Hafeez v. Gonzales , 224 F. App'x 849 ( 2007 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
May 22, 2007
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
M UH AM M ED A SIF HAFEEZ,
Petitioner,
v. No. 06-9531
(No. A95-554-823)
ALBERTO R. GONZALES, United (Petition for Review)
States A ttorney General,
Respondent.
OR D ER AND JUDGM ENT *
Before H E N RY, B AL DOC K , and M U RPH Y, Circuit Judges.
M uhammed Asif Hafeez, a native of Pakistan who has lived in this country
for fifteen years, seeks review of a removal order and the subsequent denial of a
motion to reopen the removal proceeding. He did not file a separate petition for
review from the latter decision, however, so we lack jurisdiction to consider it.
Youkhana v. Gonzales, 460 F.3d 927, 933-34 (7th Cir. 2006); see Bauge v. INS,
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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. 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not binding precedent, except under the doctrines of law of the case, res judicata,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 w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
7 F.3d 1540, 1541 (10th Cir. 1993) (holding Board of Immigration Appeal’s
(BIA’s) denial of motion for reconsideration “is not before this court because no
new petition for review was filed,” although petition for review had been filed
following underlying deportation order). W e affirm the removal order for the
reasons explained below.
Factual Background and Procedural H istory
The basic historical facts are not in dispute. Petitioner entered the United
States on a nonimmigrant student visa in 1992. He was quickly out of compliance
with the visa, and has since remained in the country. He married a U.S. citizen in
2000, but the marriage ended in divorce in 2001. In 2003, the Department of
Homeland Security issued petitioner a notice to appear, charging removability
under 8 U.S.C. § 1227(a)(1)(C)(i), for failure to maintain or comply with the
conditions of his visa.
Petitioner conceded the charge under § 1227(a)(1)(C)(i), but sought relief
from removal. Citing abuse allegedly suffered during his marriage, which was the
basis for a Self-Petition for Abused Spouse (Form I-360), he applied for
cancellation of removal and adjustment of status under 8 U.S.C. § 1229b(b)(2)
and § 1255. The government responded by lodging an additional charge that he
had made a false claim of citizenship while seeking employment. This second
charge supplied an alternative basis for removal under 8 U.S.C. § 1227(a)(3)(D),
but its real significance lay in its consequences for petitioner’s applications for
-2-
relief from removal. The government asserts, without dispute, that having made a
false claim of citizenship would render petitioner inadmissible and thus ineligible
for adjustment of status under § 1255, and would negate good moral character and
thus preclude cancellation of removal under § 1229b(b)(2).
The case came on for hearing before an immigration judge (IJ). Petitioner
conceded removability for the visa violation under § 1227(a)(1)(C)(i), so, as the
IJ made clear, “the issue . . . was to consider whether [petitioner] is eligible for
any of the various forms of relief [from removal] for w hich he has applied.”
Admin. R. at 87. The government showed that in 2002, petitioner completed an
I-9 employment form and checked the box signifying that he was a “citizen or
national” of the United States. Petitioner testified that he had thought at the time
that he was a U.S. national and had not intended to represent that he was a U.S.
citizen. The IJ did not believe this explanation, noted that checking the “citizen
or national” box was the only way an alien could fill out the form without having
to supply “identifying numbers that could be checked,” and concluded that
petitioner “did what so many have done which is check the box indicating citizen
or national and then provide a social security card or number together with a
driver’s licence as evidence that he was a citizen of the United States.” Id. at 90.
Accordingly, the IJ found that petitioner had made a false claim of citizenship,
precluding the requested relief from removal.
-3-
Burden of Proof, Removability versus R elief from Removal,
and Interplay betw een BIA O rder and IJ Decision
M uch of the parties’ briefing concerns the burden of proof. Petitioner
insists that the government has the burden of proving, by clear and convincing
evidence, that an alien is removable for making a false claim of citizenship. That
is correct. See 8 U.S.C. § 1229a(c)(3)(A ). The government insists that a
removable alien bears the burden of proving, by a preponderance, that he has not
rendered himself ineligible for relief from removal by making such a claim. That
is also correct. See id. § 1229a(c)(4)(A)(i). The critical point is where in the
analysis the false claim of citizenship became material: insofar as it was the basis
for removal, the burden lay with the government; insofar as it was the basis for
denying relief from removal justified on other grounds, the burden lay with the
petitioner. As it happens, there is some inconsistency between the IJ’s decision
and the BIA ’s affirmance of that decision on precisely this point.
