Cospito v. Atty Gen USA ( 2008 )


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  •                                                                                                                            Opinions of the United
    2008 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    8-14-2008
    Cospito v. Atty Gen USA
    Precedential or Non-Precedential: Precedential
    Docket No. 07-1619
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    Recommended Citation
    "Cospito v. Atty Gen USA" (2008). 2008 Decisions. Paper 588.
    http://digitalcommons.law.villanova.edu/thirdcircuit_2008/588
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    PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    ________________
    NO. 07-1619
    ________________
    LESLINE VERONICA COSPITO,
    a/k/a Lesline Stewart,
    Petitioner
    v.
    ATTORNEY GENERAL OF THE UNITED STATES,
    Respondent
    ___________________________________
    On a Petition For Review of a Decision
    of the Board of Immigration Appeals
    (Agency No. A74-967-725)
    Immigration Judge: Hon. Miriam K. Mills
    __________________________________
    Submitted Under Third Circuit LAR 34.1(a)
    August 13, 2008
    Before: FUENTES, ALDISERT AND GARTH, CIRCUIT
    JUDGES
    (Filed: August 14, 2008)
    Steven A. Morley, Esquire
    Morley, Surin & Griffin
    325 Chestnut Street
    Suite 1305-P
    Philadelphia, PA 19106
    Attorney for Petitioner
    Peter D. Keisler
    Assistant Attorney General, Civil Division
    David V. Bernal
    Assistant Director
    Andrew C. Maclachlan, Esquire
    United States Department of Justice
    Office of Immigration Litigation
    P.O. Box 878
    Ben Franklin Station
    Washington, DC 20044
    Attorneys for Respondent
    _________________
    OPINION OF THE COURT
    PER CURIAM
    Petitioner, Lesline Veronica Cospito, petitions for review
    of a final order of removal issued by the Board of Immigration
    Appeals (“BIA”). For the reasons that follow, the petition for
    review will be dismissed in part and denied in part.
    I.
    Cospito, a native and citizen of Jamaica, arrived in the
    United States on February 14, 1991 as non-immigrant temporary
    worker with authorization to remain in this country until July 31,
    1991. Cospito remained longer and, despite having two
    convictions for crimes involving moral turpitude (i.e.,
    Pennsylvania retail theft convictions from June 30, 1993 and
    March 28, 1996), Cospito managed to adjust her status to that of
    a lawful permanent resident (“LPR”) on October 20, 1998 on the
    basis of a marriage to a man nearly forty years her senior. After
    determining that Cospito willfully misrepresented the material
    facts of her two state court convictions by failing to disclose
    them, the former Immigration and Naturalization Service (now
    the Department of Homeland Security (“DHS”)) served her with
    a Notice to Appear on December 9, 2002, charging her as being
    subject to removal under INA § 237(a)(1)(A) [8 U.S.C. §
    2
    1227(a)(1)(A)], as an alien inadmissible at the time of entry or
    adjustment of status because she procured her immigrant visa
    and admission to the United States by fraud or the willful
    misrepresentation of a material fact and as an alien who had
    been convicted of a crime involving moral turpitude, as well as
    under INA § 237(a)(2)(A)(ii) [8 U.S.C. § 1227(a)(2)(A)(ii)] as
    an alien who had been convicted of two or more crimes
    involving moral turpitude after admission. A.R. 574-577.1 The
    government subsequently filed additional factual allegations in
    support of the charge of inadmissibility on the basis of Cospito’s
    failure to disclose two previous applications for permanent
    residence when she sought to adjust her status in 1996. A.R.
    570-573.
    The Immigration Judge (“IJ”) sustained the removal
    charges based on Cospito’s certified records of conviction and
    on her 1996 I-485 adjustment application (wherein she
    misrepresented that she had not previously applied for
    adjustment when, in fact, two prior adjustment applications had
    been filed on her behalf). Cospito thereafter requested a waiver
    under INA § 212(h) for her two criminal convictions and a §
    212(i) waiver for her failure to disclose those convictions and
    her prior applications on the I-485. The IJ, however, determined
    that Cospito was statutorily ineligible for a waiver under either
    INA §§ 212(h) or 212(i) [8 U.S.C. §§ 1182(h) & (i)] insofar as
    both waivers require the applicant to establish hardship to a
    qualifying relative if the applicant is removed, a requirement the
    IJ concluded Cospito was unable to meet. Finally, the IJ found
    that Cospito was also statutorily ineligible for voluntary
    departure. Accordingly, the IJ denied petitioner’s waiver
    requests and ordered her removed to Jamaica. A.R. 91-100.
