Salama v. Holder

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-1718
MUSTAFA MOHAMED SALAMA,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Argued: September 24, 2009 Decided: October 22, 2009
Before TRAXLER, Chief Judge, HAMILTON, Senior Circuit Judge, and
Mark S. DAVIS, United States District Judge for the Eastern
District of Virginia, sitting by designation.
Petition for review denied by unpublished per curiam opinion.
ARGUED: Thomas A. Elliot, ELLIOT & MAYOCK, LLP, Washington,
D.C., for Petitioner. James A. Hurley, UNITED STATES DEPARTMENT
OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF:
Fabienne Chatain, Thomas H. Tousley, ELLIOT & MAYOCK, LLP,
Washington, D.C., for Petitioner. Gregory G. Katsas, Assistant
Attorney General, Stephen J. Flynn, Assistant Director, UNITED
STATES DEPARTMENT OF JUSTICE, Office of Immigration Litigation,
Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Mustafa Mohamed Salama petitions for review of an order
denying him an adjustment of status. Because he failed to
challenge the basis for the decision of the Board of Immigration
Appeals and instead focused solely on the immigration judge’s
decision, he has waived his challenge to the Board’s decision.
Thus, we are compelled to deny Salama’s petition for review.
I.
Salama is a native of Egypt who entered the United States
in 1978 on a nonimmigrant B-2 visa. In 1983, Salama’s status
was adjusted to that of Lawful Permanent Resident (“LPR”) based
on his marriage to a U.S. citizen.
After obtaining LPR status, Salama was twice convicted on
federal charges. In 1991, Salama was convicted on federal
counterfeiting charges, see 18 U.S.C. § 474(a), for which he was
sentenced to a prison term of 27 months. In 2003, Salama was
convicted in federal court for conspiracy to commit credit card
fraud, see 18 U.S.C. § 1029(b)(2) and (c)(1)(A)(i), for which he
was sentenced to five years of probation and required to pay
restitution.
In 2004, the Department of Homeland Security (“DHS”) sought
to remove Salama on two grounds under the Immigration and
Nationality Act (“INA”): (1) that, based on his 1991
2
counterfeiting conviction, Salama had been convicted of an
aggravated felony after having been admitted to the United
States, see 8 U.S.C. § 1227(a)(2)(A)(iii) and 8 U.S.C.
§ 1101(a)(43)(R); and (2) that, based on the 1991 and 2003
convictions, Salama had been convicted of two or more crimes of
moral turpitude after having been admitted to the United States,
see 8 U.S.C. § 1227(a)(2)(A)(ii). The immigration judge (“IJ”)
determined that both offenses qualified as crimes of moral
turpitude and that the 1991 conviction constituted an aggravated
felony as well. In accordance with these conclusions, the IJ
adjudged Salama removable on both grounds charged by the DHS.
To escape removal, Salama applied to have his status
adjusted, once again, to that of LPR under section 245(a) of the
INA. See 8 U.S.C. § 1255(a). Salama also requested
cancellation of removal under INA § 240A(a). See 8 U.S.C.
1229b(a). The IJ denied Salama’s request for relief on both
bases, and the Board of Immigration Appeals (“BIA”) affirmed.
In his Petition for Review to this court, Salama challenged both
determinations; however, at oral argument, he withdrew his
challenge to the BIA’s denial of cancellation of removal under
section 240A(a) of the INA. Accordingly, Salama’s sole
3
challenge before this panel concerns the BIA’s denial of an
adjustment of Salama’s status. *
II.
In order to adjust his temporary status to that of a
permanent resident, an alien must demonstrate, among other
things, that he “is admissible to the United States for
permanent residence.” 8 U.S.C. § 1255(a). In other words, an
alien must be admissible to the United States to be eligible for
an adjustment of status. Under the INA, an alien is
inadmissible – and therefore ineligible for an adjustment of
status – if he has been “convicted of” or “admits having
committed . . . a crime involving moral turpitude.” 8 U.S.C.
§ 1182(a)(2)(A)(i)(I). Salama does not dispute the IJ’s
conclusion that both underlying convictions qualify as crimes of
moral turpitude that potentially render him inadmissible under
INA § 1182(a)(2)(A)(i)(I) and therefore unable to satisfy the
*
Salama requested two additional forms of relief that are
not at issue in this court: withholding or deferral of removal
under the Convention Against Torture (“CAT”), and withholding of
removal under the INA, see 8 U.S.C. § 1231(b)(3)(A). The IJ
denied Salama’s request for withholding of removal under the INA
but granted relief under the CAT. The BIA affirmed both
conclusions. In his petition for review, Salama does not
challenge the BIA’s denial of withholding of removal.
