Robert Berlus v. Secretary Dept Homeland

NOT PRECEDENTIAL
UNITED STATE COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 10-1008
_____________
ROBERT BERLUS,
Appellant
v.
JANET NAPOLITANO, Secretary of the Department of Homeland Security; KAREN
FITZGERALD, Field Officer Director, Philadelphia Office of Citizenship and
Immigration; THOMAS DECKER, Field Officer Director, Philadelphia Office of
Immigration and Customs Enforcement; JOHN GRISCOM, Acting Chief, Administrative
Appeals Office of Citizenship and Immigration Services
_______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 09-cv-3050)
District Judge: Hon. Eduardo C. Robreno
_______________
Submitted Under Third Circuit LAR 34.1(a)
September 25, 2012
Before: MCKEE, Chief Judge, JORDAN, and VANASKIE Circuit Judges.
(Filed: October 26, 2012)
_______________
OPINION OF THE COURT
_______________
JORDAN, Circuit Judge.
Robert Berlus, a native and citizen of Haiti, appeals the judgment of the United
States District Court for the Eastern District of Pennsylvania dismissing for lack of
jurisdiction his complaint that he was wrongly denied a waiver of inadmissibility. For
the following reasons, we will affirm.
I. Background
Berlus married a United States citizen and lived in the United States as a legal
permanent resident in the 1980s. In 1986, however, he was convicted of immigration
fraud, in violation of 18 U.S.C. §§ 371, 1546 and 8 U.S.C. § 1321. 1 As a result of that
conviction, he was deported on November 25, 1992. Berlus’s wife applied for a new visa
on his behalf in 1996, but the application was denied.
After he left the United States, Berlus worked as a port inspector in Haiti. In
2002, he began to assist the United States Drug Enforcement Agency (“DEA”) in various
investigations. His assistance contributed to the capture of several high-profile drug
dealers in 2004. During the period of his cooperation, Berlus entered the United States
several times on Public Interest Parole (“PIP”), 2 and most recently in December 2005.
1
Berlus was convicted for his role in an immigration fraud conspiracy.
Specifically, he served as an interpreter in the presentation of a fraudulent marriage to the
United States Immigration and Naturalization Service.
2
Congress has authorized the temporary admission of aliens through PIP “for
urgent humanitarian reasons or significant public benefit.” 8 U.S.C. § 1182(d)(5)(A).
PIP, however, “shall not be regarded as an admission of the alien,” and once the purposes
of the parole have been satisfied, the alien is returned to where he came from and is
“dealt with in the same manner as that of any other applicant for admission to the United
States.” Id.2
In 2006, wishing to remain in the United States, Berlus applied for an adjustment
of status with the United States Citizenship and Immigration Services (“USCIS”).
Because Berlus had a prior conviction for immigration fraud, 3 and because Berlus tested
positive for Human Immunodeficiency Virus (“HIV”) during a physical exam, 4 he was
not eligible for an adjustment of status unless he received a waiver of inadmissibility.
Accordingly, along with his application for an adjustment of status, Berlus applied for a
waiver of inadmissibility. USCIS denied Berlus’s request for a waiver and his
application for adjustment of status. 5 Berlus filed an appeal with the Administrative
Appeals Office (“AAO”) of USCIS. While that appeal was pending, Berlus was served
with a Notice to Appear, triggering the start of his removal proceedings. 6 Following
receipt of the Notice, the AAO dismissed Berlus’s appeal.
In July 2009, Berlus commenced the present action in the District Court,
challenging the USCIS’s denial of his request for a waiver of inadmissibility. Berlus
specifically invoked the Administrative Procedure Act (“APA”) before the District Court,
3
Crimes of moral turpitude are grounds for inadmissibility pursuant to 8 U.S.C.
§ 1182(a)(2)(A)(i)(I). Berlus does not dispute that his role in procuring a visa by false
claims amounts to such a crime.
4
Aliens carrying a communicable disease of public health significance are
inadmissible pursuant to 8 U.S.C. § 1182(a)(1)(A). HIV was previously listed as such a
disease. 42 C.F.R. § 34.2(b)(6) (2008).
5
Federal regulations vest USCIS with the authority to adjudicate such
applications. See 8 C.F.R. § 212.7 (providing that “[a]ny alien who is inadmissible under
[8 U.S.C. § 1182(h)] who is eligible for a waiver of such inadmissibility may file [an
application for waiver of inadmissibility]” and that “USCIS will provide a written
decision” with respect to such an application).
6
Berlus’s removal proceedings are still pending.
3
arguing that it provided the Court with jurisdiction to hear his appeal. The defendants
moved to dismiss Berlus’s action for lack of jurisdiction, and the District Court granted
the motion. 7 Berlus filed this timely appeal.
II. Discussion 8
Berlus argues that the District Court erred in determining that it did not have
jurisdiction to hear his claim. He specifically alleges that the administrative proceedings
in which his waiver of inadmissibility request was denied did not comport with
constitutional due process requirements and that both the District Court and this Court
have jurisdiction to hear such a challenge.