    On appeal, the BIA adopted and affirmed the IJ’s
    decision with certain additions. The BIA found meritless
    Cospito’s argument that the DHS was collaterally estopped from
    initiating removal proceedings since it should have previously
    known of her criminal history and the existence of her prior
    1
    “A.R.” denotes the Administrative Record.
    3
    applications to adjust status, notwithstanding that she denied
    these facts in writing. The BIA concluded that both it and the IJ
    lacked the authority to estop the DHS from pursuing a lawful
    course of action. The BIA went on to state that Cospito is not
    entitled to retain her status as a lawful permanent resident when
    that status was erroneously granted based upon her own
    misrepresentations. The BIA further found no clear error with
    the IJ’s factual findings, agreed that Cospito failed to show that
    extreme hardship would occur to a qualifying relative for waiver
    purposes, and affirmed the IJ’s denial of voluntary departure as
    it would have denied that benefit in the exercise of discretion
    given her repeated attempts to obtain an immigration benefit by
    providing false information. A.R. 39. The BIA dismissed
    Cospito’s appeal accordingly.
    Cospito thereafter petitioned this Court for review of the
    BIA’s order on February 6, 2006. The following day, we issued
    our decision in Duvall v. Attorney General, 
    436 F.3d 382
    , 390
    (3d Cir. 2006), wherein we concluded that “the INA will be held
    to incorporate common law principles of collateral estoppel,”
    and that the BIA is required to apply those principles under
    certain circumstances. We thus granted respondent’s unopposed
    motion and remanded the matter to the BIA for it to consider
    petitioner’s contention that the IJ should have terminated
    removal proceedings in accordance with the doctrine of
    collateral estoppel in light of the previous grant of LPR status to
    Cospito. See C.A. No. 06-1488. In a decision subsequently
    issued on February 2, 2007, the BIA once again dismissed
    Cospito’s appeal after concluding that she could not use her LPR
    status, which she secured through fraud, as a shield against
    removal.
    The BIA recognized this Court’s determination in 
    Duvall, 436 F.3d at 387
    , that collateral estoppel can apply in
    immigration proceedings because the adjudicatory functions of
    the Immigration Courts and the BIA are inherently judicial in
    nature. However, the BIA also referenced our citation in Duvall
    to the Supreme Court’s holding in Pearson v. Williams, 
    202 U.S. 281
    (1906), that collateral estoppel did not prevent the DHS
    from instituting deportation proceedings after initially granting
    4
    an alien permission to enter the country. The BIA observed that
    “such a decision was based primarily on the limited scope and
    non-adjudicative nature of the entry examination, ‘attributes that
    are not shared by modern removal hearings.’” A.R. 3, quoting
    
    Duvall, 436 F.3d at 389
    . The BIA likened the DHS’s initial
    decision to grant an adjustment of status in this case more to the
    entry examination mentioned in Duvall than an adversarial
    process. The BIA explained that, when Cospito’s adjustment
    determination was made, there was no adjudicative hearing with
    opposing parties. Additionally, the DHS had no evidentiary
    burden of proof to meet and was not required to rebut any
    evidence concerning whether Cospito was eligible to adjust. The
    BIA also noted that Cospito’s written assertions (including those
    in her adjustment application) that she had no criminal history
    were themselves evidence for DHS to consider. The BIA further
    found that the IJ did not clearly err in finding those written
    materials to be more persuasive of what Cospito told the DHS
    agency official than her subsequent unsupported statements to
    the contrary. Finally, the BIA noted the fact that Cospito did not
    contend that she had filed an application of waiver of
    inadmissibility with the DHS, which should have been required
    if the DHS knew of her convictions. 
    Id., citing INA
    § 212(h)
    (conviction waiver); INA § 212(i) (fraud waiver). Thus, neither
    waiver was actually adjudicated or litigated during Cospito’s
    adjustment of status before the DHS, and, according to the BIA,
    Cospito’s use of fraud to affect the outcome of that application
    demonstrated that it was not a “full and fair litigation.” 
    Id. 4 (“The
    need for a fraud waiver under section 212(i) of the
    Act–for fraudulently obtaining an immigration benefit–arose as a
    result of [Cospito’s] actions during that adjustment process, and
    thus could not have been adjudicated at that time.”). In light of
    the foregoing, the BIA concluded that the “DHS was not
    collaterally estopped from raising or litigating any issues before
    the Immigration Judge or [the] Board concerning [Cospito’s]
    adjustment of status, removability, or any waiver of
    inadmissibility.” 
