Guillermo Borges v. U.S. Attorney General

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-15301 ELEVENTH CIRCUIT
JUNE 17, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
Agency No. A022-799-757
GUILLERMO BORGES,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(June 17, 2010)
Before BARKETT, HULL and WILSON, Circuit Judges.
PER CURIAM:
Guillermo Borges, a native and citizen of Cuba, through counsel, petitions
for review of the Board of Immigration Appeals’s (“BIA”) decision, vacating the
immigration judge’s (“IJ”) order for lack of jurisdiction. The BIA found that the IJ
did not have jurisdiction because Borges was an arriving alien1 seeking adjustment
of status under the Cuban Adjustment Act of November 2, 1966, Pub. L. No. 89-
732, 80 Stat. 1161 (“CAA”). We find that the BIA properly vacated the IJ’s
decision for lack of jurisdiction and affirm.
I. BACKGROUND
Borges arrived in the United States on May 4, 1980 from Cuba and
requested status as a Cuban refugee. He did not possess any valid immigrant or
entry documents and he never petitioned to adjust his status to that of a permanent
lawful resident. On November 7, 1984, Borges was convicted of grand theft and
on February 26, 1986, he was convicted of petit theft.
Over twenty years later the Department of Homeland Security initiated
removal proceedings against Borges, charging him under 8 U.S.C. §
1182(a)(2)(A)(i)(I) as an inadmissable alien due to his convictions for crimes of
moral turpitude. Appearing before the IJ, Borges filed for waiver of
1
“The term arriving alien means an applicant for admission coming or attempting to
come into the United States at a port-of-entry, or an alien seeking transit through the United
States at a port-of-entry, or an alien interdicted in international or United States waters and
brought into the United States by any means, whether or not to a designated port-of-entry, and
regardless of the means of transport.” 8 C.F.R. § 1001.1(q).
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inadmissability under 8 U.S.C. § 1182(h), as well as an application for adjustment
of status under the CAA. The IJ found Borges removable under 8 U.S.C. §
1182(a)(2)(A)(i)(I) and denied his application for adjustment of status because his
crimes of moral turpitude rendered him ineligible. Further, the IJ found that he did
not qualify for waiver of inadmissability because he did not have family members
who would suffer extreme hardship upon his removal and the fifteen-year waiver
did not apply to crimes of moral turpitude.
Borges appealed to the BIA. The BIA found that pursuant to a previous BIA
ruling in Matter of Martinez-Montalvo, 24 I. & N. Dec. 778 (BIA 2009), the IJ did
not have jurisdiction over Borges’s application for adjustment of status or his
waiver of inadmissability. Therefore, the BIA did not reach the substance of the
IJ’s order regarding Borges’s request for a waiver of inadmissability. The BIA
vacated the IJ’s decision and ordered that Borges be removed to Cuba. Borges
appeals the decision of the BIA.
II. JURISDICTION
The question of whether the IJ had jurisdiction over Borges’s application for
adjustment of status is a question of law; thus, this court has jurisdiction pursuant
to 8 U.S.C. § 1252(a)(2)(D). We have jurisdiction to review only the decisions of
the BIA; the IJ’s order is reviewed only to the extent that it is adopted by the BIA.
Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). In the present case,
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the BIA vacated the IJ’s order for lack of jurisdiction, so we only review the BIA’s
ruling concerning the jurisdiction of the IJ.
III. STANDARD OF REVIEW
We review the BIA’s legal determinations de novo. See Castillo-Arias v.
U.S. Att’y Gen., 446 F.3d 1190, 1195 (11th Cir. 2006). However, our review of the
BIA’s interpretation of the statutes it administers “is informed by the principle of
deference articulated in Chevron, U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984).” Id.(quotation omitted). Thus, we defer to the BIA’s interpretation of the regulations
governing its decision “if the interpretation . . . is reasonable and does not
contradict the clear intent of Congress.” Silva v. U.S. Att’y Gen., 448 F.3d 1229,
1243 (11th Cir. 2006) (citation omitted).