As described above, the IJ considered the false claim of citizenship solely
in connection with petitioner’s applications for relief from removal (removability
itself being conceded on other grounds). Although the BIA expressly “adopt[ed]
and affirm[ed] the thorough decision of the Immigration Judge,” Admin. R. at 35,
it summarized the IJ’s ruling on removability as “finding that [the government]
has shown by clear and convincing evidence that [petitioner] is subject to removal
under section 237(a)(3)(D ) of the Act [i.e., for making a false claim of citizenship
-4-
in violation of § 1227(a)(3)(D)],” id. The BIA thus purported to affirm a finding
on removability that the IJ did not make under a burden of proof that the IJ did
not apply. As for relief from removal, the BIA correctly noted that petitioner had
the burden of proving eligibility and “concur[red] with the Immigration Judge, for
the reasons he states, that [petitioner] has not shown he warrants the requested
relief” due to his false claim of citizenship on the I-9 form. Id. at 36. 1
W e have in several recent removal cases addressed the interplay between
BIA orders and IJ decisions they affirm. Sarr v. Gonzales, 474 F.3d 783, 789-91
(10th Cir. 2007) (summarizing Uanreroro v. Gonzales, 443 F.3d 1197 (10th Cir.
2006), and Cruz-Funez v. Gonzales, 406 F.3d 1187 (10th Cir. 2005)). Basically,
the BIA has three options: affirmance by a three-member panel of the BIA in a
full explanatory opinion, 8 C.F.R. § 1003.1(e)(6); summary affirmance by a single
BIA member w ithout any opinion, id. § 1003.1(e)(4); and affirmance by a single
member in a brief explanatory order, id. § 1003.1(e)(5). See Sarr, 474 F.3d at
789. W hen, as here, the third “middle ground” approach is used, the BIA’s order
“constitutes the final order of removal under 8 U.S.C. § 1252(a), and thus the
Court will not affirm on grounds raised in the IJ decision unless they are relied
1
The IJ and BIA also agreed that petitioner had not shown the extreme
hardship required for relief under § 1229b(b)(2). See Admin. R. at 36, 91. This
finding is not subject to judicial review. Sabido Valdivia v. Gonzales, 423 F.3d
1144, 1148 (10th Cir. 2005). But as hardship is not specified as a requirement for
adjustment of status in § 1255(a), the unreviewable hardship finding does not
fully obviate our consideration of the false-claim-of-citizenship issue here.
-5-
upon by the BIA in its affirmance.” Sarr, 474 F.3d at 790 (quotations omitted).
B ut in such cases “w hen seeking to understand the grounds provided by the BIA,
we are not precluded from consulting the IJ’s more complete explanation of those
same grounds” and “may consult the IJ’s opinion to the extent the BIA relied
upon or incorporated it.” Id. (noting, for example, that clarification may be
obtained from IJ’s decision when BIA’s order “incorporates by reference the IJ’s
rationale” or “repeats a condensed version of the IJ’s reasons while also relying
on the IJ’s more complete discussion”) (quotation omitted).
The BIA’s concomitant adoption/misstatement of the IJ’s decision on
removability complicates the matter in a way our case law has not addressed. W e
need not delve into this complication, however, because any error or irregularity
involved is legally immaterial. “Harmless-error analysis applies in immigration
cases.” Ngarurih v. Ashcroft, 371 F.3d 182, 190 n.8 (4th Cir. 2004); see, e.g.,
Nazaraghaie v. INS, 102 F.3d 460, 465 (10th Cir. 1996); Conteh v. Gonzales,
461 F.3d 45, 59 (1st Cir. 2006), petition for cert. filed (U.S. Jan. 8, 2007)
(N o. 06-9829). Petitioner conceded his removability on a patently evident basis
separate and distinct from the false claim of citizenship. Hence, the latter ground
for removal interjected by the BIA and now subject to challenge is legally
redundant and, thus, its resolution can have no material effect on the outcome of
the removability determination. That is the hallmark of harmless error. See, e.g.,
Nazaraghaie, 102 F.3d at 465; Conteh, 461 F.3d at 59.
