Bucknor v. Attorney General of the United States

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
7-10-2007
Bucknor v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-1624
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-1624
DEVON A. BUCKNOR,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
On Petition for Review of an Order of the
United States Department of Justice
Board of Immigration Appeals
BIA No. A72-784-868
(Honorable Eugene Pugliese, Immigration Judge)
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 13, 2007
Before: FUENTES, VAN ANTWERPEN, and SILER,* Circuit Judges.
(Filed July 10, 2007)
OPINION OF THE COURT
_____________
* The Honorable Eugene E. Siler, Jr., Senior United States Circuit Judge for the Sixth
Circuit, sitting by designation.
SILER, Circuit Judge.
Petitioner Devon A. Bucknor, a native and citizen of Jamaica, seeks review of the
January 26, 2006, Order of the Board of Immigration Appeals (“BIA”) that affirmed the
Immigration Judge’s (“IJ”) denial of Bucknor’s request for waiver of removal. We have
jurisdiction to review the petition pursuant to 8 U.S.C. § 1252(a), and for the reasons set
forth below, we will deny the petition.
I.
Because we write solely for the benefit of the parties, we will set forth only those
facts necessary to our analysis.
Bucknor entered the United States at an unknown place and time. On April 25,
2005, the government commenced removal proceedings against Bucknor on two grounds:
1) as an alien present in the United States without being admitted or paroled, 8 U.S.C. §
1182(a)(6)(A)(i); and 2) as an alien convicted of a crime involving moral turpitude, 8
U.S.C. § 1182(a)(2)(A)(i)(I).1 Bucknor admitted alienage, contested removal and sought
a waiver of removal under 8 U.S.C. § 1182(h).2
1
On January 15, 2003, Bucknor was convicted of embezzling things of value of the
United States worth $165,286.63, 18 U.S.C. § 641. Bucknor does not contest the
conviction or that it constitutes a crime of “moral turpitude.”
2
Section 1182(h) provides, in relevant part:
The Attorney General may, in his discretion, waive the application of
subparagraphs . . . (a)(2) of this section . . . if . . . in the case of an
immigrant who is the spouse, parent, son, or daughter of a citizen of the
United States or an alien lawfully admitted for permanent residence, if it is
established to the satisfaction of the Attorney General that the alien’s denial
2
During the 2005 hearing, the IJ questioned whether Bucknor’s immigration status
could be adjusted even if Bucknor were granted a waiver of removal for the
embezzlement conviction. The IJ pointed out that Bucknor was still removable under §
1182(a)(6)(A)(i), which could not be waived under 8 U.S.C. § 1182(h). Bucknor
thereafter indicated that he had previously filed an application for adjustment of his
illegal status under the Legal Immigration Fairness and Equity (“LIFE”) Act, Pub. L. 106-
553, 114 Stat 2762 (2000), which was pending before United States Citizenship and
Immigration Services (“CIS”), in the Department of Homeland Security (“DHS”), at the
time of the hearing.3 Therefore, Bucknor averred that the IJ need only address the waiver
of removal issue. Although the status of Bucknor’s LIFE Act application before CIS was
uncertain at the time of the hearing, the IJ proceeded to address the merits of Bucknor’s
claim.
The IJ ruled that Bucknor’s application for adjustment of status under the LIFE
of admission would result in extreme hardship to the United States citizen
or lawfully resident spouse, parent, son, or daughter of such alien.
8 U.S.C. § 1182(h).
3
Under the LIFE Act, an eligible alien may adjust status to become a lawful
permanent resident if the following conditions have been met: 1) an application was filed
between June 1, 2001 and June 4, 2003; 2) the alien entered the United States before
January 1, 1982 and resided here continuously through May 4, 1988; 3) the alien was
continuously physically present in the United States between November 6, 1986 and May
4, 1988; and 4) the alien is not inadmissable under any of the provisions of the INA §
212(a), including not having been convicted of a felony. See 8 C.F.R. § 245a.11. An
alien who is prima facie qualified for adjustment of status under the LIFE Act may
request that any deportation or removal proceeding before the Immigration Court or BIA
be administratively closed or continued in order to allow the alien to pursue the LIFE Act
application. 8 C.F.R. § 245.a12(b)(1).
