Dilshad Sattani v. Eric Holder, Jr. ( 2014 )

Case: 13-60219 Document: 00512594862 Page: 1 Date Filed: 04/14/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 14, 2014
No. 13-60219
Lyle W. Cayce
Clerk
DILSHAD NASEEM SATTANI; NASEEM KAMRUDDIN SATTANI, also
known as Merchant Asheef,
Petitioners
v.
ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,
Respondent
____________________________________
Petition for Review of an Order of the
Board of Immigration Appeals
_____________________________________
Before HIGGINBOTHAM, DAVIS, and HAYNES, Circuit Judges.
PER CURIAM:
Dilshad Sattani and Naseem Sattani appeal the Board of Immigration
Appeals’ (the “BIA”) decision denying their petition for adjustment of status,
cancellation of removal, and voluntary departure. The BIA determined that
Dilshad cannot adjust status under Immigration and Nationality Act (INA)
§ 245(i) (codified at 8 U.S.C. § 1255(i)) because she is rendered inadmissible
under INA § 212(a)(6)(C)(i) (codified at 8 U.S.C. § 1182(a)(6)(C)(i)) for having
entered the U.S. with falsified immigration documents. Dilshad asks this
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No. 13-60219
Court to hold that eligibility to adjust status under INA § 245(i) overcomes
inadmissibility under INA § 212(a)(6)(C)(i). She also asks this court to reverse
the BIA’s factual determinations that her United States citizen son would not
suffer the extreme hardship required for cancellation of removal and that she
should be granted voluntary departure, both of which this Court lacks
jurisdiction to do. We DENY IN PART and DISMISS FOR LACK OF
JURISDICTION IN PART.
I.
Dilshad Sattani and Naseem Sattani, a married couple who are natives
and citizens of India, seek review of a March 2013 final order of the BIA that
they be deported. Both were admitted to the United States in August 1992
using passports and visas bearing names other than their own. 1 They arrived
with a son, Sameer, who was born in India, and have a United States citizen
son, Saif, who was born after their arrival.
In 2004, the U.S. Department of Homeland Security served Dilshad and
Naseem with Notices to Appear. The Notices charged Dilshad with being
removable as an alien who entered the United States without inspection. They
charged Naseem with being removable as an alien who entered the United
States without inspection, and for his 1995 attempt to enter by fraud. Both
admit that they are removable. 2
Before the immigration judge (“IJ”), Dilshad applied to adjust status on
the basis of an employment-based visa that had been approved on April 30,
2009. Naseem applied as a derivative beneficiary of that application; because
he had been found inadmissible in his June 1995 reentry attempt, he also filed
1At the hearing before the immigration judge, Naseem testified that the family
attempted to obtain passports and visas in their own names but were denied, and thereafter
obtained the documents using false names.
2Dilshad would later testify that the charged basis for removability is inaccurate, as
she was actually inspected and admitted, but on fraudulent documents; she does not dispute
that she is, in fact, removable.
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an application to waive that ground of inadmissibility under INA § 212(i)
(codified at 8 U.S.C. § 1182(i)), which requires Naseem to show hardship to a
qualifying relative (here Dilshad, if she were able to adjust status to lawful
permanent relative). Both also applied for cancellation of removal for non-
permanent residents under INA § 240A(b) (codified at 8 U.S.C. § 1229b(b)),
claiming exceptional hardship to Saif if they were removed, and in the
alternative, for voluntary departure under INA § 240B(b) (codified at 8 U.S.C.
§ 1229c(b)).
After a hearing, the IJ found petitioners removable and denied both
applications for adjustment of status, cancellation of removal, and voluntary
departure, and ordered Dilshad and Naseem to be removed to India. Both
petitioners appealed to the BIA, which dismissed their appeal in March 2013.
This petition for review timely followed.
II.
We review only those issues that are properly before us under the
amended governing law that grants us subject-matter jurisdiction, the REAL
ID Act of 2005. See Said v. Gonzales, 488 F.3d 668, 670 (5th Cir. 2007) (citing
8 U.S.C. § 1252 (2006)). It grants this Court “subject-matter jurisdiction over
constitutional claims and questions of law that were exhausted before the
BIA.” Id. (citing 8 U.S.C. §§ 1252(a)(2)(D), 1252(d)(1)). Unless a discretionary
grant or denial of relief poses such a claim or question, we lack jurisdiction to
review it. See id. (citing 8 U.S.C. § 1252(a)(2)(B)).
