Dave, Ujjaval B. v. Ashcroft, John ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 02-4207, 03-1578 & 03-1579
UJJAVAL B. DAVE,
Petitioner-Appellant,
v.
JOHN D. ASHCROFT,
Respondent-Appellee.
____________
Petitions for Review of Orders of
the Board of Immigration Appeals.
No. A37-063-018
____________
ARGUED DECEMBER 17, 2003—DECIDED APRIL 14, 2004
____________
Before KANNE, ROVNER, and WILLIAMS, Circuit Judges.
ROVNER, Circuit Judge. Ujjaval Dave petitions for review
of three orders of the Board of Immigration Appeals, one
affirming the immigration judge’s decision to deny his
application for cancellation of removal, one denying his
motion for the BIA to reconsider its summary affirmance of
the IJ’s decision, and one denying his motion to reopen his
removal proceedings because his counsel was ineffective.
The Department of Homeland Security moves to dismiss
Dave’s petitions for lack of jurisdiction. We grant the DHS’s
motion and dismiss Dave’s petitions.
2 Nos. 02-4207, 03-1578 & 03-1579
Facts and Background Proceedings
Dave had been a legal permanent resident in the United
States since his arrival from India in 1980 at the age of five.
But in 1998, he was convicted of reckless discharge of a
firearm and the Immigration and Naturalization Service
subsequently charged him with removability under 8 U.S.C.
§ 1227(a)(2)(C) for using a firearm in violation of Illinois
state law. Dave conceded removability for the firearms
offense, but applied for cancellation of removal under 8
U.S.C. § 1229b(a).
The IJ found him eligible to apply for cancellation of
removal because he was a lawfully admitted permanent
resident for more than five years who has not been con-
victed of an aggravated felony. See id. The IJ then evalu-
ated Dave’s application using the balancing test set forth in
Matter of Marin, 16 I. & N. Dec. 581 (BIA 1978), which
requires an IJ to evaluate the circumstances of the appli-
cant’s situation and balance the equities in the applicant’s
favor against any adverse factors “that demonstrate his or
her undesirability as a permanent resident in the United
States.” Cortes-Castillo v. INS, 997 F.2d 1199, 1202-03 (7th
Cir. 1993). According to the IJ, the equities favoring Dave’s
situation were that he had been a legal resident since 1980;
he spoke only English; he had no immediate relatives in
India and his parents and siblings were all legally in the
United States; and he graduated from high school and had
been employed ever since. The IJ then balanced these
equities against the following adverse factors: that besides
his conviction in 1997 for reckless discharge of a firearm,
from 1994-1997 he was ticketed for numerous traffic
violations and convicted of both marijuana possession and
contributing to the delinquency of a minor; that in
1998—after the INS started removal proceedings against
him—Dave was convicted of a DUI; and that local authori-
ties suspected that Dave had for several years been affili-
ated with a gang. The IJ found that the factors in Dave’s
Nos. 02-4207, 03-1578 & 03-1579 3
favor were outweighed by “his criminal record and his
overall lack of responsibility for his actions,” and denied
Dave’s application.
Dave appealed to the BIA, arguing that the IJ erred in
evaluating his application by improperly requiring him to
demonstrate “outstanding equities” to merit cancellation of
removal, a heightened requirement under the Marin test
that the BIA applied formerly to applicants with serious
criminal backgrounds, see Matter of Edwards, 20 I. & N.
Dec. 191, 195-96 (BIA 1990), but has since abandoned, see
In re Sotelo-Sotelo, 23 I. & N. Dec 201 (BIA 2001). Dave
argued that this error, along with some factual misstate-
ments, led the IJ to place insufficient weight on the demon-
strated equities of his application. The BIA affirmed the IJ’s
decision without an opinion. See 8 C.F.R. § 1003.1(e)(4).
Dave then filed a motion to reconsider, see 8 C.F.R.
