Rivas v. Gonzales , 220 F. App'x 892 ( 2007 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
April 4, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
MARTIN RINCON RIVAS and MARIA
CASTRO DE RINCON,
Petitioners,
v. No. 06-9545
ALBERTO R. GONZALES, Attorney (Agency Nos.
General, A78-891-449, A78-891-450)
(Petition for Review from an Order of
Respondent. The Board of Immigration Appeals)
ORDER AND JUDGMENT *
Before BRISCOE, McWILLIAMS, and TYMKOVICH, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is, therefore,
ordered submitted without oral argument.
Martin Rincon Rivas (Rincon) and Maria Castro De Rincon (Castro) petition for
*
This order and judgment is not binding precedent, except under the doctrines of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.
review of an order removing them from the United States to Mexico. Castro contends
that the immigration judge (IJ) erred in allowing the Attorney General to withdraw a
charge filed against her for false representation. Further, Rincon and Castro jointly
contend that the IJ should have granted their request to continue the removal proceedings
because Rincon had filed a labor certification request that could result in an employment-
based visa. We exercise jurisdiction under 8 U.S.C. § 1252(a) and dismiss the petition for
lack of jurisdiction.
I.
Rincon and Castro, a married couple, are citizens of Mexico who entered the
United States illegally in early 1997. The Attorney General initiated removal proceedings
against them in 2004. In addition to charging both with unauthorized entry, the Attorney
General alleged that Castro had also falsely represented herself to be a United States
citizen. Over Castro’s objection, the IJ subsequently allowed the Attorney General to
withdraw the false representation charge before the IJ had made any findings regarding
the charge.
Before the IJ ruled on removal, Rincon and Castro’s counsel requested a
continuance to await a decision by the United States Department of Labor on Rincon’s
pending application for alien employment certification. The petitioners asserted that the
certification would allow Rincon to request an employment-based visa. The IJ denied
their request because it was unknown how long the certification process would take and
the likelihood of certification was speculative at best.
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The IJ thereafter ordered the removal of Rincon and Castro from the United States
because they had not provided evidence showing their lawful entry. The IJ specifically
noted that he had made “no finding” on the withdrawn false representation charge. Aplt.
App. at 39. The Board of Immigration Appeals (BIA) affirmed, without opinion, the IJ’s
rulings. Rincon and Castro now petition for review of the BIA’s decision.
II.
When the BIA “‘summarily affirms or adopts an immigration judge’s decision, this
court reviews the judge’s analysis as if it were the BIA’s.’” Wiransane v. Ashcroft, 366
F.3d 889, 897 (10th Cir. 2004) (citation omitted). We examine legal determinations de
novo and findings of fact under a substantial evidence standard. Niang v. Gonzales, 422
F.3d 1187, 1196 (10th Cir. 2005). Further, we review jurisdictional issues de novo.
Itaeva v. INS, 314 F.3d 1238, 1240 (10th Cir. 2003). Rincon and Castro argue that the IJ
erred in two regards: when he allowed the Attorney General to withdraw the false
representation charge, and when he denied their request for a continuance.
A.
Castro contends that the withdrawal of the false representation charge prevented
her from refuting it, thereby preserving the allegation as “forevermore unchallengeable in
any court or agency.” Pet’r Br. at 21. Castro argues that she will be unable to return to
the United States so long as this allegation remains unadjudicated.
We are without jurisdiction to consider Castro’s argument. Title 8 U.S.C. §
1252(g) deprives us of jurisdiction to review the Attorney General’s decision to
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commence or adjudicate removal proceedings:
Except as provided in this section and notwithstanding any other provision of
law (statutory or nonstatutory), including section 2241 of title 28, United
States Code, or any other habeas corpus provision, and sections 1361 and 1651
of such title, no court shall have jurisdiction to hear any cause or claim by or
on behalf of any alien arising from the decision or action by the Attorney
General to commence proceedings, adjudicate cases, or execute removal
orders against any alien under this Act.
(emphasis added). The three enumerated acts – commencing proceedings, adjudicating
cases, and executing removal orders – “represent the initiation or prosecution of various
stages in the deportation process.” Reno v. American-Arab Anti-Discrimination Comm.,
525 U.S. 471, 483 (1999), reh’g denied by, 526 U.S. 1081 (1999). “Section 1252(g) was
directed against a particular evil: attempts to impose judicial constraints upon
prosecutorial discretion.” Id. at 485 n.9. The provision confirms that “[a]t each stage the
Executive has discretion to abandon the endeavor” without judicial interference. Id. at
483-84; see also Barahona-Gomez v. Reno, 236 F.3d 1115, 1120 (9th Cir. 2001) (“It is
this very decision to either ‘abandon the endeavor’ or to adjudicate it that Congress
wished to preserve from judicial review.”).
Castro’s claim clearly falls within subsection (g)’s prohibition on judicial review
of the Attorney General’s decision to commence or adjudicate an immigration case. By
challenging the Attorney General’s decision to abandon the false representation charge,
Castro is asking us to review the Attorney General’s prosecutorial decision regarding
what charges will or will not be pursued against her. Subsection (g) prohibits us from
engaging in precisely this type of review because by raising this issue Castro is
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attempting to impose judicial constraints on the Attorney General’s discretion to choose
which charges will be pursued.1 The Attorney General’s decision to “abandon the
endeavor” regarding the false representation charge is beyond our jurisdictional purview.
B.
The petitioners also assert that the IJ erred in denying their request for a
continuance of the proceedings pending the outcome of Rincon’s labor certification
request.2 Again, we must first address whether we have jurisdiction to review the denial
of a request for a continuance. We have previously held that “8 U.S.C. §
1252(a)(2)(B)(ii) bars review of [an] IJ’s discretionary decision denying [a] petitioner’s
motion for a continuance.” Yerkovich v. Ashcroft, 381 F.3d 990, 995 (10th Cir. 2004).
Our prior ruling in Yerkovich is controlling here. Title 8 U.S.C. § 1252(a)(2)(B)(ii) bars
our review of the IJ’s decision to deny a continuance.
After we decided Yerkovich, Congress passed the REAL ID Act of 2005. Section
1252 was amended to provide that 8 U.S.C. § 1252(a)(2)(B) shall not “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.” See 8
1
Castro cites to Colmenar v. INS, 210 F.3d 967 (9th Cir. 2000), to support her
contention that the withdrawal of charges without a hearing violates due process. As the
Attorney General points out, however, that case involved an asylum applicant’s right to
have his claims heard by an immigration judge, not the right of a removable alien to have
a hearing on withdrawn claims. See id. at 968-71.
2
Although the petitioners mention, at various points, other petitions that may
justify adjustment of status, the basis for their request for a continuance was the pending
application for certification. See A.R. at 67.
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U.S.C. § 1252(a)(2)(D). We have interpreted this provision as granting courts jurisdiction
to review constitutional claims and “‘a narrow category of issues regarding statutory
construction.’” Diallo v. Gonzales, 447 F.3d 1274, 1282 (10th Cir. 2006) (quoting Chen
v. United States DOJ, 434 F.3d 144, 153 (2d Cir. 2006)). “However, challenges directed
solely at the agency’s discretionary and factual determinations remain outside the scope
of judicial review.” Id. at 1281 (citation omitted). The petitioners do not raise any
constitutional claim or question regarding statutory interpretation, relying instead on their
argument that it was an abuse of the IJ’s discretion to deny their motion. See Pet’r Br. at
26-28.
III.
We DISMISS the petition for review for lack of jurisdiction.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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