    Id. Once again,
    Cospito petitions this Court for review of the
    BIA’s order. In that petition, Cospito asserts that the DHS
    should be collaterally estopped from raising as a basis for her
    5
    removal convictions that it either knew about, or should have
    known about, at the time of the grant of LPR status, and that the
    IJ failed to properly consider all of the evidence of extreme
    hardship presented in support of her nunc pro tunc waiver
    requests and to examine such evidence in the aggregate.
    II.
    We have jurisdiction over the petition pursuant to INA §
    242 [8 U.S.C. § 1252]. As the government correctly points out,
    however, our jurisdiction does not extend to an agency’s factual
    and discretionary determinations underlying the denial of
    waivers based on an analysis involving extreme hardship. See
    INA 242(a)(2)(B) [8 U.S.C. § 1252(a)(2)(B)(i)]; Sukwanputra v.
    Gonzales, 
    434 F.3d 627
    , 634 (3d Cir. 2006) (“[W]e join our
    sister courts in concluding that despite the changes of the REAL
    ID Act, factual or discretionary determinations continue to fall
    outside the jurisdiction of the courts of appeals entertaining a
    petition for review.”). See also Mendez-Moranchel v. Ashcroft,
    
    338 F.3d 176
    , 179 (3d Cir. 2003) (judgment regarding whether
    an alien will suffer an “exceptional and extremely unusual
    hardship” for cancellation of removal is a discretionary one);
    Rodrigues-Nascimento v. Gonzales, 
    485 F.3d 60
    , 62 (1st Cir.
    2007) (IJ’s analysis of extreme hardship under § 1182(h) “is
    precisely the type of review that is precluded by 8 U.S.C. §
    1252(a)(2)(B)”); Camara v. Dep’t of Homeland Sec., 
    497 F.3d 121
    , 124 (2d Cir. 2007) (Court of Appeals lacks jurisdiction to
    review the factual and discretionary decisions underlying the
    denial of an application for a waiver of inadmissibility based on
    “extreme hardship”). Moreover, while we retain jurisdiction
    under INA § 242(a)(2)(D) [8 U.S.C. § 1252(a)(2)(D)] to review
    colorable “constitutional claims or questions of law,” that
    jurisdictional grant is “narrowly circumscribed.” See Jarbough
    v. Attorney General, 
    483 F.3d 184
    , 188 (3d Cir. 2007). A party
    cannot confer jurisdiction on this Court where none exists simply
    by attaching a particular label to the claim raised in a petition for
    review. 
    Id. at 189-90.
    Cospito’s challenge to the waiver determination in the
    instant case centers on the IJ’s consideration of the evidence
    petitioner submitted in support of a finding of extreme hardship
    6
    to her qualifying relatives.2 More particularly, Cospito argues
    that the IJ gave “short shrift to crucial evidence,” see Pet’s Brief
    at 33, “ignored crucial and uncontradicted evidence,” 
    id. at 34,
    “failed to consider the emotional impact” on Mr. Cospito of the
    loss of his two young children who would return to Jamaica with
    petitioner, 
    id., and that
    the IJ “simply looked at individual
    factors” rather than provide an evaluation of the factors in the
    aggregate. 
    Id. at 36.
    We agree with the government that these
    contentions do not raise constitutional claims or questions of
    law. Cospito’s arguments amount to nothing more than
    “quarrels over the exercise of discretion and the correctness of
    the factual findings reached by the agency.” Emokah v.
    Mukasey, 
    523 F.3d 110
    , 119 (2d Cir. 2008), quoting 
    Camara, 497 F.3d at 124
    . See also Arias v. Attorney General, 
    482 F.3d 1281
    , 1284 (11th Cir. 2007) (claim that BIA and IJ erred in
    failing to consider and weigh all the factors presented by
    petitioner in support of the waiver is simply a challenge to the
    BIA’s and IJ’s exercise of discretion which Court of Appeals
    lacks jurisdiction to review). Accordingly, we will dismiss that
    portion of Cospito’s petition for review challenging the agency’s
    discretionary waiver determination.
    The remainder of the petition for review will be denied.
    “Application of collateral estoppel is a question of law, Nat’l
    R.R. Passenger Corp. v. Pa. Pub. Util. Comm’n, 
    342 F.3d 242
    ,
    252 (3d Cir. 2003), and we exercise plenary review of the BIA’s
    legal determinations, subject to established principles of
    2
    We do not consider petitioner’s challenge that the agency
    misinterpreted the time frame under which a nunc pro tunc
    waiver request based on extreme hardship should be evaluated as
    no such argument was presented to the IJ or BIA. See 8 U.S.C.
