Williams v. Holder ( 2013 )

12-2732-ag
Williams v. Holder
BIA
Straus, IJ
A087 174 243
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT
FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC
DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE
A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 16th day of October, two thousand thirteen.
PRESENT:
PIERRE N. LEVAL,
PETER W. HALL,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
_____________________________________
SUZANA WILLIAMS,
Petitioner,
v. No. 12-2732-ag
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: James E. Swaine, Hamden, CT.
FOR RESPONDENT: Stuart F. Delery, Acting Assistant Attorney General,
Eric W. Marsteller, Senior Litigation Counsel, Jane T.
Schaffner, Trial Attorney, Office of Immigration
Litigation, United States Department of Justice,
Washington, D.C.
_____________________________________
UPON DUE CONSIDERATION of this petition for review of a Board of
Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, and
DECREED that the petition for review be and hereby is DISMISSED.
Petitioner Suzana Williams, a native and citizen of Brazil, seeks review of a June
12, 2012, order of the BIA affirming the November 15, 2010, decision of Immigration
Judge (“IJ”) Michael W. Straus, finding her removable and denying adjustment of status.
In re Suzana Williams, No. A087 174 243 (B.I.A. June 12, 2012), aff’g No. A087 174 243
(Immig. Ct. Hartford Nov. 15, 2010). We assume the parties’ familiarity with the
underlying facts and procedural history in this case.
As the BIA’s decision “does not expressly adopt the IJ’s decision, but closely . . .
tracks [its] reasoning, [we have] consider[ed] both the IJ’s and the BIA’s opinions ‘for the
sake of completeness.’” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir. 2008) (quoting
Wangchuck v. DHS, 448 F.3d 524, 528 (2d Cir. 2006)).
In order for an alien to adjust status to that of a lawful permanent resident, she
must first have been “inspected and admitted or paroled into the United States” and then
must “make[] an application for such adjustment,” be “eligible to receive an immigrant
visa and [be] admissible to the United States for permanent residence,” and have “an
immigrant visa immediately available to [her].” 8 U.S.C. § 1255(a). We have
distinguished between the initial requirement that an alien be “admitted” and the
requirement that the alien be “admissible.” See Emokah v. Mukasey, 523 F.3d 110, 118
(2d Cir. 2008). An alien who enters the United States after inspection and authorization
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has been “admitted” even if she was, at the time of entry, in a class of aliens that would
render her “inadmissible.” Id.; see also 8 U.S.C. § 1227(a), (a)(1). Thus, an alien may
have been admitted, but nonetheless be inadmissible. Emokah, 523 F.3d at 118.
Williams claimed that she was admitted to the United States because she was
inspected upon arrival to the United States, and her fraudulent Brazilian passport and
visitor’s visa issued in someone else’s name allowed her entry after inspection. Williams
acknowledges that entering the United States in such a manner renders her part of a class
of aliens inadmissible at the time of entry, pursuant to 8 U.S.C. § 1182(a)(6)(C)(i), which
states that “[a]ny alien who, by fraud or willfully misrepresenting a material fact, . . . has
procured . . . a visa, other documentation, or admission into the United States . . . is
inadmissible.” Accordingly, she applied for a waiver of inadmissibility pursuant to 8
U.S.C. § 1182(i)(1), which states that the fraud grounds of inadmissibility may be waived
if “refusal of admission to the United States . . . would result in extreme hardship to,”
inter alia, the alien’s United States citizen spouse. The IJ, in a ruling that was affirmed
by the BIA, disbelieved William’s claim that she had been admitted and further ruled that,
even if Williams had been inspected and admitted, she could not adjust status to a lawful
permanent resident because she was inadmissible and did not establish the requisite
extreme hardship to her United States citizen spouse that would allow for a waiver of
inadmissibility. Because even if she were admitted in the manner she alleges, Williams
must still obtain a waiver of her conceded inadmissibility, we address only the agency’s
dispositive determination as to the waiver.
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The agency found that even if Williams had been able to prove that she had been
admitted to the United States using a fraudulent passport and visitor’s visa, she was
nonetheless inadmissible and had not shown her eligibility for a waiver of inadmissibility
pursuant to 8 U.S.C. § 1182(i). We lack jurisdiction to review Williams’s challenge to
that decision.
Section 1182(i)(2) states explicitly that no court shall have jurisdiction to review a
decision regarding a Section 1182(i) waiver. Moreover, 8 U.S.C. § 1252(a)(2)(B) states
that no court shall have jurisdiction to review a denial of discretionary relief, including
denial of a Section 1182(i) waiver. Although we retain jurisdiction to review
constitutional claims and questions of law, see 8 U.S.C. § 1252(a)(2)(D), Williams’s only
argument regarding the denial of the Section 1182(i) waiver is that the agency erred by
not weighing all of the various hardships to which she and her husband testified. This
argument does not raise a constitutional claim or question of law. We thus lack
jurisdiction to consider it. See Camara v. Dep’t of Homeland Sec., 497 F.3d 121, 123-24
(2d Cir. 2007); Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 328-29 (2d Cir.
2006).
For the foregoing reasons, the petition for review is DISMISSED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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