4
admissibility requirement for an adjustment of status under
§ 1255(a).
Thus, Salama is down to his last resort –- asking for a
discretionary waiver of inadmissibility. See 8 U.S.C.
§ 1182(h)(1)(B). The INA affords the Attorney General
discretion to grant, in certain circumstances, a waiver of
inadmissibility based on hardship. Section 1182(h) permits the
Attorney General, “in his discretion, [to] waive the application
of subparagraph[] (A)(i)(I),” which classifies as inadmissible
any alien who has committed a crime of moral turpitude, for an
alien with a spouse, child or parent who is a citizen or LPR and
would suffer “extreme hardship” because of “the alien’s denial
of admission.” 8 U.S.C. § 1182(h)(1)(B). Salama sought a
hardship waiver based on the negative effect his removal would
presumably have on his two daughters who are American citizens
residing in the United States.
Although an inadmissibility waiver is ultimately a
discretionary form of relief, Congress imposed eligibility
limitations: “No waiver shall be granted under this subsection
in the case of an alien who has previously been admitted to the
United States as an alien lawfully admitted for permanent
residence if . . . since the date of such admission the alien
has been convicted of an aggravated felony . . . .” 8 U.S.C.
§ 1182(h) (emphasis added). Based on the foregoing language,
5
the IJ concluded that Salama was barred from receiving a waiver
of inadmissibility. The IJ ruled that when Salama adjusted his
status to that of a LPR in 1983, it was the equivalent of having
been admitted as a LPR into the United States from abroad.
Because Salama was convicted of a felony after 1983, the IJ
reasoned that § 1182(h) precluded him from receiving a
discretionary hardship waiver of inadmissibility:
Respondent adjusted his status to that of a legal
permanent resident in 1983 based on his marriage to a
United States citizen. While Respondent argues that
he was never admitted because he became a legal
permanent resident through adjustment of status, this
argument is erroneous. According to INA § 101(a)(20),
“lawfully admitted for permanent residence” is defined
as “the status of having been accorded the privilege
of residing permanently in the United States as an
immigrant in accordance with the immigration laws,
such status not having changed.” Respondent, having
obtained the privilege of residing permanently in the
United States, has been admitted to the United States.
During pleadings, Respondent conceded . . . that he
had been convicted of an aggravated felony after
admission . . . . Respondent is therefore ineligible
for adjustment of status and a waiver pursuant to
[§ 1182(h)] because he is an alien previously admitted
to the United States as an alien lawfully admitted for
permanent residence who, since the date of such
admission, has been convicted of an aggravated felony.
J.A. 143 (citations omitted).
Although the BIA affirmed, it did so on expressly different
grounds, eschewing the IJ’s reasoning that equated the concepts
of “admission” as an LPR and “adjustment of status.” See
generally Aremu v. Dep’t of Homeland Security, 450 F.3d 578, 581
(4th Cir. 2006) (explaining that an adjustment to status differs
6
from an admission as an LPR because “such a change in status
can[not] be characterized as an ‘entry’ into the United States”)
(internal quotation marks omitted). Instead, the BIA concluded
that because Salama was not seeking admission into the United
States, he was not eligible to seek a hardship waiver under
§ 1182(h), which is available only for an alien who can show
that the “denial of admission would result in extreme hardship”
to the alien’s citizen-spouse or child. 8 U.S.C. § 1182(h)
(emphasis added). The BIA explained that
a [hardship] waiver . . . can only be granted to an
alien who establishes to the satisfaction of the
Attorney General that a “denial of admission” will
cause extreme hardship to a qualifying relative;
[§ 1182(h)] does not by its terms give the Attorney
General power to waive inadmissibility for an alien
who can show only that a denial of adjustment of
status will cause such hardship. [Salama] is present
in the United States and is applying for adjustment of
status before an immigration judge; he does not seek
“admission,” that is, “lawful entry into the United
States after inspection and authorization” . . .
within the meaning of [§ 1101(a)(13)(A)]. . . . [T]he
fact that [Salama] does not seek (or stand in jeopardy
of being denied) “admission,” as that term is defined
by [§ 1101(a)(13)(A)], means that his application for
a waiver of inadmissibility would have to be
pretermitted, albeit for reasons different from those
relied upon by the Immigration Judge.