    § 1252(d)(1) (exhaustion of administrative remedies mandatory
    and jurisdictional); see also Bonhometre v. Gonzales, 
    414 F.3d 442
    , 447 (3d Cir. 2005) (“To exhaust a claim before the agency,
    an applicant must first raise the issue before the BIA or IJ, so as
    to give it the opportunity to resolve a controversy or correct its
    own errors before judicial intervention.” (internal quotations and
    citation omitted)).
    7
    deference.” Szehinskyj v. Atty. Gen., 
    432 F.3d 253
    , 255 (3d Cir.
    2005). In full agreement with the BIA, we hold that the DHS
    was not collaterally estopped from raising issues concerning
    Cospito’s adjustment of status, removability or any waiver of
    inadmissibility.
    It is well established that in order for collateral estoppel
    to apply, the following requirements must be met: “(1) the
    identical issue was previously adjudicated; (2) the issue was
    actually litigated; (3) the previous determination was necessary
    to the decision; and (4) the party being precluded from
    relitigating the issue was fully represented in the prior action.”
    
    Id., quoting Henglein
    v. Colt Indus. Operating Corp., 
    260 F.3d 210
    , 209 (3d Cir. 2001). To be certain, “[t]he doctrine of
    collateral estoppel has long been understood to apply in all
    proceedings that may be deemed ‘adjudicative’” in nature.
    
    Duvall, 436 F.3d at 390
    , citing United States v. Utah Constr. &
    Mining Co., 
    384 U.S. 394
    , 421-22 & n. 20 (1966). In the instant
    case, for the ample and cogent reasons provided by the BIA, we
    can find no error with the BIA’s conclusion that Cospito’s
    interview with an agency official regarding her adjustment of
    status application was not an “adjudicative” proceeding. Cospito
    has failed to identify a single case where such an adjustment
    interview or similar examination was considered sufficiently
    adjudicative in nature for purposes of applying the collateral
    estoppel doctrine, and our own research has not uncovered any.
    To the contrary, the Fifth Circuit Court of Appeals has
    specifically concluded that, because “applications for adjustment
    of status are not normally adversarial in nature, and do not
    involve an IJ,” the petitioner’s “adjustment of status was not
    adjudicatory in nature, and thus is not entitled to res judicata
    effect.” Andrade v. Gonzales, 
    459 F.3d 538
    , 545 (5th Cir.
    2006), citing Medina v. INS, 
    993 F.2d 499
    , 503 (5th Cir. 1993).
    We agree with the conclusion of our sister circuit. There is
    nothing in the record before us which establishes that Cospito’s
    adjustment of status interview was conducted in any unusual
    manner, and nothing that would render that interview “inherently
    judicial in nature.” Furthermore, as we stated in Duvall,
    collateral estoppel “will not preclude relitigation of the issue
    when there is a substantial difference in the procedures
    8
    employed by the prior and current tribunals....” 
    Duvall, 436 F.3d at 391
    . There can be little doubt that there exists a substantial
    difference between the procedures employed by the agency
    official during the adjustment of status in this case and those
    governing a adversarial proceeding conducted by an IJ.
    Moving beyond the non-adjudicative nature of the
    adjustment of status, Cospito’s collateral estoppel challenge
    faces additional insurmountable hurdles which require little in
    the way of elaboration. As the BIA determined, the issue of
    waiver was never raised, litigated or adjudicated during
    Cospito’s adjustment proceeding – a necessary precondition for
    application of the doctrine of collateral estoppel, see 
    Szehinskyj, 432 F.3d at 255
    – given what the IJ found to be fraudulent
    actions on the part of Cospito. Finally, we can find no fault with
    the BIA’s conclusion that Cospito’s fraudulent actions during
    the adjustment of status process prevented the “full and fair
    litigation” of the very issues she now seeks to collaterally estop
    the DHS from litigating. See, e.g., Pereira-Barbeira v. INS, 
    523 F.2d 503
    , 507 n. 3 (2d Cir. 1975) (“The fraud on the basis of
    which [a petitioner] was granted ... adjustment of status
    necessarily vitiated any res judicata effect of those proceedings
    in the current deportation proceedings.”).
    III.
    Accordingly, given the foregoing reasons, the petition for
    review is (1) denied as to Cospito’s challenge to the BIA’s
    determination that the DHS was not collaterally estopped from
    raising issues concerning her adjustment of status, removability
    or any waiver of inadmissibility, and (2) dismissed as to
    Cospito’s challenge to the agency’s discretionary denial of her
    waiver requests.3
    3
    Given our disposition, we need not reach the issue of the
    “fugitive disentitlement” doctrine raised by the respondent.