Lakhavani v. Mukasey , 255 F. App'x 819 ( 2007 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 13, 2007
No. 06-60106 Charles R. Fulbruge III
Clerk
SHAYAM LA LAKHAVANI
Petitioner
v.
MICHAEL B MUKASEY, U S ATTORNEY GENERAL
Respondent
Petitions for Review of Orders of the
Board of Immigration Appeals
BIA No. A26 703 182
Before BENAVIDES, CLEMENT and PRADO, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge.*
Shayam La Lakhavani seeks a petition for review of the orders of the
Board of Immigration Appeals (“BIA”) dismissing his appeal, denying his motion
to remand, and denying his motion for reconsideration. The respondent has filed
a motion to dismiss Lakhavani’s petition for lack of jurisdiction pursuant to 8
U.S.C. § 1252(a)(2)(C). As Lakhavani concedes, § 1252(a)(2)(C) is applicable to
him because he qualified for removal when he committed an aggravated felony.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
No. 06-60106
However, he asserts that his arguments raise questions of law or constitutional
issues that are reviewable under 8 U.S.C. § 1252(a)(2)(D). Because his claims
are, in reality, attempts to have this Court revisit the factual findings and
procedural decisions of the tribunals below, we deny Lakhavani’s petition for
review. We grant in part and deny in part the Government’s motion to dismiss.
I. FACTS AND PROCEEDINGS
Lakhavani is a native and citizen of Pakistan who entered the United
States in 1980 as an immigrant.** In 1983, he married a United States citizen
and became a lawful permanent resident. In 1990, Lakhavani pleaded guilty to
receiving a firearm while under indictment and was sentenced to ten months of
imprisonment (five of which were served under home detention) and two years
of supervised release. In 2001, the Department of Justice (“DOJ”) charged
Lakhavani with being removable under 8 U.S.C. § 1227(a)(2)(C) based on the
1990 firearm conviction, and then later charged him with being removable for
committing an aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii) (based on
the same firearm offense).
At his February 2002 removal hearing before the United States
Immigration Court, Lakhavani admitted that the allegations against him were
true. The immigration judge (“IJ”) determined that Lakhavani was eligible for
adjustment of status based on his marriage to a U.S. citizen and reset
Lakhavani’s hearing to allow his wife to file a visa application which would
permit his status to be adjusted. Lakhavani stated that he wanted to apply for
**
Although the Government alleges that Lakhavani actually entered
the United States in 1983, it concedes that the year of entry is not relevant to
the outcome of this case.
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political asylum in addition to adjustment of status.*** The IJ informed him that
his convictions made him ineligible for asylum, but that he could apply for
withholding of removal. The IJ noted that his application for withholding of
removal would have to be received on the record and gave him a date of April 29,
2002 on which to submit it. At the April 2002 hearing, the IJ reminded
Lakhavani that the court was supposed to receive his form for withholding of
removal or relief under the Convention Against Torture (“CAT”) on that date.
United Nations Convention Against Torture and Other Cruel, Inhumane or
Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20
(1988), 1465 U.N.T.S. 113 (entered into force for the United States Nov. 20,
1994). Lakhavani did not submit the form for withholding of removal and did
not request extra time in which to do so. His counsel focused exclusively on
Lakhavani’s wife’s visa application and application for adjustment of status.
After Lakhavani’s wife’s visa application was approved in 2004, the IJ
conducted a hearing regarding Lakhavani’s application for adjustment of status.
The IJ noted that Lakhavani had numerous convictions from the 1980s and
1990s, including convictions for petty theft and assault, and that he had two
drunk driving convictions from 2004 while his immigration appeal was pending.
The IJ denied Lakhavani’s application on discretionary grounds based on
Lakhavani’s criminal convictions, which Lakhavani stated stemmed from his
alcohol use, and based on the IJ’s conclusion that Lakhavani was unwilling to
deal with his “alcohol problem.” After the IJ pronounced his decision, Lakhavani
asked for the opportunity to file a claim for withholding of removal. The IJ
denied that request as untimely. Lakhavani appealed to the BIA, which
***
Lakhavani’s application for asylum or withholding of removal would
become unnecessary if he were granted adjustment of status based on a valid
spouse visa obtained by his U.S. citizen wife.
