Mele v. Lynch ( 2015 )

United States Court of Appeals
For the First Circuit
No. 13-1917
MARWAN MELE, a/k/a MARWAN AL MELE,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General of the United States,*
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Howard, Chief Judge,
Thompson and Kayatta, Circuit Judges.
Raja H. Wakim on brief for petitioner.
Stuart F. Delery, Assistant Attorney General, Linda S.
Wernery, Assistant Director, and Christina Parascandola, Trial
Attorney, Office of Immigration Litigation, Civil Division, United
States Department of Justice, on brief for respondent.
August 19, 2015
* Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
Loretta E. Lynch has been substituted for former Attorney General
Eric H. Holder, Jr. as respondent.
HOWARD, Chief Judge. Petitioner Marwan Mele seeks
review of a Board of Immigration Appeals decision dismissing his
application for adjustment of status and ordering him removed.
Because we lack jurisdiction over that discretionary decision, we
dismiss the petition for review.
I.
Mele was born in Jordan in 1962. In May of 1992, he was
admitted to the United States on a non-immigrant visa, which
authorized him to stay in the country for sixty days. Mele did
not comply with that limitation and he has remained in the United
States since 1992. Immigration authorities initiated removal
proceedings in September 1993. In April 1994, Mele applied for
asylum, claiming that his Kurdish ethnicity and support for the
United States during the 1991 Gulf War would subject him to
persecution in Jordan. When Mele failed to appear at a hearing to
consider the merits of his asylum claim, an Immigration Judge
ordered him deported in absentia.
Mele married a United States citizen in August 2002.
His wife subsequently filed a Form I-130 petition on Mele's behalf
for an immigrant visa, available to the spouse of a United States
citizen. See 8 U.S.C. § 1151(a)(2)(A)(i). For reasons not
explained in the record, the U.S. Citizenship and Immigration
Services did not grant the I-130 petition until November 2009.
While the petition was pending, Mele filed a motion to reopen his
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immigration proceedings, which the Immigration Judge granted.
Mele informed the judge that he would be seeking an adjustment of
status based on his marriage and, over the next four years, the
court granted several continuances while the I-130 petition
remained pending. In November 2009, after the I-130 petition was
granted, the proceedings were continued yet again to allow Mele
sufficient time to prepare an application for adjustment of status.
On October 21, 2010, and during that continuance, Mele was arrested
in New Bedford, Massachusetts, on six counts related to the illegal
sale of prescription drugs. After several more requests, the judge
eventually agreed to continue the proceedings in light of Mele's
pending criminal case.
A hearing finally took place on Mele's application for
adjustment of status on September 2, 2011. Mele testified about
his work history and his marriage, and his wife described their
family life, how Mele supported the family financially, and how he
helped her deal with certain medical issues. The police report
detailing Mele's October 2010 arrest was also introduced into the
record and the government explored the details of Mele's arrest on
cross-examination. Mele denied that he had committed a crime.
At the conclusion of the hearing, the Immigration Judge
rendered an oral decision. The judge found Mele statutorily
eligible for an adjustment of status, but noted that "the granting
of an application for adjustment of status is discretionary." The
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judge listed various positive factors that weighed in Mele's favor,
but found those considerations outweighed by the facts contained
in the police report about his arrest. The judge did acknowledge
that he had "no information as to whether or not [Mele] will
ultimately be convicted," but nevertheless "decline[d] to exercise
discretion favorably" and denied Mele's application.
Mele appealed to the Board of Immigration Appeals
challenging, as relevant here, the denial of his application for
adjustment of status. The Board dismissed the appeal, agreeing
with the Immigration Judge that the circumstances underlying
Mele's pending criminal charges outweighed the evidence favorable
to him. This timely appeal followed.
II.
Before considering the merits of Mele's application for
adjustment of status, we must confirm that we have jurisdiction.
See Lopez v. Holder, 740 F.3d 207, 210 (1st Cir. 2014). We conclude
that we do not.
Mele sought an adjustment of status pursuant to 8 U.S.C.
§ 1255(a), which allows the Attorney General to adjust an alien's
status to that of a lawful permanent resident. That decision is
committed to the Attorney General "in his discretion." 8 U.S.C.
