Sadik v. Holder , 525 F. App'x 723 ( 2013 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 10, 2013
Elisabeth A. Shumaker
Clerk of Court
HICHAM SADIK,
Petitioner,
v. No. 12-9559
(Petition for Review)
ERIC H. HOLDER, JR.,
United States Attorney General,
Respondent.
ORDER AND JUDGMENT*
Before LUCERO, Circuit Judge, PORFILIO, Senior Circuit Judge, and
MATHESON, Circuit Judge.
Hicham Sadik petitions for review of a decision of the Board of Immigration
Appeals (BIA) denying his motion to reconsider its prior decision that dismissed his
appeal from the immigration judge’s (IJ) denial of his application for adjustment of
status. We dismiss the petition for lack of jurisdiction.
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Mr. Sadik, a native of Morocco, was admitted to the United States in 2001 as a
nonimmigrant student to attend Oklahoma City University. He attended school
somewhere between one day and a week. Instead of returning to Morocco, he spent
the next few years working odd jobs and living at various locations. He also married
a U.S. citizen, divorced, and then married another U.S. citizen. He failed to appear
for his required annual special registration until 2006, when he appeared before an
immigration official who initiated removal proceedings.
The notice to appear charged Mr. Sadik as an alien who (1) failed to comply
with the conditions of the non-immigration status under which he was admitted;
(2) remained in the United States for a longer time than permitted; (3) failed to
furnish information as required by the Attorney General; and (4) failed to notify the
Attorney General of changes in his address.
Mr. Sadik failed to appear in immigration court to answer the charges. The IJ
ordered him removed in absentia. Mr. Sadik then moved the BIA to reopen the
proceedings and set aside the removal order. The BIA remanded the case to the IJ to
adjudicate the motion to reopen. The IJ set aside his order and reopened the
proceedings.
Mr. Sadik appeared before the IJ and conceded removability. He sought to
adjust his status to be an abused spouse of a United States citizen under the Violence
Against Women Act of 1994. The IJ found that Mr. Sadik was eligible for
adjustment, see 8 U.S.C. § 1255(a), but denied Mr. Sadik’s application in the
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exercise of discretion and ordered him removed to Morocco. The IJ found that
“[a]lthough [Mr. Sadik] has fulfilled the minimum statutory requirements for
adjustment . . . he has not shown that he merits this discretionary form of relief based
on equities in his favor.” Admin. R. at 98.
Mr. Sadik appealed to the BIA, which found that Mr. Sadik had “failed to meet
his burden of proving that he warrants a favorable exercise of discretion.” Id. at
26-27. Mr. Sadik then filed a motion to reconsider with the BIA. The BIA denied
the motion, noting that both the Board and the IJ “denied adjustment of status as an
exercise of discretion, concluding that [Mr. Sadik] was not credible and that his
equities did not outweigh the negative factors. . . . [Mr. Sadik’s] motion fails to
identify any error of law or fact in our decision or identify any argument advanced
on appeal that was improperly overlooked by the Board.” Id. at 3. This petition for
review followed.
Because Mr. Sadik did not petition for review of the BIA’s initial order, we
have before us only his petition for review of the BIA’s denial of his motion to
reconsider. See Stone v. INS, 514 U.S. 386, 405-06 (1995) (contemplating separate
timely filings of petition for review from underlying order of removal and of petition
for review of denial of motion for reconsideration).
Under § 1255(a), the Attorney General, in his discretion, may adjust the status
of an alien who meets three eligibility requirements:
The status of an alien who was inspected and admitted or paroled into
the United States or the status of any other alien having an approved
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petition for classification of a VAWA self-petitioner may be adjusted by
the Attorney General, in his discretion and under such regulations as he
may prescribe, to that of an alien lawfully admitted for permanent
residence if (1) the alien makes an application for such adjustment,
(2) the alien is eligible to receive an immigrant visa and is admissible to
the United States for permanent residence, and (3) an immigrant visa is
immediately available to him at the time his application is filed.
We agree with the Attorney General that this court lacks jurisdiction to
review the BIA’s decision denying Mr. Sadik’s motion to reconsider. Title 8 U.S.C.
§ 1252(a)(2)(B)(i), provides that “no court shall have jurisdiction to review . . . any
judgment regarding the granting of relief under [8 U.S.C. §] 1255.” This prohibition
on jurisdiction means that we cannot review judgments under the sections noted in
§ 1252(a)(2)(B) that are “discretionary in nature.” Sabido Valdivia v. Gonzales,
423 F.3d 1144, 1149 (10th Cir. 2005). Discretionary decisions involve an agency
judgment call or involve “no algorithm on which [appellate] review can be based.”
Id. (internal quotation marks omitted).
Our resolution might be different if the request for adjustment of status was
denied because Mr. Sadik did not meet one or more of the three § 1255(a)
requirements for eligibility, which do not involve an agency judgment call. See id.
(recognizing that this court has jurisdiction to review a finding under 8 U.S.C.
§ 1229b that the alien had met the requirement of continuous physical presence in the
United States because it “is a quintessentially non-discretionary inquiry”). But here
Mr. Sadik seeks review of a purely discretionary decision.
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Not only do we lack jurisdiction to consider purely discretionary decisions, we
also lack jurisdiction to review motions to reopen those decisions. See Infanzon v.
Ashcroft, 386 F.3d 1359, 1362 (10th Cir. 2004) (noting that “where judicial review of
the underlying order is precluded [the] denial of a subsequent motion to reopen [is]
also precluded.”).
The petition for review is therefore dismissed for lack of jurisdiction.
ENTERED FOR THE COURT,
Scott M. Matheson, Jr.
Circuit Judge
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