3
Act was of no utility to his § 1182(h) waiver application. This was because Bucknor’s
felony conviction for embezzlement rendered him ineligible for LIFE Act relief. See 8
U.S.C. § 1101(a)(43)(M)(i) (classifying fraud or deceit in which loss to the victim
exceeds $10,000 as an aggravated felony under the INA). Therefore, the IJ did not
consider Bucknor’s § 1182(h) waiver application and ordered Bucknor removed.
In 2006, the BIA dismissed Bucknor’s appeal. It stated that it would not consider
Bucknor’s request for remand as “a waiver will generally only be granted where the grant
would effect a complete disposition of the case.” Bucknor remained removable under §
1182(a)(6)(A)(i) even if the § 1182(h) waiver were granted for removal based on his
embezzlement conviction. Further, the BIA noted that Bucknor’s only possible relief for
removal based upon the § 1182(a)(6)(A)(i) ground was the LIFE Act, for which he was
ineligible. As a final matter, the BIA noted that to the extent the IJ exceeded his authority
by preterminating Bucknor’s LIFE Act application, any error was harmless as DHS was
not bound by the IJ’s decision on this matter.
II.
We review the BIA’s legal conclusions de novo, giving appropriate deference to
the agency’s interpretation of the underlying statute. Zheng v. Gonzales, 422 F.3d 98,
108 (3d Cir. 2005). Because the BIA adopted the IJ’s findings and discussed some of the
bases for the IJ’s decision, both the BIA’s and the IJ’s decisions are before us for review.
He Chun Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004).
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III.
Bucknor contends that the IJ erred by not considering his § 1182(h) request for
waiver on the merits. However, as previously determined by the IJ and the BIA, §
1182(h) was of no use to Bucknor because even if removal for the embezzlement
conviction had been waived, Bucknor remained removable under § 1182(a)(6)(A)(i).
Therefore, the BIA’s decision not to remand the waiver issue to the IJ was correct
because Bucknor would have been removed regardless of the waiver. See, e.g., Matter of
Luis-Rodriguez, 22 I. & N. Dec. 747, 753 (BIA 1999) (“[T]his Board has reserved the
discretion to dismiss appeals and deny motions as moot as a discretionary matter of
prudence. . . . where a controversy has become so attenuated or where . . . an action by
one of the parties has deprived an appeal or motion of practical significance.”).
Bucknor also contends that the BIA’s prejudgment of the LIFE Act claim created
an inappropriate legal standard because adjustment of status under the LIFE Act is left to
the exclusive realm of DHS. However, where a petitioner cannot establish prima facie
eligibility for adjustment of status under the LIFE Act, the IJ is under no duty to grant a
continuance of removal proceedings pending resolution of the LIFE Act application. See
Khan v. Attorney General, 448 F.3d 226, 234-35 (3d Cir. 2006). Bucknor’s
embezzlement conviction clearly rendered him unable to make out a prima facie case for
LIFE Act relief. See 8 C.F.R. § 245a.18 (providing that felony convictions for crimes
involving moral turpitude render an applicant ineligible under the LIFE Act and may not
5
be waived). Accordingly, the BIA did not apply an incorrect legal standard in finding
Bucknor ineligible for adjustment of status.
Bucknor finally contends that had the IJ adjudicated his waiver request, his felony
embezzlement conviction would have no longer rendered him ineligible for adjustment of
status under the LIFE Act. However, waiver for purposes of § 1182 “does not preclude
the INS or courts from relying on the underlying offense to bar other forms of
immigration relief or benefits.” Chan v. Ganter, 464 F.3d 289, 295 (3d Cir. 2006).
Therefore, Bucknor’s contention does not persuade us that the BIA’s decision was
erroneous.
III.
We have considered all other arguments made by the parties on appeal and find
that no further discussion is necessary. For the foregoing reasons, we conclude that the
BIA did not apply an improper legal standard, and we will deny the petition for review.
6