Baraka Jerry Dukuly v. Michael B. Mukasey, etc. ( 2008 )


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  •                      United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 07-3873
    ___________
    Baraka Jerry Dukuly,                    *
    *
    Petitioner,                *
    * Petition for Review
    v.                                * of an Order of the
    * Board of Immigration Appeals.
    Michael B. Mukasey,                     *
    Attorney General,                       *
    *
    Respondent.                *
    ___________
    Submitted: September 25, 2008
    Filed: December 24, 2008
    ___________
    Before WOLLMAN, SMITH, and GRUENDER, Circuit Judges.
    ___________
    WOLLMAN, Circuit Judge.
    Baraka Dukuly petitions for review of a Board of Immigration Appeals (BIA)
    decision upholding the Immigration Judge’s (IJ) denial of an adjustment of status. We
    dismiss the petition for lack of jurisdiction.
    I.
    Dukuly is a male Liberian citizen who apparently entered the United States in
    1996. In December 2003, Dukuly filed an application for asylum, withholding of
    removal, and protection under the Convention Against Torture. In his asylum
    application, Dukuly claimed that he entered the United States on April 12, 2002, after
    suffering more than a decade of persecution in Liberia. Dukuly stated that his parents
    had been killed by Charles Taylor rebels when he was nine years old, and he claimed
    that the rebels had tortured and sexually abused him. He described being freed from
    the rebels by a kind elderly woman; wandering for several years through Ivory Coast
    refugee camps; and finally being placed by a friend on a ship headed for the United
    States. A government background check, however, revealed that Dukuly had been
    arrested in the United States as early as 1999, three years before he claimed to have
    arrived. Dukuly then sought to amend his asylum application, and later he withdrew
    it altogether.
    On January 28, 2005, the Department of Homeland Security commenced
    removal proceedings against Dukuly. Dukuly conceded removability but sought
    adjustment of status (based upon his recent marriage to a naturalized American
    citizen) and waiver of inadmissability for filing a fabricated asylum application.
    During the removal hearings, Dukuly admitted that he had falsified information in his
    original asylum application, but claimed that his dishonesty was caused by his extreme
    reticence to disclose traumatic details about past abuse. He testified that after his
    parents were killed, he was befriended by a man named Hamidou Solko, who initially
    appeared to be kind but ultimately proved to be a pedophile who subjected Dukuly to
    six years of sexual abuse. Dukuly claimed that, shortly after he turned fourteen years
    old, Hamidou sent him to the United States. He stated that he entered the country by
    plane on September 19, 1996, clearing customs inspection at JFK Airport with a
    visitor visa procured by Hamidou. Government records appear to corroborate this
    entry date.
    Several witnesses testified on Dukuly’s behalf. Christian Flah testified that he
    had known Dukuly as a child and that he had heard that Dukuly’s family was
    apprehended by Charles Taylor forces. Dukuly’s wife testified that she had various
    disabilities and would be seriously harmed if her husband were deported. Finally,
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    Charles Tracy, Dukuly’s social worker, spoke about the nature of the abuse Dukuly
    had suffered. In Tracy’s opinion, Dukuly’s original dishonesty was attributable to
    abuse trauma and was consistent with deep psychological injury.
    On June 26, 2007, the IJ granted the fraud waiver but denied Dukuly’s request
    for adjustment of status, concluding that Dukuly did not merit a favorable exercise of
    discretion. The BIA upheld the decision, and Dukuly appeals.
    II.
    Adjustment of status is a discretionary decision committed to the Attorney
    General. See 8 U.S.C. § 1255. We lack jurisdiction to review the exercise of that
    discretion “unless the petition for review raises a constitutional claim or question of
    law.” Hailemichael v. Gonzales, 
    454 F.3d 878
    , 886 (8th Cir. 2006); see also 8 U.S.C.
    § 1252(a)(2)(B)(i). A petitioner cannot evade this jurisdictional barrier by couching
    a factual argument in legal or constitutional terms; he must present a colorable legal
    or constitutional claim. See Higuit v. Gonzales, 
    433 F.3d 417
    , 420 (4th Cir. 2006)
    (“We are not free to convert every immigration case into a question of law, and
    thereby undermine Congress’s decision to grant limited jurisdiction over matters
    committed in the first instance to the sound discretion of the Executive.”). To
    establish a violation of due process rights, a petitioner must show fundamental
    unfairness or procedural irregularities that prejudiced his case. Salkeld v. Gonzales,
    
    420 F.3d 804
    , 810 (8th Cir. 2005). Dukuly has not overcome this jurisdictional
    hurdle.
    Several of Dukuly’s arguments must be dismissed as disagreements with the
    IJ’s factual determinations. Dukuly argues, for example, that the IJ’s decision was
    arbitrary and unfair because it ignored important evidence that supported his claim:
    in particular, Tracy’s expert testimony attributing Dukuly’s fabrications to sexual
    abuse trauma, and government records that corroborated Dukuly’s second purported
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    entry date. The record, however, does not sustain Dukuly’s assertion that the IJ
    ignored this evidence. Instead, it shows that the IJ considered the evidence but found
    it unpersuasive when weighed against other factors—including Dukuly’s
    demonstrated propensity to lie about his past and the readiness of his social workers,
    family, and friends to believe and support a story that later proved false.1 Compare
    Tun v. Gonzales, 
    485 F.3d 1014
    , 1026 (8th Cir. 2007) (holding that improper
    exclusion of expert testimony violated the petitioner’s due process rights). We do not
    have jurisdiction to second-guess this determination.
    Dukuly argues that two other aspects of the IJ’s decision violated his due
    process rights. First, he asserts that the IJ refused his adjustment of status application
    to punish him for lying; second, he contends that the IJ’s simultaneous grant of the
    fraud waiver and denial of adjustment of status was arbitrary and capricious. Neither
    of these arguments presents a colorable constitutional claim. The IJ’s opinion
    weighed humanitarian considerations against the gravity of lying to the United States
    government. The IJ was also cognizant of the impact his decision would have on the
    immigration system, expressing his concern about promoting dishonesty in the asylum
    process. The IJ’s sensitivity to these issues does not make the decision unduly
    punitive. Likewise, the IJ’s decision to grant the fraud waiver—in deference to
    Dukuly’s citizen wife and with the intent to enable Dukuly to someday return—was
    1
    The IJ also expressed skepticism of Dukuly’s motivation for originally
    asserting a 2002 entry date. Dukuly’s counsel insists that his only possible motivation
    was fear of disclosing Hamidou and the associated sexual abuse. But this contention
    ignores an obvious rebuttal: Dukuly’s last arrest was in December 2001, and his
    original story allowed him to omit his criminal record.
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    not arbitrary or capricious. To the contrary, the IJ carefully explained that his ruling
    was an effort to temper justice with lenity, and we see no constitutional error in that
    decision.
    III.
    The petition for review is dismissed.
    ______________________________
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