§ 1255(a). And Congress has heavily circumscribed federal courts'
jurisdiction over such discretionary decisions. As relevant here,
section 1252 of the Immigration and Nationality Act provides that
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"no court shall have jurisdiction to review . . . any judgment
regarding the granting of relief under section 1182(h), 1182(i),
1229b, 1229c, or 1255 . . . ." 8 U.S.C. § 1252(a)(2)(B)(i).
On the basis of this plain language, we have previously
held that we lack jurisdiction to review the purely discretionary
decisions made under the other statutory sections identified in
§ 1252(a)(2)(B)(i). See, e.g., Hasan v. Holder, 673 F.3d 26, 32-
33 (1st Cir. 2012) (lack of jurisdiction to review a petitioner's
application for cancelation of removal under 8 U.S.C. § 1229b).
Although we have not previously specified section 1255, we view
the discretionary decision whether to grant an application for
adjustment of status under that section no differently. See Jaquez
v. Holder, 758 F.3d 434, 435 (1st Cir. 2014); accord, e.g., Hadwani
v. Gonzales, 445 F.3d 798, 800 (5th Cir. 2006); Boykov v. Ashcroft,
383 F.3d 526, 531 (7th Cir. 2004).
Mele essentially disagrees with the weight that the
agency attached to certain evidence, arguing that the agency should
have afforded greater weight to Mele's and his wife's testimony
and less weight to the police report and the circumstances
surrounding his arrest. But where Congress has enacted a
jurisdictional wall, an alien cannot scale it simply by
"relitigat[ing] whether the factors relevant to [the]
discretionary relief were appropriately weighed by the IJ and the
BIA." Urizar-Carrascoza v. Holder, 727 F.3d 27, 32 (1st Cir.
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2013). Those purely discretionary decisions "fall beyond the
review of the appellate courts." Ortega v. Holder, 736 F.3d 637,
640 (1st Cir. 2013).
We of course retain jurisdiction to decide colorable
"constitutional claims or questions of law" embedded within a
petition for review of an alien's application for an adjustment of
status. 8 U.S.C. § 1252(a)(2)(D); see Ramirez-Matias v. Holder,
778 F.3d 322, 326 (1st Cir. 2015). Mele's only argument that even
hints of a constitutional or legal challenge, however, is his claim
that the police report contained hearsay and that its use was
fundamentally "unfair."
We have previously held that an immigration court may
generally consider a police report containing hearsay when making
a discretionary immigration decision, even if an arrest did not
result in a charge or conviction, because the report casts
probative light on an alien's character. See Henry v. I.N.S., 74
F.3d 1, 6 (1st Cir. 1996); see also Arias-Minaya v. Holder, 779
F.3d 49, 54 (1st Cir. 2015). Yet, even if we were willing to
charitably read Mele's argument as an attempt to raise a colorable
constitutional claim or question of law, his own brief refutes
that characterization. His only specific arguments for why the
police report's use was unfair simply fall back on his complaints
that the report was "one-sided" and that the Immigration Judge
inappropriately "chose to ignore the Respondent's testimony and
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accept the allegations mentioned in the police report as true."
These arguments are merely poorly-disguised attempts to urge us to
review the very discretionary decision that § 1252 places beyond
our purview. The Immigration Judge here considered the testimony
that Mele offered and acknowledged that some "favorable
discretionary factors" existed, but nevertheless decided to deny
relief on the basis of the circumstances surrounding the serious
criminal charges pending against him. We lack jurisdiction to
review that discretionary decision.1
III.
For the foregoing reasons, we dismiss Mele's petition
for lack of jurisdiction.
1
At certain points in his brief, Mele seems to imply that
the Immigration Judge found him ineligible for an adjustment of
status because of his pending criminal charges. Not so. The
Immigration Judge plainly found Mele statutorily eligible for an
adjustment, but nevertheless denied an adjustment in his
discretion. Similarly, Mele's claims that his application "would
have been granted" had the IJ continued his proceedings to await
the result of his criminal proceedings misconstrues the IJ's and
the BIA's use of the police report. Although Mele presented the
BIA with no information regarding the status of his criminal
proceedings (which had been pending for over two years by that
time), a police report may generally be considered in immigration
proceedings even if an arrest does not result in a conviction.
See, e.g., Arias-Minaya, 779 F.3d at 54.
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