Moussa Diallo v. Eric H. Holder, Jr. , 715 F.3d 714 ( 2013 )

United States Court of Appeals
For the Eighth Circuit
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No. 12-2514
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Moussa Diaw Diallo
lllllllllllllllllllllPetitioner
v.
Eric H. Holder, Jr., Attorney General of United States
lllllllllllllllllllllRespondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: February 14, 2013
Filed: May 31, 2013
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Before RILEY, Chief Judge, LOKEN and SHEPHERD, Circuit Judges.
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SHEPHERD, Circuit Judge.
Moussa Diaw Diallo petitions for review of a decision by the Board of
Immigration Appeals (“BIA”) affirming denial of his petition for adjustment of status.
We deny Diallo’s petition for review because we do not have jurisdiction to review
discretionary denials of adjustment of status. See 8 U.S.C. § 1252(a)(2)(B)(i)
(referencing 8 U.S.C. § 1255).
I.
The government initiated removal proceedings against Diallo, a Senegalese
citizen, after he failed to comply with the conditions of his non-immigrant student
visa. Diallo sought relief from removal in the form of adjustment of status under 8
U.S.C. § 1255(a). An Immigration Judge (“IJ”) denied Diallo’s requested relief,
finding that Diallo was statutorily ineligible for adjustment of status because he
provided material support to a terrorist organization while in Senegal. See 8 U.S.C.
§ 1182(a)(3)(B). The IJ further held that even if Diallo was eligible for relief, the IJ
would deny relief as a matter of discretion. The IJ also denied Diallo’s motion to
administratively close the proceedings. The BIA affirmed, and Diallo now petitions
for review of that decision.
II.
Diallo raises three primary issues in his petition. First, he argues the IJ and BIA
violated his due process rights by failing to administratively close his case. Second,
he challenges the BIA’s affirmance of the IJ’s adverse credibility findings concerning
his involvement with a terrorist organization. Third, he argues the IJ and BIA erred
in finding he was statutorily barred from adjustment of status. The government
responds that we lack jurisdiction to hear Diallo’s claims. Because we agree with the
government, we deny Diallo’s petition.
We review de novo whether we have subject-matter jurisdiction. United States
v. Afremov, 611 F.3d 970, 975 (8th Cir. 2010). We generally do not have jurisdiction
to review discretionary denials of adjustment of status. See 8 U.S.C. §
1252(a)(2)(B)(i) (referencing 8 U.S.C. § 1255). We do, however, have jurisdiction
to review those denials to the extent that they involve “constitutional claims or
questions of law.” 8 U.S.C. § 1252(a)(2)(D). “Only the BIA order is subject to our
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review, including the IJ’s findings and reasoning to the extent they were expressly
adopted by the BIA.” Fofanah v. Gonzales, 447 F.3d 1037, 1040 (8th Cir. 2006).
Diallo initially asserts that section 1252(a)(2)(B)(i) does not affect our
jurisdiction here because the IJ and BIA denied him relief on statutory, rather than
discretionary, grounds. However, the IJ stated that even if Diallo was statutorily
eligible for adjustment of status, the IJ “would nonetheless deny his application as a
matter of discretion.” The IJ then explained why the negative factors in Diallo’s case
outweighed the positive factors. The BIA adopted and affirmed this portion of the IJ’s
decision, stating that it found “no reason to disturb the Immigration Judge’s decision
denying the respondent’s application for adjustment of status in his discretion based
upon his finding that the respondent participated in terrorist activities.” Thus, because
the BIA denied Diallo adjustment of status in its discretion, we only have jurisdiction
to review Diallo’s challenges to the extent that they involve legal or constitutional
claims. See 8 U.S.C. § 1252(a)(2)(D).
Diallo attempts to characterize his first challenge as a constitutional one,
arguing that the IJ and BIA violated his due process rights by failing to
administratively close his removal case so that he could pursue other forms of
discretionary relief through different agency avenues. We have previously held,
however, that because “[a]dministrative closure is not a matter of statute or
regulation,” but rather “is merely an administrative convenience,” we cannot review
denials of administrative closure because we “lack . . . a meaningful standard upon
which to review the decision.” Hernandez v. Holder, 606 F.3d 900, 904 (8th Cir.
2010) (internal quotation marks omitted). Moreover, Diallo had no due process right
to pursue discretionary relief through other agency avenues because “we have
repeatedly held that there is no constitutionally protected liberty interest in
discretionary relief from removal.” See Ibrahimi v. Holder, 566 F.3d 758, 766 (8th
Cir. 2009) (internal quotation marks omitted). Consequently, Diallo has not stated a
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colorable legal or constitutional challenge relating to the denial of administrative
closure, and section 1252(a)(2)(B)(i) bars our review of this claim.1 See id. at 767.
Diallo next argues the BIA erred by affirming the IJ’s adverse credibility
findings. “Because his adverse credibility challenge raises a fact question, this court
lacks jurisdiction to review [his] claim.” Nadeem v. Holder, 599 F.3d 869, 872 (8th
Cir. 2010).
Finally, Diallo argues the IJ and the BIA erred in finding he was statutorily
barred from adjustment of status because Diallo testified he did not knowingly provide
material support to a terrorist organization. This argument is a repackaged challenge
to the IJ’s adverse credibility findings, and we consequently lack jurisdiction to
review it. See id. Even if we were to interpret it as a legal challenge, however, “[i]t
is . . . immaterial whether [Diallo] was statutorily ineligible for adjustment of status,
because the IJ separately denied adjustment as a matter of discretion . . . .” See Toby
v. Holder, 618 F.3d 963, 967-68 (8th Cir. 2010). For the reasons explained above, this
discretionary denial of relief is not reviewable, and it serves as an independent,
dispositive basis for the BIA’s decision. See id.III.
Accordingly, we deny Diallo’s petition for review.
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1
Diallo separately faults the BIA for not explicitly addressing his argument that
the IJ’s failure to administratively close his case violated his due process rights. The
BIA did, however, explain why the IJ’s denial of administrative closure was proper,
and “an alien has no constitutional right to a full-blown written opinion on every
issue.” See Doe v. Holder, 651 F.3d 824, 831 (8th Cir. 2011).
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