syria, petitions for review of the April 21, 2004 order of the BIA affirming the November 25, 2002 decision of an IJ denying petitioner's application for a waiver of inadmissibility under INA section 212(d)(11).

Saloum was admitted into the United States on September 19, 1993 as a lawful permanent resident on a conditional basis through his marriage to a United States citizen. On October 12, 1998, following a nine-day trip to Syria, Saloum was apprehended at a port of entry in Niagra Falls, New York attempting to smuggle his infant daughter, Lana, into the United States. When inspected by United States immigration officers at the border, Saloum pretended that Lana—his daughter by virtue of his relationship with Wasila Zarkaly, a Syrian national to whom Saloum was not married—was in fact a boy named José Gonzalez, the son of Saloum's friend, Johnnie Gonzalez. As part of this ruse, Saloum presented a passport in the name of José Gonzalez, as well as a fraudulent letter signed by the boy's father purportedly authorizing his son's travel with Saloum. In return for the use of these documents, Saloum had paid Johnnie Gonzalez with a gold ring.

After Saloum was refused admission into the country, he left his daughter with a Lebanese family in Windsor, Canada and subsequently entered the United States. By service of a Notice to Appear dated March 29, 2000, Saloum was charged with being "subject to removal" on the grounds that he was an inadmissible alien under 8 U.S.C. § 1182(a)(6)(E)(i) at the time he entered the United States because he had "knowingly ... assisted, abetted, or aided... [an]other alien to enter or to try to enter the United States in violation of law." At a preliminary hearing before the IJ, Saloum admitted, through counsel, the truth of the factual allegations in the Notice to Appear, conceded his removability, and, as relief from removal, requested a discretionary waiver of inadmissibility under INA section 212(d)(11). That statute provides in relevant part that

[t]he Attorney General may, in his discretion for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest, waive application of [8 U.S.C. § 1182(a)(6)(E)(i)]... if the alien has encouraged, induced, assisted, abetted, or aided only an individual who at the time of such action was the alien's spouse, parent, son, or daughter (and no other individual) to enter the United States in violation of law.

8 U.S.C. § 1182(d)(11) (emphases added).

In a written decision issued November 25, 2002, the IJ denied Saloum's application for a section 212(d)(11) waiver, concluding that "[u]pon consideration of the record as a whole, and in balancing the equities and adverse matters presented, the Court finds that the favorable exercise of discretion is not warranted." First, the IJ noted "the existence of serious adverse factors involving a continuing pattern of deception" by Saloum, including his initial entry into the United States "without inspection after having been denied multiple requests for nonimmigrant visas," as well as the apparently non-"bonafide nature of [Saloum's] marriage" to a United States citizen, as shown by "the lack of evidence regarding his marital union, the cessation of contact with his wife [in early 1996] following the perfection of his status [on August 11, 1995], and most importantly, his admitted ongoing simultaneous relationship with a Syrian national [Wasila Zarkaly] who held no status in the United States and with whom he has [two] children." Second, the IJ emphasized that Saloum had "demonstrated his complete and callous disregard for the [i]mmigration laws of this country," having "set in motion a series of events which culminated in the unlawful entry of the mother of his children,"¹ and having also "knowingly and deliberately planned his daughter's unlawful entry into the United States."² In addition, the IJ noted that Saloum had unlawfully "purchase[d] and use[d] ... fraudulent immigration stamps," offering an "unbelievable and unsupported explanation" as to why those stamps were later found to be "absen[t] from his passport."³ Finally, the IJ catalogued Saloum's lack of any meaningful ties to the United States, noting that Saloum had "no immediate relatives in the United States except for his estranged wife[,] ... no business ties or property[,] ... [and] no evidence of significant community involvement," and had failed to report fully the income he had earned while working in the United States.

Based on this analysis, the IJ concluded that Saloum's "equities as proffered and described [are] insufficient to overcome the negative factors of record and ... therefore, ... [Saloum] does not merit the favorable exercise of discretion." On appeal, the BIA summarily affirmed the IJ's decision. Saloum now seeks review before this Court of the denial by the IJ and BIA of his application for a section 212(d)(11) waiver of inadmissibility, contending that "[t]he decision of the BIA was an abuse of discretion and denied [Saloum] due process of law" because the IJ and BIA failed to "adjudicate [Saloum's] case in accordance with the statutory language and legislative intent of INA Section 212(d)(11)." Pet'r's Br. at 11.

DISCUSSION

Where, as here, the BIA has affirmed an IJ's decision without an opinion, we review the IJ's decision directly as the final agency determination. See, e.g., Xiao Ji Chen v. U.S. Dep't of Justice, 434 F.3d 144, 146 (2d Cir.2006). The threshold issue in this case—and one of first impression in this Circuit—is whether we have jurisdiction to review the IJ's discretionary denial of a waiver of inadmissibility under INA section 212(d)(11). That determination in turn requires an analysis of two interrelated statutory provisions: (1) the jurisdiction-denying provision located at 8 U.S.C. § 1252(a)(2)(B)(ii), and (2) the jurisdiction-restoring provision recently added at 8 U.S.C. § 1252(a)(2)(D) pursuant to section 106(a)(1)(A)(iii) of the REAL ID Act of 2005, Pub.L. 109-13, 119 Stat. 231, 310 ("Section 106").

The jurisdiction-denying provision of 8 U.S.C. § 1252(a)(2)(B)(ii) provides in relevant part that "[n]otwithstanding any other provision of law ... no court shall have jurisdiction to review ... (ii) any ... decision or action of the Attorney General ... the authority for which is specified under this subchapter [8 U.S.C. §§ 1151-1381] to be in the discretion of the Attorney General." 8 U.S.C. § 1252(a)(2)(B)(ii) (emphasis added). By its express terms, the waiver of inadmissibility sought by Saloum under 8 U.S.C. § 1182(d)(11) entailed a request for discretionary relief, inasmuch as that statutory provision, which is within the "subchapter" that contains the INA, specifies that "[t]he Attorney General may, in his discretion for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest, waive application of [the inadmissibility bar established for alien smugglers by 8 U.S.C. § 1182(a)(6)(E)(i)]" under certain enumerated circumstances. See 8 U.S.C. § 1182(d)(11) (emphasis added). Accordingly, judicial review of an IJ's decision to grant discretionary relief under INA section 212(d)(11) is barred by the plain language of 8 U.S.C. § 1252(a)(2)(B)(ii).

Congress, however, has recently altered the statutory landscape by providing a limited exception to the jurisdictional bar established by 8 U.S.C. § 1252(a)(2)(B)(ii). Section 106 of the REAL ID Act specifies that

[n]othing in [8 U.S.C. § 1252(a)(2)(B)] or (C), or in any other provision of [the INA] (other than this section) which limits or eliminates judicial review, 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.

8 U.S.C. § 1252(a)(2)(D) (emphasis added). In Xiao Ji Chen v. U.S. Dep't of Justice, 434 F.3d 144 (2d Cir.2006), we construed this jurisdictional grant narrowly, concluding that "[b]ecause the REAL ID Act only provides us with jurisdiction to review...