J.A. 35.
III.
In his petition for review to this court, Salama argues
that the statutory bar to a waiver of inadmissibility applies by
7
its plain language only to aliens admitted from abroad into the
United States as LPRs, as opposed to those who, having arrived
and been admitted as non-immigrant visitors, adjusted to LPR
status. See 8 U.S.C. § 1182(h) (“No waiver shall be granted
under this subsection in the case of an alien who has previously
been admitted to the United States as an alien lawfully admitted
for permanent residence if . . . since the date of such
admission the alien has been convicted of an aggravated felony .
. . .”) (emphasis added). Salama’s argument is based on dual
bases: (1) that the waiver bar in section 1182(h) expressly
precludes only aggravated felons who were previously admitted
into the United States as LPRs; and (2) that the term “admitted”
into the United States is wholly distinct from “adjusted
status.” According to Salama, the IJ misapplied the § 1182(h)
bar by “amalgamating” the concepts of “admission” as an LPR into
the United States and “adjustment of status.” Brief of
Petitioner at 15. Salama’s argument, therefore, is directed
entirely at the decision of the IJ applying the aggravated
felony bar of § 1182(h) to render Salama ineligible to seek a
hardship waiver.
The Attorney General contends that Salama failed in his
opening brief to challenge or address in any way the BIA’s
decision and thereby waived his challenge to it. We are
constrained to agree. Unlike the IJ, the BIA did not apply the
8
§ 1182(h) bar based on Salama’s aggravated felony; rather, the
BIA determined that Congress did not provide the hardship waiver
for an inadmissible alien seeking an adjustment of status. In
his opening brief, Salama simply failed to address the BIA’s
decision or its rationale.
This court follows the “well settled rule that contentions
not raised in the argument section of the opening brief are
abandoned.” See United States v. Al-Hamdi, 356 F.3d 564, 571
n.8 (4th Cir. 2004); see also Fed. R. App. P. 28(a)(9)(A);
Edwards v. City of Goldsboro, 178 F.3d 231, 241 n.6 (4th Cir.
1999). We overlook this rule only in those rare circumstances
where we conclude, in our discretion, that the application of
the rule would result in “a miscarriage of justice.” A Helping
Hand, LLC v. Baltimore County, Md., 515 F.3d 356, 369 (4th Cir.
2008) (internal quotation marks omitted).
Salama reads the decision of the BIA as resting on
alternative grounds – one being the rationale adopted by the IJ
that Salama is ineligible for a waiver by operation of the
aggravated felony bar in § 1182(h) and the other being the BIA’s
additional rationale that a waiver of inadmissibility is simply
unavailable to someone seeking an adjustment of status. Salama
acknowledges that only the former rationale was addressed in his
opening brief; his challenge to the latter rationale appears
9
only in his reply brief. Nevertheless, Salama contends that his
argument was sufficient to avoid waiver.
We do not read the BIA’s denial of an adjustment of status
to rest on alternative grounds. The BIA clearly did not embrace
the IJ’s analysis, explaining that Salama was not entitled to an
adjustment of status “for reasons different from those relied
upon by the Immigration Judge.” J.A. 35. But, even if the BIA
did rely on alternative bases, we fail to see how this aids
Salama. As he acknowledges, Salama focused solely on the
rationale of the IJ in his opening brief and failed to address
the BIA’s reasoning. See Ngarurih v. Ashcroft, 371 F.3d 182,
188 (4th Cir. 2004) (explaining that where the BIA issues its
own decision rather than solely adopting the decision of the
immigration judge, the court of appeals reviews the BIA’s
decision). The fact that he developed an argument in his reply
brief does not cure his failure to do so in the opening brief.
See Yousefi v. USINS, 260 F.3d 318, 326 (4th Cir. 2001) (per
curiam).
Moreover, we decline to exercise our discretion to overlook
the waiver of this argument. Salama suggests that the
government would suffer no prejudice were we to consider the
argument in his reply brief, which may or may not be true, but
he has neither explained why the BIA’s decision was not
discussed in his opening brief nor why our refusal to exercise
10
our discretion will result in manifest injustice. See Helping
Hand, 515 F.3d at 369 (refusing to overlook waiver where the
appellant “has not even explained why it failed to raise these
arguments earlier, let alone explained why, absent our
consideration, a miscarriage of justice would result”).
PETITION FOR REVIEW DENIED
11