Mohammad Furqan v. Loretta Lynch

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1682
MOHAMMAD FURQAN,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: December 17, 2015 Decided: December 21, 2015
Before WILKINSON, SHEDD, and DIAZ, Circuit Judges.
Petition dismissed in part, denied in part by unpublished per
curiam opinion.
Marc Seguinót, SEGUINÓT & ASSOCIATES, PC, Fairfax, Virginia, for
Petitioner. Benjamin C. Mizer, Principal Deputy Assistant
Attorney General, Anthony C. Payne, Assistant Director,
Jennifer Paisner Williams, Senior Litigation Counsel, Office of
Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Mohammad Furqan, a native and citizen of Pakistan,
petitions for review of an order of the Board of Immigration
Appeals (Board) dismissing his appeal from the immigration
judge’s (IJ) decision denying his application for a waiver of
inadmissibility and denying the motion to remand. We dismiss in
part and deny in part the petition for review.
Any alien who “willfully misrepresent[s] a material fact,
seeks to procure (or has sought to procure or has procured) a
visa, other documentation, or admission into the United States
or other benefit . . . is inadmissible.” 8 U.S.C.
§ 1182(a)(6)(C)(i) (2012). An alien who is inadmissible is
ineligible for adjustment of status. 8 U.S.C. § 1255(a)(2012).
An inadmissible alien may be eligible for a waiver of
inadmissibility under 8 U.S.C. § 1182(i)(1) (2012), if he shows
that his removal would be an extreme hardship to a qualifying
relative. “No court shall have jurisdiction to review a
decision or action of the Attorney General regarding a waiver
under” this section. 8 U.S.C. § 1182(i)(2) (2012); see also 8
U.S.C. § 1252(a)(2)(B)(i) (2012) (“no court shall have
jurisdiction to review [] any judgment regarding the granting of
relief under [§ 1182(i)]”). The court retains jurisdiction to
consider constitutional claims or questions of law. 8 U.S.C.
§ 1252(a)(2)(D) (2012).
2
“[T]he jurisdictional bar of 8 U.S.C. § 1252(a)(2)(B)
applies where the basis for the discretionary decision [to deny
a motion to remand] addresses the merits of an enumerated
provision.” Sorcia v. Holder, 643 F.3d 117, 126 (4th Cir. 2011)
(internal quotation marks omitted). Here, the Board concluded
that a remand was not warranted because Furqan did not submit
sufficient evidence to establish prima facie eligibility for a
waiver of inadmissibility. The statute authorizing a waiver of
inadmissibility is one of the enumerated provisions under
§ 1252(a)(2)(B). Because the Board’s decision denying Furqan’s
motion to remand was based on his eligibility for the waiver, we
do not have jurisdiction to review the decision except for
constitutional claims and questions of law. Because Furqan does
not raise a constitutional claim or a question of law concerning
the denial of the motion to remand, we dismiss in part the
petition for review.
The Attorney General has the burden of showing by clear and
convincing evidence that Furqan willfully misrepresented a
material fact seeking to procure an immigration benefit. Xing
Yang Yang v. Holder, 770 F.3d 294, 303 (4th Cir. 2014). “[A]
misrepresentation is willful if it was deliberate and
voluntary.” Id. A material misrepresentation “must be of the
sort that would affect the ultimate immigration decision.” Id.
at 305. We review a material misrepresentation finding for
3
substantial evidence. Id. at 304. After reviewing the record
and considering Furqan’s arguments, we conclude that substantial
evidence supports the finding that Furqan willfully made a
material misrepresentation of fact that made him inadmissible
and ineligible for adjustment of status. *
Accordingly, we dismiss the petition for review from that
part of the Board’s order denying Furqan’s motion to remand and
deny the petition for review from that part of the Board’s order
dismissing his appeal from the IJ’s decision. We dispense with
oral argument because the facts and legal contentions are
adequately presented in the materials before this court and
argument would not aid the decisional process.
DISMISSED IN PART;
DENIED IN PART
*Insofar as Furqan argues that he retracted his
misrepresentation in a timely manner, we are without
jurisdiction to review this argument because Furqan did not
exhaust the argument by raising it on appeal to the Board. 8
U.S.C. § 1252(d)(1) (2012); Tiscareno-Garcia v. Holder, 780 F.3d
205, 210 (4th Cir. 2015) (alien who does not raise claim to the
Board fails to exhaust administrative remedies).
4