Mohammad Khan v. Eric Holder, Jr, U S Attor ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 23, 2009
No. 09-60126 Charles R. Fulbruge III
Summary Calendar Clerk
MOHAMMAD IRFAN KHAN; UZMA IRFAN MUHAMMAD, also known as
Uzma Irfan Khan,
Petitioners
v.
ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
Before DAVIS, SMITH and DENNIS, Circuit Judges.
PER CURIAM:*
Petitioners Mohammad Irfan Khan (“Khan”) and his wife Uzma Irfan
Muhammad (“Muhammad”) have petitioned for review of a final order of
removal. Khan and Muhammad entered the United States in 1993 and 1996,
respectively, on non-immigrant temporary visitor visas. Both are citizens and
natives of Pakistan. In 2005, Khan and Muhammad were served with Notices
to Appear, charging them as removable for having stayed in the United States
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-60126
for longer than permitted. Before an Immigration Judge (“IJ”), petitioners
conceded removability as charged in their Notices to Appear. Khan and
Muhammad applied for cancellation of removal, arguing that removal would
result in exceptional hardship to their two minor children, both of whom are
United States citizens. The IJ denied Muhammad’s motion to sever her
application from her husband’s and for a continuance. As to Khan, the IJ ruled
that he failed to demonstrate that removal would result in exceptional and
extremely unusual hardship to his children.1 As to Muhammad, the IJ ruled that
she failed to meet the continuous presence requirement because she admitted
to having departed the United States for a period in excess of 90 days. The BIA
affirmed these rulings and dismissed the appeal. For the reasons set forth
below, we dismiss the petition in part for lack of jurisdiction, and deny the
remainder of the petition on the merits.
“The Attorney General may cancel removal of, and adjust to the status of
an alien lawfully admitted for permanent residence, an alien who is inadmissible
or deportable from the Untied States if the alien . . . has been physically present
in the United States for a continuous period of not less than 10 years
immediately preceding the date of such application [and] establishes that
removal would result in exceptional and extremely unusual hardship to the
alien’s spouse, parent, or child, who is a citizen of the United States.” 8 U.S.C.
§ 1229b(b)(1)(A) & (D). “An alien shall be considered to have failed to maintain
continuous physical presence in the United States under subsection[] (b)(1) . . .
of this section if the alien has departed from the United States for any period in
excess of 90 days or for any periods in the aggregate exceeding 180 days.” Id. §
1229b(d)(2).
1
The IJ alternatively determined that Khan failed to satisfy the continuous presence
requirement. The BIA did not address this ruling of the IJ, affirming only on the basis of the
IJ’s ruling that Khan failed to show that removal would result in a hardship to his children.
2
No. 09-60126
We generally lack jurisdiction to review the denial of an application for
cancellation of removal. See 8 U.S.C. § 1252(a)(2)(B)(i) (“[N]o court shall have
jurisdiction to review . . . any judgment regarding the granting of relief under
section . . . 1229b . . . of this title.”); Martinez v. Mukasey, 508 F.3d 255, 257-58
(5th Cir. 2007) (“Under 8 U.S.C. § 1252(a)(2)(B)(i), this court lacks jurisdiction
to review the IJ’s discretionary decisions under 8 U.S.C. § 1229b.”). We
therefore lack jurisdiction over the petition to the extent Khan challenges the
dispositive finding that his removal will not result in an exceptional hardship to
his children, see Sung v. Keisler, 505 F.3d 372, 377 (5th Cir. 2007), and dismiss
the petition for review to the extent it challenges his removal order.2
However, we “retain[] jurisdiction over purely legal and nondiscretionary
questions.” Wilmore v. Gonzales, 455 F.3d 524, 526 (5th Cir. 2006); Mireles-
Valdez v. Ashcroft, 349 F.3d 213, 216 (5th Cir. 2003) (holding that §
1252(a)(2)(B)’s “ban on review of ‘judgment[s] regarding the granting of relief’
precludes review of only discretionary decisions.”) “[W]hether an alien satisfies
the continuous presence requirement is a nondiscretionary determination
2
We retain jurisdiction over Khan’s challenge to the extent it presents a constitutional
claim or question of law. See Sung, 505 F.3d at 372. Khan argues the IJ’s ruling that he
lacked continuous presence resulted in the deprivation of due process. However, this ruling
was not part of the BIA’s decision, and his due process challenge is therefore not properly
before the court. See Majd v. Gonzales, 446 F.3d 590, 594 (5th Cir. 2006) (“We have authority
to review only the decision of the BIA,” unless “the BIA summarily affirms the IJ’s decision
without opinion.”).
Khan also argues that, in other similar cases, the BIA has found that removal of a
parent would cause exceptional hardship to the citizen children. The failure of the BIA to
reach that conclusion here, he contends, resulted in a denial of equal protection. Khan has
failed to explain why this purportedly disparate treatment violates his rights to equal
protection; instead, he has provided only a conclusory allegation that he was denied equal
protection. Accordingly, we find this argument waived for failure to adequately brief the issue.
See United States v. Thames, 214 F.3d 608, 611 n.3 (5th Cir. 2000); see also Fed. R. App. P.
28(a)(9)(A). Moreover, Khan’s equal protection argument is an attempt to cloak the non-
reviewable, discretionary decision to deny cancellation of removal in a legal framework, and
cannot create jurisdiction where it is otherwise lacking. See Falek v. Gonzales, 475 F.3d 285,
289 n.2 (5th Cir. 2007); Hadwani v. Gonzales, 445 F.3d 798, 800-01 (5th Cir. 2006).
3
No. 09-60126
because it involves straightforward statutory interpretation and application of
law to fact.” Mireles-Valdez, 349 F.3d at 217. Thus, we have jurisdiction to
review whether Muhammad was ineligible for cancellation because she lacked
the required continuous presence. See id.There was no error in the ruling that Muhammad had departed the United
States for a continuous 90-day period. “Administrative findings of fact are
conclusive unless a petitioner can show that ‘any reasonable adjudicator would
be compelled to conclude to the contrary.’” Tamara-Gomez v. Gonzales, 447 F.3d
343, 347 (5th Cir. 2006) (quoting 8 U.S.C. § 1252(b)(4)(B)). Muhammad testified
before the IJ that she left the United States in 1996 for a period of “six to seven
months.” ROA at 198. Khan also testified that his wife left the United States
beginning in January 1996 and continuing until “October or November of 1996.”
ROA at 162-63. This evidence more than adequately supports the BIA’s
conclusion that Muhammad is statutorily ineligible for cancellation of removal,
and Muhammad has pointed to no evidence compelling the contrary conclusion.
Muhammad has also not shown that she is eligible for an exception to the
continuous presence requirement. We therefore deny the petition for review to
the extent it challenges Muhammad’s removal order.3
Accordingly, the petition for review is DISMISSED in part for lack of
jurisdiction and DENIED in part.
3
Muhammad also argues the BIA erred in affirming the IJ’s denial of the motion to
sever her application for cancellation of removal from Khan’s and for a continuance. We
review this decision for abuse of discretion. See Witter v. INS, 113 F.3d 59, 555-56 (5th Cir.
1997). Because Muhammad failed to show any entitlement to cancellation of removal—and
in fact conceded facts making her statutorily ineligible for cancellation—we find no abuse of
discretion in the denial of her motion to sever or in the denial of a continuance. See Ahmed
v. Gonzales, 447 F.3d 433, 438 (5th Cir. 2006).
4