Tomaszczuk v. Whitaker

• Decision Date: 20 November 2018
• Docket Number: No. 17-4229,17-4229
• Citation: 909 F.3d 159
• Parties: Mariusz TOMASZCZUK, Petitioner, v. Matthew G. WHITAKER, Acting Attorney General, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

909 F.3d 159

Mariusz TOMASZCZUK, Petitioner,

v.Matthew G. WHITAKER, Acting Attorney General, Respondent.

No. 17-4229

United States Court of Appeals, Sixth Circuit.

Argued: October 18, 2018

Decided and Filed: November 20, 2018

Rehearing En Banc Denied February 6, 2019

ARGUED: Jeremy Liss, PAUL, WEISS, RIFKIND, WHARTON & GARRISON, LLP, New York, New York, for Petitioner. Aimee J. Carmichael, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Jeremy Liss, Aidan Synnott, Nora Ahmed, PAUL, WEISS, RIFKIND, WHARTON & GARRISON, LLP, New York, New York, George P. Mann, Maris J. Liss, GEORGE P. MANN AND ASSOCIATES, Farmington Hills, Michigan, for Petitioner. Justin R. Markel, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Before: KEITH, CLAY, and NALBANDIAN, Circuit Judges.

OPINION

CLAY, Circuit Judge.

Petitioner Mariusz Tomaszczuk petitions this Court to review the November 3, 2017, Decision of the Board of Immigration Appeals ("BIA"), dismissing Petitioner’s appeal of the May 15, 2017, Order of the Immigration Judge ("IJ") denying his application for cancellation of removal. Petitioner was denied relief pursuant to 8 U.S.C. §§ 1101(f)(1) and 1229b(b)(1). For the reasons set forth below, we DENY the petition for review.

BACKGROUND

Petitioner is a native and citizen of Poland. Petitioner’s wife is a lawful permanent resident of the United States, and she and Petitioner have a son who is a United States citizen. Petitioner last entered the United States, to remain, in April 1999. The Department of Homeland Security commenced removal proceedings against Petitioner on October 14, 2016, by filing with the immigration court a notice to appear, charging Petitioner with being removable pursuant to 8 U.S.C § 1182(a)(6)(A)(i) as an alien present in the United States without being admitted or paroled.

On April 4, 2017, Petitioner filed an application for cancellation of removal. Petitioner’s hearing before an Immigration Judge ("IJ") took place on May 8, 2017, at which Petitioner, his wife, and his son testified. On May 15, 2017, the IJ issued an order denying Petitioner’s application. The IJ’s order found that Petitioner was a "habitual drunkard" under 8 U.S.C. § 1101(f)(1) and was therefore unable to prove that he was a person of "good moral character" during the ten-year period prior to his application, as is required under 8 U.S.C. § 1229b(b)(1) to be eligible for cancellation of removal. The IJ relied on evidence that Petitioner had been convicted five times on drunk driving charges and once as a "Disorderly Person" related to being drunk in public. This latter conviction and two of the drunk driving convictions were within the ten-year period before Petitioner’s application, while three of the drunk driving convictions fell outside this period. The IJ cited Petitioner’s high blood alcohol content levels at the time of his arrests as evidence of Petitioner’s high tolerance, as well as testimony by Petitioner and his family members that he was an alcoholic. The IJ also found that Petitioner was not of good moral character because he had been confined in a penal institution for longer than the statutory limit set forth by 8 U.S.C. § 1101(f)(7).

Petitioner appealed that decision to the Board of Immigration Appeals ("BIA" or "Board"), and on November 3, 2017, the BIA dismissed Petitioner’s appeal. The Board disagreed with the IJ’s finding as to § 1101(f)(7), but affirmed the IJ’s determination that Petitioner was a "habitual drunkard."

Following the Board’s decision, Petitioner petitioned this Court for review pursuant to 8 U.S.C. § 1252.

DISCUSSION

The Attorney General may cancel the scheduled removal of a nonpermanent resident from the United States under various circumstances. 8 U.S.C. § 1229b(b). One such circumstance is where a nonpermanent resident meets the following four requirements: (1) he has been continuously physically present in the United States for at least ten years, (2) he has exhibited good moral character during that time, (3) he has never been convicted of any of a list of enumerated criminal offenses, and (4) he demonstrates that removal would result in "exceptional and extremely unusual hardship" to his family members who are lawfully present in the United States. Id. § 1229b(b)(1). An alien applicant bears the burden of proof in establishing these requirements. 8 U.S.C. § 1229a(c)(4)(A). The term "good moral character" is defined to exclude those who are or were, during the relevant ten-year period:

(1) a habitual drunkard;