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sustained the IJ’s decision denying adjustment of status and denied Lakhavani’s
CAT application as untimely.
In addition to appealing the IJ’s denial, Lakhavani filed a motion to
remand for consideration of additional evidence and for consideration of his
application for withholding of removal under the CAT. The BIA dismissed the
appeal and denied the motion to remand. Lakhavani then filed a motion to
reopen or reconsider his case. The BIA denied Lakhavani’s motion to reopen or
reconsider his case. Lakhavani appeals the BIA’s decisions.
II. DISCUSSION
Lakhavani argues that the BIA erred by finding his claims for withholding
of removal under the Immigration and Nationality Act (“INA”) and the CAT to
be untimely and by failing to follow the proper legal standards for reviewing
those claims. The Government moves to dismiss Lakhavani’s claims for lack of
jurisdiction.
Under 8 U.S.C. § 1252(a)(2)(C), this Court does not have jurisdiction to
review orders of removal based on the petitioner’s criminal history. In 2005,
Congress amended § 1252 to permit judicial review of “constitutional claims or
questions of law.” REAL ID Act of 2005, Pub. L. No. 109-13, Div. B, 119 Stat.
231, 302 (codified at 8 U.S.C. § 1252(a)(2)(D)). We lack jurisdiction to review
Lakhavani’s claims unless they raise legal or constitutional questions. In
addition, “we lack jurisdiction over petitions for review concerning the
discretionary denial of relief under 8 U.S.C. § 1255,” the statute governing
adjustment of status. Hadwani v. Gonzales, 445 F.3d 798, 800 (5th Cir. 2006).
A. Withholding of Removal
Lakhavani argues that the BIA used an incorrect legal standard when it
denied his petition for withholding of removal. Lakhavani argues that
withholding removal was proper under both the CAT and the INA. Because
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No. 06-60106
Lakhavani raises his claim regarding withholding of removal under the INA for
the first time in this petition, this Court lacks jurisdiction to consider that claim.
See Wang v. Ashcroft, 260 F.3d 448, 452–53 (5th Cir. 2001).
The Government argues that this Court lacks jurisdiction to consider
Lakhavani’s CAT claim under 8 U.S.C. § 1252(a)(2)(C) because his challenge to
the IJ’s determination that he waived his CAT claim is not a question of law or
a constitutional question. We pretermit the jurisdictional question regarding the
timeliness of Lakhavani’s CAT claim because we conclude that Lakhavani has
failed to show that the IJ erred in determining that Lakhavani waived his
opportunity to file an application for CAT relief. See Madriz-Alvarado v.
Ashcroft, 383 F.3d 321, 327–28 (5th Cir. 2004) (pretermitting the question of this
Court’s jurisdiction under 8 U.S.C. § 1252(a)(2)(C) because relief was properly
denied on the merits).
Under 8 C.F.R. § 1003.31, “[i]f an application or document is not filed
within the time set by the Immigration Judge, the opportunity to file that
application or document shall be deemed waived.” Other circuits have held that
petitioners can waive CAT or asylum claims by failing to raise them at the time
designated by the IJ under 8 C.F.R. § 1003.31. Alsamhouri v. Gonzales, 484 F.3d
117, 122–24 (1st Cir. 2007); Rageevan v. U.S. Attorney Gen., 151 F. App’x 751,
753–56 (11th Cir. 2005); Hassan v. Gonzales, 152 F. App’x 177, 180–81 (3rd Cir.
2005). The IJ gave Lakhavani the opportunity to file an application for
withholding at his April 2002 hearing, and he failed to do so. The BIA correctly
affirmed the IJ’s decision denying Lakhavani leave to file an untimely
application for withholding of removal.
B. Motion To Reopen or Remand
Lakhavani also contends that the BIA erred by denying his motion to
reopen or remand to consider his claim for withholding of removal based upon
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No. 06-60106
changed circumstances. A motion to reopen may be filed in order to apply or
reapply for withholding of deportation based on changed circumstances arising
in the country of nationality if evidence of those changed circumstances is
“material and was not available and could not have been discovered or presented
at the previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii). Lakhavani asserts that he
did not present evidence regarding Pakistan at his hearing because he did not
believe he would be removed from the United States. He alleges that, after his
adjustment of status application was denied, the possibility of his removal to
Pakistan “became real” and constituted “a complete change of circumstances.”
