Thorn v. Gonzales

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
September 13, 2006
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
ER IK A HELV IG TH O RN ,
Petitioner,
v. No. 05-9578
(No. A77-782-125)
ALBERTO R. GONZALES, Attorney (Petition for Review)
General,
Respondent.
OR D ER AND JUDGM ENT *
Before TA CH A, Chief Judge, O’BRIEN, and M cCO NNELL, Circuit Judges.
Petitioner Erika Helvig Thorn seeks review of the final order of removal
requiring her to return to Hungary. She asserts that the agency decision is based
on legal error and therefore this court has jurisdiction under the REAL ID Act,
8 U.S.C. § 1252(a)(2)(D ) (providing that courts of appeals retain jurisdiction to
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
review constitutional claims and questions of law). W e conclude that the ruling
presented for review was a discretionary decision and we lack subject-matter
jurisdiction to review it. Id. § 1252(a)(2)(B)(i). Consequently, the petition for
review is dismissed.
Background
M s. Thorn is a native and citizen of Hungary who entered the United States
in M arch 1998 on a visitor visa. In February 1999, she married W illiam Thorn, a
United States citizen, and filed for divorce in July 2001. M r. Thorn committed
suicide in December 2001, before the divorce was finalized. In February 2003,
M s. Thorn filed an I-360 immigrant visa petition, see 8 U.S.C. § 1151(b)(2)(A)(i),
which was approved in September 2003. She then filed the petition that is the
subject of this appeal: an I-485 application for adjustment of status to lawful
permanent resident, pursuant to 8 U.S.C. § 1255(a), based on her status as a
surviving spouse of a citizen. An Immigration Judge (IJ) denied the application,
and the Board of Immigration Appeals (BIA ) affirmed without opinion.
M s. Thorn then filed a petition for review with this court. 1
The IJ held a hearing at which M s. Thorn testified. In addition,
M r. Thorn’s twin brother testified via telephone. The brother stated that he had
overheard M r. Thorn discuss receiving payment from M s. Thorn to help her with
1
M s. Thorn apparently has not filed a petition to review the BIA’s denial of
her subsequent application to reopen the agency proceedings.
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her immigration procedures. Admin. R. at 107, 180. The brother also refuted
M s. Thorn’s testimony that M r. Thorn had used alcohol and illicit drugs and was
often unemployed. The IJ found the brother more credible than M s. Thorn. He
concluded that the marriage was a sham, both at the time of the marriage and at
the time of M r. Thorn’s death. Even though the IJ indicated that the I-360
application may have been approved in error, he recognized that he could not
reevaluate the I-360 petition or rescind its approval. Rather, he declined to grant
M s. Thorn discretionary relief under § 1255 based on his findings that the
marriage was a sham and was not viable at the time of M r. Thorn’s death.
Accordingly, the IJ denied M s. Thorn’s application “in the exercise of
discretion.” Id. at 110.
The BIA issued an order affirming the IJ’s decision without opinion,
pursuant to 8 C.F.R. § 1003.1(e)(4). Therefore, the IJ’s decision is “the final
substantive order for our review.” Uanreroro v. Gonzales, 443 F.3d 1197, 1203
(10th Cir. 2006).
Discussion
“W e have jurisdiction to determine our jurisdiction.” Schroeck v.
Gonzales, 429 F.3d 947, 950 (10th Cir. 2005). The decision to grant or deny an
adjustment of status pursuant to § 1255 is a discretionary one. Che-Li Shen v.
INS, 749 F.2d 1469, 1472 (10th Cir. 1984). By its plain language,
§ 1252(a)(2)(B)(i) bars judicial review of such a discretionary decision.
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Schroeck, 429 F.3d at 950. Therefore, we are without jurisdiction to review
M s. Thorn’s challenge to the IJ’s denial of discretionary relief unless she has
presented a constitutional claim or a question of law under the REAL ID Act.
§ 1252(a)(2)(D ); Ballesteros v. Ashcroft, 452 F.3d 1153, 1156-57 (10th Cir.
2006).
M s. Thorn asserts that the IJ committed the following legal errors: (1) in
effect, he impermissibly rescinded her previously-granted I-360 petition, thereby
contravening 8 U.S.C. § 1154(a)(1)(A)(i) & (ii), (2) he evaluated the bona fides of
the marriage at the time of M r. Thorn’s death, rather than at the inception of the
marriage, (3) he found M r. Thorn’s brother credible and M s. Thorn not credible;
and (4) he failed to resolve matters of doubt in M s. Thorn’s favor, which resulted
in a due process violation.
M s. Thorn does not claim that her case presents a constitutional issue,
despite her brief mention of a due process violation. Instead, she maintains that
this court has jurisdiction to decide the legal issue of whether the proper
application of settled law should have resulted in a favorable discretionary ruling.
This argument does not invoke our jurisdiction under the REAL ID Act, however,
because “the REAL ID Act grants us jurisdiction to review [only] a narrow
category of issues regarding statutory construction.” Diallo v. Gonzales, 447 F.3d
1274, 1282 (10th Cir. 2006) (quotation omitted). M oreover, even if M s. Thorn’s
argument that the IJ improperly substituted his judgment on her I-360 petition
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could be construed as an issue of statutory construction, we still lack jurisdiction
because the IJ’s ultimate ground for denying relief was indisputably discretionary.
Cf. Ekasinta v. Gonzales, 415 F.3d 1188, 1191 (10th Cir. 2005) (“[I]f there are
two alternative grounds for a decision and we lack jurisdiction to review one, it
would be beyond our A rticle III judicial power to review the other.”).
Respondent has filed a motion to dismiss for lack of jurisdiction. The
motion is granted. The petition for review is DISM ISSED.
Entered for the Court
Terrence L. O’Brien
Circuit Judge
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