* * *

(3) a member of one or more of the classes of persons, whether inadmissible or not, described in paragraphs (2)(D) [relating to those who engage in or facilitate prostitution or other unlawful commercialized vice], (6)(E) [relating to smugglers], and (10)(A) [relating to practicing polygamists] of section 1182(a) of this title; or subparagraphs (A) and (B) of section 1182(a)(2) of this title [relating to crimes of moral turpitude and multiple criminal convictions] and subparagraph (C) thereof [relating to controlled substance traffickers] ... (except as such paragraph relates to a single offense of simple possession of 30 grams or less of marihuana), if the offense described therein, for which such person was convicted or of which he admits the commission, was committed during such period;

(4) one whose income is derived principally from illegal gambling activities;

(5) one who has been convicted of two or more gambling offenses committed during such period;

(6) one who has given false testimony for the purpose of obtaining any benefits under this chapter;

(7) one who during such period has been confined, as a result of conviction, to a penal institution for an aggregate period of one hundred and eighty days or more, regardless of whether the offense, or offenses, for which he has been confined were committed within or without such period;

(8) one who at any time has been convicted of an aggravated felony (as defined in subsection (a)(43) ); or

(9) one who at any time has engaged in conduct described in section 1182(a)(3)(E) of this title (relating to assistance in Nazi persecution, participation in genocide, or commission of acts of torture or extrajudicial killings) or 1182(a)(2)(G) of this title (relating to severe violations of religious freedom).

8 U.S.C. § 1101(f).

Petitioner claims on appeal that § 1101(f)(1), the "habitual drunkard" provision, is void for vagueness and violates equal protection.¹ Petitioner also claims that the BIA and IJ violated his Due Process rights by considering impermissible evidence and harboring bias against him. We will look at each claim in turn.

I. Void for Vagueness Challenge to § 1101(f)(1)

This Court reviews challenges to the constitutionality of a statute de novo . United States v. Coss , 677 F.3d 278, 289 (6th Cir. 2012). Petitioner argues that § 1101(f)(1) should be struck down as void for vagueness under the Due Process Clause. Petitioner cites different dictionary definitions and interpretations in case law that the term "habitual drunkard" has produced and argues that this uncertainty of meaning leaves him without fair notice of what the term encompasses.

However, we do not reach the merits of this challenge because we hold that Petitioner is unable to raise it. An individual "must establish that [he or] she has been deprived of a life, liberty, or property interest sufficient to trigger the protection of the Due Process Clause" before being allowed to raise a Due Process challenge. Ashki v. INS , 233 F.3d 913, 921 (6th Cir. 2000). Petitioner "has no constitutionally-protected liberty interest in obtaining discretionary relief from deportation." Id. Because Petitioner is a deportable alien with an interest only in discretionary relief, he may not bring this void-for-vagueness challenge under the Due Process Clause. Id. at 921.

Petitioner relies on Shuti v. Lynch , 828 F.3d 440 (6th Cir. 2016) and Sessions v. Dimaya , ––– U.S. ––––, 138 S.Ct. 1204, 200 L.Ed.2d 549 (2018) to argue that Ashki does not control in this case. However, those cases are inapposite because they involved aliens who only became removable by virtue of the statute that the aliens challenged. See Shuti , 828 F.3d at 442 ; Dimaya , 138 S.Ct. at 1210–11. By contrast, Petitioner concedes that he is removable regardless of the "habitual drunkard" provision’s constitutionality and only argues that its constitutionality might affect his eligibility for discretionary relief. Thus, Shuti and Dimaya do not affect this Court’s holding in Ashki .

Petitioner also cites post- Ashki cases where this Court purported to recognize some Due Process interest in discretionary relief. See Montanez-Gonzalez v. Holder , 780 F.3d 720 (6th Cir. 2015) ; Abdallahi v. Holder , 690 F.3d 467 (6th Cir. 2012). However, Ashki was the first case in which this Court directly addressed the issue of whether a deportable alien has a liberty interest in receiving discretionary relief, and in that case we unambiguously held that such an alien lacks such a liberty interest. 233 F.3d at 920–21. This Court recently reaffirmed Ashki in United States v. Estrada , 876 F.3d 885 (6th Cir. 2017). In that case, we noted that there exists a circuit split on the question of whether "an alien has [a] constitutional right to be informed of eligibility for, or to be considered for, discretionary relief," and we recognized that this Court answers that question in the negative. Id. at 888–89. Because the cases that Petitioner cites conflict with Ashki and because a panel of this Court cannot overturn a prior panel, Gaddis ex rel. Gaddis v. Redford Tp. , 364 F.3d 763, 770 (6th Cir. 2004), the decisions that Petitioner cites do not supersede Ashki , which is the controlling case.

For this reason, we do not reach the merits of Petitioner’s void for vagueness challenge.

II. Equal Protection Challenge to § 1101(f)(1)

Petitioner’s Equal Protection challenge to § 1101(f)(1) is without merit. We...