We review questions relating to our jurisdiction to consider challenges to
a final order of the BIA de novo. See Balogun v. Ashcroft, 270 F.3d 274, 277
(5th Cir. 2001). The same standard applies to constitutional claims and
questions of law. See Mai v. Gonzales, 473 F.3d 162, 164 (5th Cir. 2006). To
the extent the BIA’s decision is affected by the IJ’s ruling, we review both
decisions. See Zhu v. Gonzales, 493 F.3d 588, 593 (5th Cir. 2007).
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III.
Dilshad Sattani first contends that her eligibility to adjust her status
pursuant to INA § 245(i) overcomes her ground of inadmissibility under INA
§ 212(a)(6)(C)(i). The plain statutory text compels us to disagree.
Section 245 of the INA provides for the “[a]djustment of status of
nonimmigrant to that of person admitted for permanent resident.” 8 U.S.C.
§ 1255. Section 245(i), the relevant subpart here, provides that “an alien
physically present in the United States who entered the United States without
inspection[,] or is within one of the classes enumerated in subsection (c) of this
section . . . may apply to the Attorney General for the adjustment of his or her
status to that of an alien lawfully admitted for permanent residence.” 8 U.S.C.
§ 1255(i)(1)(A)–(C). It goes on to say that the Attorney General may adjust a
petitioner’s status if, among other things not at issue here, “the alien is eligible
to receive an immigrant visa and is admissible to the United States for
permanent residence.” 8 U.S.C. § 1255(i)(2)(A) (emphasis added). Eligibility
for visas and admissibility is governed by INA § 212(a), so an applicant for
adjustment of status under INA § 245(i) must establish that she is “not
inadmissible under any of the various paragraphs of [§] 212(a) . . . or that [she
is] eligible for a waiver of any applicable ground of inadmissibility.” Matter of
Lemus-Losa, 25 I & N Dec. 734, 736 (BIA 2012). 3
But Dilshad argues that after Congress amended the INA in the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996, Division C of
Pub. L. No. 104-208, 110 Stat. 3009-546, 3009, 577, the statutory language
created an ostensible inconsistency. 4 Section 245(i), which makes aliens
3Dilshad does not dispute that she is ineligible for a waiver of inadmissibility under
INA § 212(i).
4 Specifically, an alien who entered the United States without inspection became
“inadmissible”; previously, such an alien was considered “deportable,” a classification that
did not prevent the alien from satisfying the “admissibility” requirement of INA
§ 245(i)(2)(A). In re Briones, 24 I & N Dec. 355, 362–63 (BIA 2007).
4
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present without inspection eligible to adjust if they are admissible, appears to
be in conflict with INA § 212(a)(6)(A)(i), which renders inadmissible aliens
present without inspection. See Briones, 24 I & N Dec. at 365 (discussing
inconsistency and concluding that harmonization was necessary to avoid “an
absurd result.”).
Dilshad argues that the reasoning of Briones compels us to extend the
INA § 245(i) carve-out exception the BIA gave to INA § 212(a)(6)(A)(i) (entry
without inspection), to her disqualifier, INA § 212(a)(6)(C)(i) (entry with
fraudulent documents), because it likewise mirrors the group of aliens in
unlawful status intended to benefit from INA § 245(i). However, no such
inconsistency is presented by the interplay between INA § 245(c)(7) (codified
at 8 U.S.C. § 1255(c)(7)), at issue here, and a different subparagraph at issue
in this case, INA § 212(a)(6)(C)(i), which makes inadmissible aliens who
procured a visa by fraud. Unlike the INA § 212(a)(6)(A)(i) group at issue in
Briones which was coextensive with the INA § 245(i) group analyzed there, the
INA § 212(a)(6)(C)(i) group is not coextensive with the INA § 245(c)(7) group at
issue here. In other words, not all persons who seek adjustment of status
through an employment-based visa, 5 procured a visa by fraud or
misrepresentation. Thus, unlike the arguable contradiction between INA
5 The Notice to Appear originally charged Dilshad with having entered without being
admitted. Her testimony at the hearing later established that she actually was inspected
and admitted, albeit under a false name. During the hearing, the U.S. Department of
Homeland Security called to the IJ’s attention that the charge of being present without
inspection is incorrect, but did not seek to amend the Notice to Appear, and Dilshad does not
dispute that she nevertheless is removable. Her eligibility for relief under INA § 245(i) can
no longer rely on INA § 245(i)(1)(A)(i), which applies to aliens who entered without inspection
and was the subpart the BIA analyzed in Briones. Rather, her eligibility evaluation is
therefore conducted under INA § 245(i)(1)(A)(ii), for being “within one of the classes
enumerated in subsection (c) of this section.” 8 U.S.C. § 1255(i)(1)(A)(ii). Section 245(c), in
turn, contains subclause (7), which lists “any alien who seeks adjustment of status to that of
an immigrant under section [203(b)] and is not in lawful immigrant status.” 8 U.S.C. §
1255(c). Section 203(b) of the INA (codified at 8 U.S.C. § 1153(b)) provides for employment-
based visas and is the relevant section for Dilshad’s INA § 245(i) application to adjust status
through her employer.