§ 1003.2(b), arguing that the BIA should not have used its
streamlining rule to dispose of his appeal because the IJ’s
alleged factual and legal errors necessitated review by
a three-member panel. The BIA denied Dave’s motion in
a per curiam order. The BIA determined that the IJ did not
improperly require Dave to demonstrate “outstanding
equities” in evaluating his application, and that the IJ’s
discretionary decision to deny Dave’s application was not
erroneous given Dave’s lack of candor and unwillingness to
accept responsibility “for his past violations of the law.”
Dave next filed a motion to reopen with the BIA, alleging
ineffective assistance of counsel in his removal proceedings.
See 8 C.F.R. § 1003.2(c)(1). Dave argued that his counsel’s
failure to present lay and expert witnesses to demonstrate
hardship and rehabilitation prejudiced his application to
the point that, if such testimony had been presented, the IJ
would have found in his favor. The BIA denied this motion
in another per curiam order, noting that Dave satisfied the
threshold requirements for stating a claim for ineffective
4 Nos. 02-4207, 03-1578 & 03-1579
assistance of counsel by filing the requisite affidavit, see
Matter of Lozado, 19 I. & N. Dec. 637 (BIA 1988); aff’d, 857
F.2d 10 (1st Cir. 1988), but failed to establish that “the
conduct of his former attorney caused him actual prejudice
or was so egregious that it rendered the hearing unfair.”
Analysis
Dave petitions for review of all three adverse decisions of
the BIA. The DHS, however, has moved to dismiss his
petitions on the ground that we lack jurisdiction to review
them under 8 U.S.C. § 1252(a)(2)(C), because Dave is re-
movable for committing a firearms offense. Under 8 U.S.C.
§ 1252(a)(2)(C), we lack jurisdiction to review “any final
order of removal against an alien who is removable by
reason of having committed a criminal offense covered in”
8 U.S.C. § 1227(a)(2)(C), which encompasses “certain fire-
arm offenses,” including “using . . . any weapon . . . which
is a firearm.” See Lemus-Rodriguez v. Ashcroft, 350 F.3d
652, 654 (7th Cir. 2003); Valerio-Ochoa v. Ashcroft, 241 F.3d
1092, 1094 (9th Cir. 2001). This jurisdictional bar comes
into play when, as here, the firearms offense forms the
basis on which an alien was found to be removable. Lemus-
Rodriguez, 350 F.3d at 654. Additionally, this jurisdictional
bar extends to successive motions to reopen or reconsider a
final order of removal, so it would preclude us from review-
ing any of Dave’s petitions. See Nwaokolo v. INS, 314 F.3d
303, 306 (7th Cir. 2002) (per curiam) (“Ms. Nwaokolo’s
motion to reopen is part and parcel of her deportation
proceedings.”); Chow v. INS, 113 F.3d 659, 664 (7th Cir.
1997) (an order of deportation includes “orders denying
motions to reconsider and reopen”), abrogated on other
grounds by LaGuerre v. Reno, 164 F.3d 1035 (7th Cir. 1998);
Mayard v. INS, 129 F.3d 438, 439 (8th Cir. 1997); Sarmadi
v. INS, 121 F.3d 1319, 1322 (9th Cir. 1997) (“[W]here
Congress explicitly withdraws our jurisdiction to review a
Nos. 02-4207, 03-1578 & 03-1579 5
final order of deportation, our authority to review motions
to reconsider or to reopen deportation proceedings is
thereby likewise withdrawn.”); Patel v. United States Att’y
Gen., 334 F.3d 1259, 1262 (11th Cir. 2003).
In response, Dave argues first that the DHS waived
its objection to our subject matter jurisdiction when it did
not raise this issue in its opening brief. This argument is a
nonstarter, however, because we may not decide a case
without subject matter jurisdiction and thus “neither the
parties nor their lawyers may . . . waive arguments that the
court lacks jurisdiction.” United States v. Tittjung, 235 F.3d
330, 335 (7th Cir. 2000); Seale v. INS, 323 F.3d 150, 152 n.1
(1st Cir. 2003).
