Wallace v. Gonzales, Docket No. 05-2341-AG.

• Decision Date: 08 September 2006
• Docket Number: Docket No. 05-2341-AG.
• Citation: 463 F.3d 135
• Parties: Michael Terrance WALLACE, Petitioner, v. Alberto GONZALES, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

463 F.3d 135

Michael Terrance WALLACE, Petitioner, v. Alberto GONZALES, Attorney General of the United States, Respondent.

Docket No. 05-2341-AG.

United States Court of Appeals, Second Circuit.

Submitted: September 1, 2006.

Decided: September 8, 2006.

Earl Ian Laidlow, New York, NY, for Petitioner.

John F. Salan, Assistant United States Attorney (Margaret M. Chiara, United States Attorney, on the brief), United States Attorney's Office for the Western District of Michigan, Grand Rapids, MI, for Respondent.

Before McLAUGHLIN, CABRANES, and SACK, Circuit Judges.

PER CURIAM.

Petitioner Michael Terrance Wallace seeks review of an April 15, 2005 order of the Board of Immigration Appeals ("BIA" or "Board"), In re Wallace, No. A 78 424 366 (B.I.A. Apr. 15, 2005), that vacated an order of Immigration Judge ("IJ") Joe D. Miller granting Wallace's application for an adjustment of status pursuant to 8 U.S.C. § 1255, In re Wallace, No. A 78 424 366 (Immig. Ct. Napanoch Sept. 8, 2004). He argues that the BIA (1) erred when it considered Wallace's New York State conviction for armed robbery, which resulted in a "Youthful Offender Adjudication," when deciding whether to reverse the IJ's discretionary decision to grant his application and (2) exceeded its authority by engaging in impermissible factfinding in violation of a regulation requiring the BIA to accept the facts found by an IJ unless they are "clearly erroneous." For the reasons stated below, we deny the petition for review in part and dismiss the petition in part.

INTRODUCTION

Wallace is a native and citizen of Trinidad, and he entered the United States as a non-immigrant visitor on August 2, 2000 at the age of sixteen. In December 2000, Wallace and two friends robbed a man on a New York subway car. Wallace's friends brandished weapons, and Wallace struck the victim. The three then took the victim's money and MetroCard.¹ Wallace subsequently pleaded guilty to robbery in the first degree, among other crimes, as a result of the subway incident, and he received a "Youthful Offender Adjudication."² See N.Y.Crim. Proc. Law §§ 720.10-720.35. In addition, Wallace has been arrested for possession of marijuana and for turnstile jumping.

Having been served a Notice to Appear, Wallace conceded removability and was found removable by the IJ. Wallace sought to avoid removal by applying for an adjustment of status pursuant to 8 U.S.C. § 1255. The basis of his application was that his step-father, an American citizen, had filed a petition on his behalf for lawful admission as a permanent resident. See 8 U.S.C. § 1151(b)(2)(A)(i) (providing for admission of "immediate relatives" of United States citizens).

Adjustment of status is a matter of grace, not of right, and the evaluation of such applications is left to the discretion of the Attorney General. See, e.g., Bugayong v. INS, 442 F.3d 67, 71 (2d Cir.2006). The IJ determined that Wallace met the statutory requirements of 8 U.S.C. § 1255 and then, as an exercise of discretion, chose to grant Wallace's application for adjustment of status. When deciding whether to grant the application, the IJ identified the following positive factors that, in his view, outweighed the negative factors in Wallace's criminal record. First, Wallace has "strong family ties" in this country to, among others, his step-father and his mother, who is a lawful permanent resident and a member of the United States Army Reserve. Second, Wallace and his family will suffer hardship if he is removed to Trinidad. Third, the IJ found that Wallace showed "evidence of genuine rehabilitation."

The Department of Homeland Security ("DHS") appealed the IJ's order to the BIA. The BIA reversed the IJ, concluding that because of Wallace's "criminal history, which indicates a propensity to violate the law, he is not desirable as an alien resident in the United States and that, notwithstanding the obvious familial support which he enjoys here, this factor cannot outweigh the negative factor of criminal history." In addition, the Board concluded that the IJ "erred in finding adequate evidence of rehabilitation which would outweigh the negative criminal history," stating that although "the evidence does suggest that [Wallace] has attempted to rehabilitate himself while incarcerated we cannot find that this outweighs the seriousness of his conviction for robbery and other indications of criminal activity." Accordingly, the BIA vacated the order of the IJ and ordered Wallace removed to Trinidad.

This petition for review followed.