-6-
Denial of Relief from Removal
The legal irrelevance of the false claim of citizenship with respect to the
determination of removability does not, of course, eliminate the issue from the
case. It remains a basis for the denial of relief from removal, on which the
decisions of the BIA and IJ were consistent.
The focus on relief from removal does, however, have a direct effect on the
burden of proof in a w ay that undermines much of petitioner’s case on appeal. A s
noted above, when relief from removal is at issue, it is the alien’s burden to show
eligibility, not the government’s burden to show ineligibility. See also Schroeck
v. Gonzales, 429 F.3d 947, 952 (10th Cir. 2005) (explaining that when, as here,
“petitioner conceded removability, the burden shifted to him to show that he
was . . . eligible for relief from removal”). In challenging the finding that he
made a false claim of citizenship, petitioner assumes that the government bore the
burden of proof on the issue. To the extent that this assumed premise itself
constitutes his objection to the finding–i.e., to the extent petitioner argues that the
IJ and BIA legally erred by misallocating the burden of proof–his objection is
without merit for reasons we have already stated.
The focus on relief from removal has jurisdictional consequences as w ell.
Such relief (through either § 1229b and § 1255) involves a discretionary matter
excluded from judicial review by § 1252(a)(2)(B)(i) unless the petitioner raises a
legal or constitutional objection preserved for review by § 1252(a)(2)(D). Thus,
-7-
to the extent petitioner generally challenges the evidentiary basis for the factual
finding that he made a false claim of citizenship, we lack jurisdiction to consider
his objection. See Diallo v. Gonzales, 447 F.3d 1274, 1281 (10th Cir. 2006)
(“challenges directed solely at the agency’s . . . factual determinations remain
outside the scope of judicial review” notw ithstanding § 1252(a)(2)(D)).
Petitioner may, however, obtain review of objections that either (1) involve
undisputed facts and “turn[] on interpretation of the applicable statutory section”;
or (2) question “whether the BIA applied the correct legal standard in making its
determination.” Brue v. Gonzales, 464 F.3d 1227, 1231-32 (10th Cir. 2006). His
objection that a false claim of citizenship can never be based solely on checking
the box for “citizen or national” on an I-9 form, because the statute requires a
misrepresentation of citizenship and the ambiguous avowal on the form can never
in itself satisfy that requirement, may well implicate one or both of the exceptions
identified in Brue. But that objection mischaracterizes the determination under
review here. Other evidence relating to context and intent was clearly relied on to
find that petitioner had misrepresented his citizenship. See Admin. R. at 89-90.
Petitioner’s challenge is, in actuality, a general objection to the evidentiary basis
for an adverse factual finding, which is excluded from judicial review under
§ 1252(a)(2)(B)(i).
Petitioner also summarily asserts that the analysis underlying this factual
finding violated his due process rights. This perfunctory attempt to clothe his
-8-
challenge in constitutional garb is insufficient to transform this unreview able
factual matter into a colorable constitutional question for purposes of review
under § 1252(a)(2)(D). See, e.g., Bazua-Cota v. Gonzales, 466 F.3d 747, 748-49
(9th Cir. 2006); De Araujo v. Gonzales, 457 F.3d 146, 154 (1st Cir. 2006);
Bugayong v. INS, 442 F.3d 67, 72 (2d Cir. 2006).
Finally, petitioner’s objection to the assessment of his credibility in
connection with the false claim of citizenship likewise fails. Credibility findings
do not fall within the exception permitting judicial review under § 1252(a)(2)(D).
Perales-Cumpean v. Gonzales, 429 F.3d 977, 982 n.4 (10th Cir. 2005); M ehilli v.
Gonzales, 433 F.3d 86, 93 (1st Cir. 2005).
In sum, petitioner conceded an obvious basis for his removability and the
proper burden of proof was applied in denying him relief from removal. He has
raised no objections to that determination that are both cognizable on review and
meritorious.
The petition for review is DENIED.
Entered for the Court
M ichael R. M urphy
Circuit Judge
-9-