Dave next argues that, even if the jurisdictional bar in
8 U.S.C. § 1252(a)(2)(C) applies to his petitions, we none-
theless have jurisdiction to consider them because he has
raised “substantial” constitutional issues. We retain juris-
diction over substantial constitutional claims “raised as a
‘safety valve’ to prevent ‘bizarre miscarriages of justice.’ ”
Lara-Ruiz v. INS, 241 F.3d 934, 939 (7th Cir. 2001) (quot-
ing Laguerre, 164 F.3d at 1040). Dave raises two constitu-
tional claims. First, he contends that the BIA violated his
due process rights by streamlining his appeal and denying
his motion to reconsider its decision to streamline, because
BIA regulations do not permit streamlining when an IJ fails
to follow BIA precedent or makes factual errors and
consequently arrives at an incorrect decision, see 8 C.F.R.
§ 1003.1(e)(6). See Reno v. Flores, 507 U.S. 292, 306 (1993)
(aliens have a right to due process in immigration proceed-
ings). Second, he argues that he was deprived of effective
assistance of counsel, a right that—at least in immigration
proceedings—also exists (if at all) under the due process
clause, see Pop v. INS, 279 F.3d 457, 460 (7th Cir. 2002);
Chowdhury v. INS, 241 F.3d 848, 854 (7th Cir. 2003).
Neither of these two alleged due process violations, how-
ever, presents a substantial constitutional issue such that
6 Nos. 02-4207, 03-1578 & 03-1579
we would have jurisdiction to review it. In order to make
out a claim for a violation of due process, a claimant must
have a liberty or property interest in the outcome of the
proceedings. See Dandan v. Ashcroft, 339 F.3d 567, 575 (7th
Cir. 2003). But in immigration proceedings, a petitioner has
no liberty or property interest in obtaining purely discre-
tionary relief, see Achacoso-Sanchez v. INS, 779 F.2d 1260,
1264 (7th Cir. 1985), and the denial of such relief therefore
cannot implicate due process, see, e.g. Dandan, 339 F.3d at
575-76 (“But, the decision when to commence deportation
proceedings is within the discretion of the Attorney General
and does not, therefore, involve a protected property or
liberty interest. [citation omitted] As such, Dandan’s due
process argument does not get off the ground.”); Appiah v.
INS, 202 F.3d 704, 709 (4th Cir. 2000); Finlay v. INS, 210
F.3d 556, 557 (5th Cir. 2000); Huicochea-Gomez v. INS, 237
F.3d 696, 700 (6th Cir. 2001); Nativi-Gomez v. Ashcroft, 344
F.3d 805, 808 (8th Cir. 2003); Aguilera v. Kirkpatrick, 241
F.3d 1286, 1292-93 (10th Cir. 2001); Mejia-Rodriguez v.
Reno, 178 F.3d 1139, 1146-48 (11th Cir. 1999). This ratio-
nale has been applied both to ineffective-assistance-of-
counsel claims, see Nativi-Gomez, 344 F.3d at 808, and
claims that the BIA improperly streamlined an appeal
despite an IJ’s use of an incorrect legal standard, see Garcia
v. Att’y Gen. of the United States, 329 F.3d 1217, 1222-23
(11th Cir. 2003). Because cancellation of removal is a form
of discretionary relief, see Lemus-Rodriguez, 350 F.3d at
653; Gill v. Ashcroft, 335 F.3d 574, 575 (7th Cir. 2003),
Dave cannot raise a due process challenge to the BIA’s
denial of his application for cancellation of removal. Thus
he does not present a “substantial constitutional claim,” and
we lack jurisdiction to review his petitions. See Garcia, 329
F.3d at 1222 (“[W]here a constitutional claim has no merit,
[we] do not have jurisdiction.”).
But even if Dave did have a liberty or property interest in
the requested relief such that he could invoke due process,
we would still lack jurisdiction to review his petitions. His
Nos. 02-4207, 03-1578 & 03-1579 7
claim that the BIA violated due process by streamlining his
appeal would face a separate jurisdictional bar, one that
prevents us from reviewing the merits of an IJ’s discretion-
ary decision to deny an application for cancellation of
removal. See 8 U.S.C. § 1252(a)(2)(B)(i) (“Denials of discre-
tionary relief. Notwithstanding any other provision of law,
no court shall have jurisdiction to review—(1) any judgment
granting relief under . . . [8 U.S.C. § 1229b].”); Carriche v.