The Immigration and Nationality Act (“INA”) provides that crimes of moral
turpitude and contagious infections are bases for denial of an adjustment of status. 8
U.S.C. § 1182(a). The INA also provides, however, that the Attorney General may waive
those bases for inadmissibility to allow an applicant to obtain adjustment of status under
§ 1182(h), “if the alien is a spouse, parent, or child of a United States citizen or
permanent resident alien and can show that denial of admission would cause extreme
hardship to the citizen or permanent resident alien.” De Leon-Reynoso v. Ashcroft, 293
F.3d 633, 637 (3d Cir. 2002). The authority to waive one or more grounds for
7
At the time of the District Court’s decision, Berlus’s PIP had not been revoked.
8
We review the District Court’s determination that it lacked jurisdiction de novo.
Metropolitan Life Ins. Co. v. Price, 501 F.3d 271, 275 (3d Cir. 2007). Although we do
not have jurisdiction to review the decision to grant or deny a waiver pursuant to 8 U.S.C.
§ 1182(h), we have jurisdiction to review constitutional or purely legal claims regarding
§ 1182(h). Cabral v. Holder, 632 F.3d 886, 889 (5th Cir. 2011). We review de novo any
legal or constitutional arguments made by Berlus regarding § 1182(h). De Leon-Reynoso
v. Ashcroft, 293 F.3d 633, 635 (3d Cir. 2002).
4
inadmissibility is vested solely in the Attorney General and “no court shall have
jurisdiction to review” a decision to deny such a request. 8 U.S.C. § 1252(a)(2)(B). This
Court can, however, review constitutional claims or pure questions of law associated with
the denial of a request for waiver of inadmissibility. 8 U.S.C. § 1252(a)(2)(D); see
Martinez v. Mukasey, 519 F.3d 532, 541 (5th Cir. 2008) (stating that “[a]lthough we are
without jurisdiction to review a decision of the Attorney General to grant or deny a
[§ 1182(h)] waiver, our court has jurisdiction … to review … question[s] of law”
regarding § 1182) (citation and internal quotation marks omitted).
Berlus argues that the District Court had jurisdiction to review his claims under
the Administrative Procedure Act (“APA”), which permits judicial review for a “person
suffering legal wrong because of agency action, or [who is] adversely affected or
aggrieved by agency action … .” 5 U.S.C. § 702. Review is only permitted, however,
where the “agency action is [not] committed to agency discretion by law,” and where no
“statutes preclude judicial review.” Id. at § 701(a). Section 1182(h) of title 8 commits
the decision to grant or deny a waiver of inadmissibility to the Attorney General and
§ 1252(a)(2)(B) of that title precludes judicial review of such determinations. See De
Kucana v. Holder, 130 S. Ct. 827, 836 (2010) (“[Section] 1252(a)(2)(B) … places within
the no-judicial-review category any judgment regarding the granting of relief under
section 1182(h) … .” (citation and internal quotation marks omitted)); Leon-Reynoso, 293
F.3d at 637 (“Under § 1182(h), the Attorney General in his discretion may waive an
5
alien’s inadmissibility for a crime of moral turpitude … .”). 9 Thus, the APA cannot
provide a basis for jurisdiction over Berlus’s claims.
Berlus also argues, however, that § 1252 provides a basis for judicial review of his
claims. 10 He submits that, by its plain language, § 1252’s judicial review preclusions
apply to removal orders and not to USCIS’s decision to deny a waiver of inadmissibility,
but § 1252(a)(2)(B) expressly strips jurisdiction concerning § 1182(h) waiver
determinations, “regardless of whether the judgment, decision, or action is made in
removal proceedings.” 8 U.S.C. § 1252(a)(2)(B). His bald assertions about jurisdiction
cannot overcome the statute’s explicit instruction that determinations made pursuant to
§ 1182(h) are not subject to judicial review. 11
Thus the District Court properly determined that it lacked jurisdiction over
Berlus’s claims and we likewise lack jurisdiction over his appeal. 12
9
That discretion has been delegated to USCIS. See supra note 5.
10
While Berlus repeatedly refers to 8 U.S.C. § 1152 as the basis for his
arguments, he actually quotes from § 1252. Section 1152 is entitled “[n]umerical
limitations on individual foreign states” and is inapplicable to his arguments.
11
Berlus complains that the Immigration Judge presiding over his removal
proceedings has also determined that he does not have jurisdiction to review claims
related to the denial of his request for a waiver of inadmissibility. Those complaints,
however, are no answer to Congress’s intent to vest sole discretion over the decision to
grant or deny a waiver of inadmissibility with USCIS.
12
Berlus attempts to cast his challenge to USCIS’s exercise of discretion as a due
process claim, but the substance of his argument is a challenge to the agency’s
discretionary decision to deny his waiver of inadmissibility. We lack jurisdiction to
review such a claim. See Mejia v. Gonzales, 499 F.3d 991, 999 (9th Cir. 2007) (holding
that there is no jurisdiction to review a claim that the denial of a waiver of inadmissibility
failed to balance certain mitigating factors, since such an argument did not raise “a
cognizable legal or constitutional question,” and, as a result, § 1252(a)(2)(B) precluded
judicial review).
6
III. Conclusion
For the foregoing reasons, we will affirm the order of the District Court.
7