San Pedro v. Ashcroft ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DEODERICO POLINTAN SAN PEDRO, 
Petitioner, No. 02-74367
Petitioner,
v.  Agency No.
A41-250-336
JOHN ASHCROFT, Attorney General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 10, 2004*
Pasadena, California
Filed January 28, 2005
Before: Dorothy W. Nelson, Alex Kozinski, and
Susan P. Graber, Circuit Judges.
Opinion by Judge D.W. Nelson
*The panel unanimously finds this case suitable for decision without
oral argument. Fed. R. App. P. 34(a)(2)(C).
1225
SAN PEDRO v. ASHCROFT 1227
COUNSEL
Nora E. Milner, Law Offices of Nora E. Milner, Esq., San
Diego, California, for the petitioner.
Anthony P. Nicastro, United States Department of Justice,
Washington, D.C., for the respondent.
OPINION
D.W. Nelson, Senior Circuit Judge:
Deoderico San Pedro petitions for review of the Board of
Immigration Appeals’ (BIA) affirmance of the decision of the
1228 SAN PEDRO v. ASHCROFT
immigration judge (IJ) to deny San Pedro a waiver of removal
under Immigration and Nationality Act (INA) § 237(a)(1)(H),
8 U.S.C. § 1227(a)(1)(H) (2001). Because San Pedro’s appeal
was summarily affirmed by the BIA, we review the IJ’s deci-
sion as the final agency action. See Falcon Carriche v. Ash-
croft, 350 F.3d 845, 849 (9th Cir. 2003).
San Pedro, a citizen of the Philippines, entered the United
States in 1987 on a preference visa as the unmarried son of
a United States citizen. He willfully misrepresented to the INS
that he was unmarried. In fact, however, he had been married
since 1983 to a woman living in the Philippines.
In April 2000, the INS issued a Notice to Appear to San
Pedro charging him with removabililty under INA
§ 237(a)(1)(A), 8 U.S.C. § 1227(a)(1)(A), for being an
inadmissible alien at the time of entry under INA
§ 212(a)(6)(C)(i), 8 U.S.C. § 1182(a)(6)(C)(i).1 San Pedro
conceded removability, but sought several forms of relief: a
waiver under INA § 237(a)(1)(H), cancellation of removal
and, in the alternative, voluntary departure.2
The IJ found San Pedro statutorily ineligible for the
§ 237(a)(1)(H) waiver on the ground that San Pedro’s father,
who had petitioned for his entry visa, died several months
before San Pedro’s visa interview. Although San Pedro did
receive his visa in 1987, the IJ reasoned that, upon his father’s
death, it was automatically revoked, retroactive to the date of
approval, under 8 C.F.R. § 205.1(a)(3)(i)(C). Therefore, the IJ
deemed San Pedro incapable of meeting a threshold require-
1
INA § 212(a)(6)(C)(i) provides that, “Any alien who, by fraud or will-
fully misrepresenting a material fact, seeks to procure (or has sought to
procure or has procured) a visa, other documentation, or admission into
the United States or other benefit provided under this chapter is inadmissi-
ble.” 8 U.S.C. § 1182(a)(6)(C)(i).
2
San Pedro does not challenge the denial of his applications for cancel-
lation of removal and voluntary departure in this appeal.
SAN PEDRO v. ASHCROFT 1229
ment of the § 237(a)(1)(H) waiver — possession of an immi-
grant visa or equivalent document.
[1] The IJ also held that, “even if [San Pedro were] statu-
torily eligible for the requested waiver, the unfavorable fac-
tors in the record outweigh the favorable.” The IJ assumed
arguendo that San Pedro was statutorily eligible and con-
cluded, after lengthy analysis, that San Pedro did not merit a
favorable exercise of discretion. This alternative holding
makes impossible a determination of the basis for the BIA’s
affirmance. See Lanza v. Ashcroft, 389 F.3d 917, 924 (9th Cir.
2004) (remanding to the BIA for clarification in a similar cir-
cumstance); see also Zhu v. Ashcroft, 382 F.3d 521, 527 (5th
Cir. 2004) (same); Haoud v. Ashcroft, 350 F.3d 201, 205-06
(1st Cir. 2003) (same).
[2] On remand, if the BIA clearly affirms the discretionary
determination, we will lack jurisdiction to review San Pedro’s
petition under the judicial review provisions of INA
§ 242(a)(2)(B)(ii), 8 U.S.C. § 1252(a)(2)(B)(ii).3 In Spencer
Enterprises, Inc. v. United States, 345 F.3d 683 (9th Cir.
2003), we held that § 242(a)(2)(B)(ii) refers to “acts the
authority for which is specified under the INA to be discre-
tionary.” Id. at 689. The specified discretion must be pure and
unguided by legal standards. Id. at 689-90. Section
237(a)(1)(H) clearly specifies that the discretionary waiver
determination lies in the hands of the Attorney General. See
8 U.S.C. § 1227(a)(1)(H) (removal “may, in the discretion of
the Attorney General, be waived for any alien . . . who [meets
certain eligibility requirements]”). Although there are non-
discretionary eligibility elements that must be met under
3
INA § 242(a)(2)(B) provides: “Notwithstanding any other provision of
law, no court shall have jurisdiction to review — (i) any judgment regard-
ing the granting of relief under section 1182(h), 1182(i), 1229b, 1229c, or
1255 of this title, or (ii) any other decision or action of the Attorney Gen-
eral the authority for which is specified under this subchapter to be in the
discretion of the Attorney General, other than the granting of relief under
section 1158(a) of this title.” 8 U.S.C. § 1252(a)(2)(B).
1230 SAN PEDRO v. ASHCROFT
§ 237(a)(1)(H), “the ultimate authority whether to grant [the
waiver] rests entirely in the discretion of the Attorney Gener-
al.” Spencer, 345 F.3d at 690; see also Matsuk v. INS, 247
F.3d 999, 1002 (9th Cir. 2001). Accordingly, we have juris-
diction only to review the statutory eligibility elements under
§ 237(a)(1)(H) and lack jurisdiction to review discretionary
denial of the waiver.
San Pedro also argues that the streamlining of his appeal to
the BIA violated his due process rights. This argument has
been foreclosed by Falcon Carriche, 350 F.3d at 849-50.
VACATED AND REMANDED.