DISCUSSION

Wallace raises two claims on appeal. First, he argues that the BIA violated his right to due process under the Fifth Amendment when it considered his Youthful Offender Adjudication as a factor relevant to Wallace's application for adjustment of status. Second, he argues that the BIA exceeded its authority under federal regulations when it rejected the IJ's finding that Wallace had demonstrated rehabilitation. As we explain below, each argument is without merit.

Other than to review "constitutional claims or questions of law," see 8 U.S.C. § 1252(a)(2)(D), "no court shall have jurisdiction to review . . . any judgment regarding the granting of relief under" 8 U.S.C. § 1255, which provides for adjustment of status. See 8 U.S.C. § 1252(a)(2)(B)(i); see also Guyadin v. Gonzales, 449 F.3d 465, 468-69 (2d Cir. 2006); Bugayong, 442 F.3d at 70-73. Accordingly, we cannot review Wallace's claim if he merely challenges how the BIA exercised its discretion; he must present a constitutional claim or question of law.

I. The BIA and IJs May Consider Youthful Offender Adjudications When Evaluating Applications for Adjustment of Status

Wallace's first challenge presents a question of law: Whether an official evaluating an application for an adjustment of status pursuant to 8 U.S.C. § 1255 may properly consider the applicant's adjudication as a "Youthful Offender" under New York State criminal law. See N.Y.Crim. Proc. Law §§ 720.10-720.35. Citing no authority, Wallace argues that "the spirit and the purpose of the New York Youthful Offender law is defeated if the Board is permitted to use a confidential Youthful offender adjudication when adjudicating adjustment of status applications. . . ."

Unlike a case where an IJ implements immigration law provisions declaring that certain convictions bar an alien from receiving relief or allow for the imposition of certain penalties, see, e.g., 8 U.S.C. § 1227(a)(2)(A)(iii) (authorizing deportation of an alien convicted of "an aggravated felony at any time"), an IJ reviewing an application for adjustment of status considers whether to perform an act of administrative grace. Therefore, while it is relevant that the BIA has determined that Youthful Offender Adjudications do not count as "convictions" for purposes of 8 U.S.C. § 1227, see In re Devison-Charles, 22 I. & N. Dec. 1362, 1366-68 (B.I.A.2000) (concluding "that the New York youthful offender adjudication procedures set forth in Article 720 of the New York Criminal Procedure Law" do not create "convictions" justifying deportation),³ the BIA's holding in Devison-Charles is not dispositive here.

Indeed, although our research has not revealed a precedential opinion of the Board directly on point, BIA practice suggests that the Board believes juvenile offenses not counting as "convictions" under the immigration law may nonetheless be considered when determining whether an alien merits discretionary relief. See, e.g., In re Mendez-Moralez, 21 I. & N. Dec. 296, 301 (B.I.A.1996) (stating that factors relevant to grant of discretionary relief include, inter alia, "the existence of a criminal record and, if so, its nature, recency and seriousness, and the presence of other evidence indicative of an alien's bad character or undesirability as a permanent resident of this country") (emphasis added); In re Morales-Castillo, 2005 WL 3802090 (B.I.A. Dec. 8, 2005) (unpublished) ("recognizing that the respondent has not been convicted of a crime," yet finding "the underlying basis for the [juvenile] respondent's authorized confinement to be a significant adverse factor").⁴ Because the purpose of adjustments of status is to provide worthy aliens with special relief, we see no reason to prevent an IJ or the BIA from considering an applicant's anti-social conduct—whether leading to a conviction, a Youthful Offender Adjudication, or no legal judgment whatsoever—as an adverse factor in evaluating an application for discretionary relief.

A Youthful Offender Adjudication would presumably count less heavily against an applicant than would an adult conviction; however, we have no authority to review the BIA's weighing of matters relevant to the grant or denial of an adjustment of status, which is a decision committed to the discretion of the Attorney General. See 8 U.S.C. § 1252(a)(2)(B)(i) ("[N]o court shall have jurisdiction to review . . . any judgment regarding the granting of relief under" 8 U.S.C. § 1255.); id. § 1255(a) (providing that "[t]he status of an alien . . . may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe") (emphases added); see also Guyadin, 449 F.3d at 468 (holding that Courts of Appeals lack jurisdiction to review "[a]n assertion that an IJ or the BIA misread, misunderstood, or misapplied the law in weighing factors relevant to the grant or denial of discretionary relief," a claim that "is essentially an argument that the IJ and BIA abused their discretion"); Higuit v. Gonzales, 433 F.3d 417, 420 (4th Cir.2006) (holding that petitioner failed to "present a question of law" where he challenged a "discretionary adjustment of status determination" in which "the IJ balanced [petitioner's] positive and negative attributes and did not rule in [his] favor").

Accordingly, because we find no error of law, much less a constitutional violation, in the BIA's consideration of the facts underlying...