Ashcroft, 335 F.3d 1009, 1017 (9th Cir. 2003) (determining
if the BIA correctly streamlined an appeal requires a review
of the merits of the IJ’s decision); see also Kharkhan v.
Ashcroft, 336 F.3d 601, 604 (7th Cir. 2002) (applying §
1252(a)(2)(B)(i) to denials of applications for cancellation of
removal). This jurisdictional prohibition extends to claims
that the IJ has made a legal or factual error, as Dave
argues here. Pilch v. Ashcroft, 353 F.3d 585, 586 (7th Cir.
2003) (The thing under review is the agency’s final decision,
not the language of its opinion; and if the decision is to
withhold certain discretionary remedies, that’s the end . . .
. we lack jurisdiction whether or not the agency made a
factual or legal error on the way to its decision.”).
As to Dave’s ineffective-assistance-of-counsel claim, we
would lack jurisdiction over it because it fails even on the
merits to present a substantial constitutional question.
Dave essentially challenges his counsel’s effectiveness in
failing to present enough witnesses and adequate evidence
to convince the IJ that he deserved to have his removal
cancelled. But Dave does not point to any specific evidence
or name any witness (except for his mother) that his coun-
sel could have presented at his hearing to prompt the IJ to
grant his application. Instead Dave makes only general
allegations that do not reveal egregious errors or dem-
onstrate that he was actually prejudiced by his counsel’s
performance, both of which Dave must show in order to
succeed on a claim for ineffective assistance of counsel in
immigration proceedings. See Rojas-Garcia v. Ashcroft, 339
F.3d 814, 827 (9th Cir. 2003).
8 Nos. 02-4207, 03-1578 & 03-1579
Dave has not raised any substantial constitutional claims
that could serve as a basis for us to assert jurisdiction to
review his petitions. Thus we must grant the DHS’s motion
and DISMISS Dave’s petitions.
We are not, however, unsympathetic to Dave’s situation.
Dave has spent a majority of his life in this country and
became removable only after committing an offense that, in
itself, rarely leads even to jailtime for a U.S. citizen. Dave
has now been removed to India, separated from his family,
and will not be able to return to the U.S. legally for at least
10 years, see 8 U.S.C. § 1182(a)(9)(ii)(I). Obviously he would
not be in this predicament if he had become a U.S. citizen
before the INS charged him with removability, see 8 U.S.C.
§ 1433. We note that Congress has reacted to situations like
Dave’s by enacting the Child Citizenship Act of 2000, Pub.
L. 106-395, 114 Stat. 1631, codified at 8 U.S.C. § 1431(a),
which grants automatic citizenship to children born outside
of the United States who have at least one U.S. citizen
parent. See Ejelonu v. INS, 355 F.3d 539 (6th Cir. 2004)
(discussing the legislative history and passage of the CCA).
Unfortunately for Dave, even though both his parents are
U.S. citizens he does not qualify for automatic citizenship
under the CCA because he was over the age of 18 on the
CCA’s effective date, February 7, 2001. Gomez-Diaz v.
Ashcroft, 324 F.3d 913, 916 (7th Cir. 2003); Drakes v.
Ashcroft, 323 F.3d 189, 191 (2d Cir. 2003); Nehme v. INS,
252 F.3d 415, 431 (5th Cir. 2001); Hughes v. Ashcroft, 255
F.3d 752, 760 (9th Cir. 2001); United States v. Arbelo, 288
F.3d 1262, 1263 (11th Cir. 2002); In re Rodriguez-Tejedor,
23 I. & N. Dec. 153 (BIA 2001); 8 C.F.R. § 320.2(a)(2).
Nos. 02-4207, 03-1578 & 03-1579 9
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-14-04