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§ 245(i) and INA § 212(a)(6)(A)(i), no absurdity or contradiction results from
applying INA § 212(a)(6)(C)(i) as written: that an alien, like Dilshad, who is in
unlawful status and seeks to adjust to lawful status through an employment
visa is ineligible to do so if she is inadmissible for the use of fraudulent
documents. See Briones, 24 I & N Dec. at 365.
In sum, we see no error in the BIA’s determination that Dilshad is
statutorily ineligible for adjustment of status under INA § 245(i) because she
is inadmissible under INA § 212(a)(6)(C)(i) for fraudulent entry. Naseem’s
derivative application thus was also properly denied. We deny the petition for
review.
IV.
Petitioners next ask this Court to review the BIA’s discretionary decision
denying cancellation of removal. Petitioners challenge on appeal only the
determination that they failed to demonstrate “exceptional and extremely
unusual hardship” under INA § 240A(b)(1)(D) to their United States citizen
son, a factual question. 8 U.S.C. § 1229b(b)(1)(D). We lack jurisdiction to
review any judgment regarding the granting or denying of discretionary relief
in the form of cancellation of removal, unless the appeal involves constitutional
questions or questions of law. See 8 U.S.C. § 1252(a)(2)(B)(i), (a)(2)(D). As this
appeal involves neither, we dismiss it for lack of jurisdiction. Petitioners allege
no constitutionally protected liberty or property interest in obtaining
discretionary relief, and we have determined that illegal aliens do not possess
a constitutionally protected right to adjustment of status or eligible
discretionary relief. See, e.g., Manzano-Garcia v. Gonzales, 413 F.3d 462, 471
(5th Cir. 2005); Assaad v. Ashcroft, 378 F.3d 471, 475 (5th Cir. 2004); see also
Altamirano-Lopez v. Gonzales, 435 F.3d 547, 550 (5th Cir. 2006). Petitioners’
claim that the IJ did not properly take into account all the hardship factors
merely asks this Court to replace the IJ’s evaluation of the evidence with a new
6
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outcome, which falls squarely within the jurisdictional bar of 8 U.S.C.
§ 1252(a)(2)(B). See, e.g., Sung v. Keisler, 505 F.3d 372, 377 (5th Cir. 2007)
(“Mr. Sung’s cancellation of removal under § 1229b(b) does not involve a
constitutional claim or a question of law; therefore, this court does not have
jurisdiction to review [his claim that the IJ did not consider all of the relevant
factors in determining his children would not suffer the requisite hardship].”).
V.
Finally, Petitioners ask this Court to review the BIA’s discretionary
decision denying voluntary departure. But Petitioners again overlook the
same jurisdictional bar to this Court’s consideration of their factual claim that
the BIA abused its discretion in denying their request for voluntary departure.
Under the plain language of 8 U.S.C. § 1252(a)(2)(B)(i), which addresses
“[d]enials of discretionary relief,” “no court shall have jurisdiction to review . . .
any judgment relating to the granting of relief under . . . [§] 1229(c),” unless it
involves “constitutional claims or questions of law,” 8 U.S.C. § 1252(a)(2)(D).
Petitioners sought voluntary departure under 8 U.S.C. § 1229c(b) in lieu of
removal if their applications for relief from removal were denied. The IJ denied
this relief because the petitioners did not have valid passports and “[had not]
made diligent efforts to secure the necessary travel documents.” The BIA
affirmed, noting that in the two years since the IJ’s decision, Petitioners made
no effort to show they had renewed the expired passports. Petitioners’
challenge—that the BIA erred in “disregarding their credible testimony and
equities, and refusing to grant them some time to obtain new valid
passports”—presents no constitutional question or question of law, and we lack
jurisdiction to consider it. 6
6 Petitioners’ appear to raise one legal issue, but it is inapposite and we lack
jurisdiction to consider it because it was not exhausted. Petitioners cite in passing a portion
of a regulation, 8 C.F.R. 1240.26(b)(3), that addresses applicants eligible for up to 120 days
pre-conclusion voluntary departure, not the post-conclusion voluntary departure sought here.
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Accordingly, we DENY the petition for review as to the argument under
INA § 245(i) and DISMISS the remainder of the petition for want of
jurisdiction.
Petitioners also did not raise this issue in their brief to the BIA and thus failed to exhaust it,
barring our review. Ramos-Torres v. Holder, 637 F.3d 544, 547 (5th Cir. 2011).
8