Because a change of circumstances in Lakhavani’s mindset does not meet the
requirements set forth in § 1003.2(c)(3)(ii), his argument that the BIA should
have granted his motion to reopen or remand on this basis is without merit.
C. State-Created Danger
Lakhavani contends that the denial of his withholding of removal claim
will result in his removal to a country where he will face torture, and that this
fact constitutes a state-created danger, thereby violating his due process rights.
This is a constitutional question and we have jurisdiction to consider it under 8
U.S.C. § 1252(a)(2)(D). Other circuits that have considered this issue have
concluded that an alien does not have a constitutional due process right not to
be removed from the United States and that the application of the state-created
danger doctrine in the immigration context would overstep the judiciary’s
defined constitutional role. See Enwonwu v. Gonzales, 438 F.3d 22, 29–31 (1st
Cir. 2006); Kamara v. Attorney Gen., 420 F.3d 202, 217–18 (3d Cir. 2005). This
Court considered a criminal alien’s state-created danger claim in Guerra v.
Gonzales, 138 F. App’x 697, 699–700 (5th Cir. 2005). In its unpublished and
non-binding decision, this Court noted that “[the Fifth Circuit] has also not
applied the state created danger rule in the immigration context” and held that,
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even if the state-created danger doctrine were found to be applicable to
immigration cases, it would not apply under the facts before it because the
petitioner had failed to establish that he faced an increased risk of harm if he
were deported. Id.Lakhavani invokes the state-created danger doctrine in order to obtain
this Court’s review of his untimely CAT claim. We do not reach the
constitutional question, however, because Lakhavani’s argument is a challenge
to his final order of removal that is merely “cloaked in constitutional garb,” and
this Court lacks jurisdiction to consider it. Hadwani, 445 F.3d at 800–01.
D. Other Claims
Lakhavani argues that the BIA utilized the incorrect legal standard when
reviewing his adjustment of status claim. Although he couches this claim in legal
terms, he is actually requesting this Court to revisit the BIA’s factual
determination with regard to his eligibility. This Court lacks jurisdiction to
consider Lakhavani’s argument that the BIA utilized an incorrect legal standard
when reviewing his adjustment of status claim because it does not raise a true
question of law. See Delgado-Reynua v. Gonzales, 450 F.3d 596, 599–600 (5th
Cir. 2006).
Lakhavani also challenges the BIA’s failure to address allegedly improper
medical and psychological findings made by the IJ. Lakhavani argues that the
IJ improperly diagnosed him as an alcoholic and based his decision on this
ground. We pretermit the 8 U.S.C. § 1252(a)(2)(D) jurisdictional question over
that argument because Lakhavani has not shown that he is entitled to relief on
that ground. See Madriz-Alvarado, 383 F.3d at 327–28. This Court will not
reverse an IJ’s credibility determination unless the evidence compels it. Zhao v.
Gonzales, 404 F.3d 295, 306 (5th Cir. 2005). A review of the hearing transcripts
reveals that the IJ cited Lakhavani’s criminal history when considering whether
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to exercise his discretion to deny Lakhavani’s application for adjustment of
status. In his final statement, the IJ also found that Lakhavani’s “alcohol
problem” justified withholding of removal. Lakhavani, however, put his alcohol
use at issue when he testified that his past criminal behavior was all alcohol-
related and that his recent involvement with Alcoholics Anonymous (which the
court found to be sporadic) showed his commitment to sobriety. Pretermitting
the jurisdictional question, Lakhavani has not shown that the evidence at his
hearing compels a conclusion different than that reached by the IJ. Madriz-
Alvarado, 383 F.3d at 327–28.
Lakhavani finally argues that the BIA violated his due process rights by
failing to conduct an adequate review of his claims and by depriving him of the
opportunity to file a CAT claim. As stated previously, the BIA properly held that
Lakhavani waived his opportunity to file an application for CAT relief.
Moreover, because Lakhavani does not have a due process right to discretionary
relief, this Court lacks jurisdiction to consider his argument in relation to his
application for adjustment of status. See Ahmed v. Gonzales, 447 F.3d 433, 440
(5th Cir. 2006).
III. CONCLUSION
The respondent’s motion to dismiss is GRANTED in part and DENIED in
part. Lakhavani’s petition for review is DENIED.
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