IV. DISCUSSION
Pursuant to 8 C.F.R. § 245.2(a)(1), the United States Citizenship and
Immigration Services (“USCIS”) “has jurisdiction to adjudicate an application for
adjustment of status filed by any alien, unless the immigration judge has
jurisdiction to adjudicate the application under 8 C.F.R. 1245.2(a)(1).” Pursuant to
8 C.F.R. § 1245.2(a)(1)(i), “[i]n the case of any alien who has been placed in
deportation proceedings or in removal proceedings (other than as an arriving
alien), the immigration judge hearing the proceeding has exclusive jurisdiction to
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adjudicate any application for adjustment of status the alien may file.” However,
the IJ may adjudicate an application for adjustment of status from an arriving alien
if the alien meets four specific conditions. 8 C.F.R. § 1245(a)(1)(ii)(A)–(D).
Borges does not qualify for review by the IJ under these conditions.
We have previously reviewed 8 C.F.R. §§ 245.2(a)(1) and 1245.2(a)(1)
under the standards set out in Chevron, 467 U.S. at 842–45, 104 S. Ct. at 2781–83,
and found that the regulations are valid interpretations of 8 U.S.C. § 1255(a).
Scheerer v. U.S. Att’y Gen., 513 F.3d 1244, 1251–52 (11th Cir. 2008).2 Further,
the BIA held in Matter of Martinez-Montalvo, 24 I. & N. Dec. 778, 783 (BIA
2009), that 8 C.F.R. §§ 245.2(a)(1) and 1245.2(a)(1) effectively divest the IJ of
jurisdiction over arriving aliens’ applications for adjustment of status unless they
can meet the conditions of 8 C.F.R. § 1245.2(a)(1)(ii).
“To establish due process violations in removal proceedings, aliens must
show that they were deprived of liberty without due process of law, and that the
asserted errors caused them substantial prejudice.” Lonyem v. U.S. Att’y Gen., 352
F.3d 1338, 1341–42 (11th Cir. 2003) (per curiam). Adjustment of an alien’s status
2
“[T]he amended 8 C.F.R. § 1245.2(a)(1) reflects a reasonable construction of the
statute’s delegation of authority to the Attorney General,” given that “the regulation appears
fully consistent with the broader statutory framework governing adjustment applications, in
which Congress has divided adjudication functions between [the Department of Justice] and [the
Department of Homeland Security] and has authorized those departments to fill the gap as to
specific application procedures.” Scheerer, 513 F.3d at 1251–52. Thus, we held that “the
Attorney General did not exceed his authority in promulgating the amended 8 C.F.R.
§ 1245.2(a)(1)” and 8 C.F.R. § 1245.2(a)(1) is not invalid. Id. at 1252.
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is a discretionary form of relief. 8 U.S.C. § 1255(a). Likewise, waiver of
inadmissibility under 8 U.S.C. § 1182(h) is a purely discretionary form of relief.
Garcia v. U.S. Att’y Gen., 329 F.3d 1217, 1224 (11th Cir. 2003). Borges “cannot
prevail on his due process claim because he has no constitutionally protected
interest in purely discretionary forms of relief.” Scheerer, 513 F.3d at 1253.
Borges is an arriving alien and does not meet the conditions of 8 C.F.R.
§ 1245.2(a)(1)(ii). Therefore, the BIA properly ruled that the IJ did not have
jurisdiction over his application for adjustment of status. Finally, because the IJ
lacked jurisdiction over Borges’s application for adjustment of status and
application for a waiver of inadmissibility, the BIA did not violate Borges’s due
process rights by not considering the merits of the IJ’s decision. Accordingly,
upon review of the record and consideration of the parties’ briefs, we deny
Borges’s petition for review.
PETITION DENIED.
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