Igwebuike v. Caterisano

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-6640
DONALD IGWEBUIKE,
Petitioner - Appellant,
versus
RICHARD C. CATERISANO, Maryland District
Director of the U. S. Citizenship &
Immigration Services,
Respondent - Appellee.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Deborah K. Chasanow, District Judge. (CA-
04-1586-DKC)
Argued: October 27, 2006 Decided: April 20, 2007
Before WILLIAMS, MICHAEL, and KING, Circuit Judges.
Reversed and remanded with instructions by unpublished per curiam
opinion.
ARGUED: Steven Kreiss, Washington, D.C., for Appellant. Bryan
Stuart Beier, UNITED STATES DEPARTMENT OF JUSTICE, Office of
Immigration Litigation, Washington, D.C., for Appellee. ON BRIEF:
Rod J. Rosenstein, United States Attorney, Jennifer A. Wright,
Assistant United States Attorney, Baltimore, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Donald Igwebuike, an alien, appeals the district court’s
order dismissing, for lack of subject matter jurisdiction, his
petition for a writ of habeas corpus. Igwebuike filed the habeas
petition after the Bureau of Citizenship and Immigration Services
placed him in jail pursuant to a final order of exclusion and
rejected his I-485 application for adjustment of status to
permanent legal resident. The district court had jurisdiction to
consider whether the District Director committed legal error in
determining that Igwebuike was inadmissible and therefore
ineligible for adjustment of status. We have jurisdiction to
review the district court’s dismissal order. Because we conclude
that legal error was committed, we remand for the district court to
enter an order instructing the District Director to reconsider
whether Igwebuike is eligible for an adjustment of status.
I.
Igwebuike, a citizen of Nigeria, entered the United
States on August 10, 1980, as a J-1 exchange student to attend
Clemson University. After graduation he received temporary worker
status to play professional football for the Tampa Bay Buccaneers
and the Minnesota Vikings. His NFL career ended prematurely after
his 1990 indictment in Tampa on charges relating to the importation
of heroin into the United States. Igwebuike maintained his
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innocence, went to trial, and was acquitted by a jury. He remained
in the United States and in 1995 married Gacquett Jennings, a U.S.
citizen.
In 1996 Igwebuike left the United States for a brief
visit abroad. Upon his return he was paroled into the country and
ordered to appear before the Immigration Court. Igwebuike was
charged with being an excludable alien on the grounds that (1) he
lacked an immigration visa or other valid entry document, see 8
U.S.C. § 1182(a)(7)(A)(i)(I), and (2) he entered the United States
for employment purposes without a labor certification, see id.§ 1182(a)(5)(A)(i).
In September 1997, before exclusion proceedings
commenced, Gacquett Jennings filed an I-130 petition to register
Igwebuike as an immediate relative of a U.S. citizen. Igwebuike
simultaneously filed an I-485 application, requesting the
Immigration and Naturalization Service (INS) to adjust his
immigration status (upon approval of the I-130) to legal permanent
resident.
On February 8, 1999, Igwebuike moved to terminate the
exclusion proceedings due to the pending I-130 and I-485
applications. The immigration judge (IJ) informed him that the
Immigration Court did not have jurisdiction to adjudicate the I-130
petition while the exclusion proceedings were ongoing. At the next
hearing, in March 1999, Igwebuike denied both charges of
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excludability. At a third hearing in June 1999, however, Igwebuike
admitted excludability on the invalid document charge. The IJ
proceeded to find Igwebuike excludable on both charges and ordered
him excluded and removed from the United States.
On July 15, 1999, an INS adjudication officer interviewed
Igwebuike and Jennings regarding his I-485 application and her I-
130 application. The officer approved the I-130 application, but
deferred action on the I-485 application pending further
consideration. The District Director, in a letter dated July 15,
1999, requested that Igwebuike “[s]ubmit the complete disposition
for the . . . arrest” on November 9, 1990. J.A. 104. The letter
specified that “[t]he disposition must be issued by the court which
had jurisdiction over the case.” Id. On August 10, 1999,
Igwebuike provided the adjudication officer with a copy of the
judgment of acquittal, issued by the presiding judge, showing that
Igwebuike was acquitted on all three charges in the indictment.
The INS took no action on Igewbuike’s application despite several
inquiries by Igwebuike’s lawyer and his wife (Jennings).
On December 13, 2001, the INS took Igwebuike into custody
pursuant to the 1999 order of excludability. He was released on a
$5,000 bond on December 21, 2001, after the INS was unable to
remove him from the United States. The INS, which in 2003 was
moved into the Department of Homeland Security and renamed the
Bureau of Citizenship and Immigration Services (BCIS), detained
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Igwebuike again on May 3, 2004. Igwebuike informed the BCIS that
his application for adjustment of status, filed seven years prior,
was still pending. On May 12, 2004, the District Director denied
Igwebuike’s I-485 application for an adjustment of status. The
order stated:
Although you were acquitted of Importation of Heroin, you
failed to submit the complete arrest/police reports
detailing the circumstances surrounding your arrest.
Therefore, you have failed to establish to the
satisfaction of the Service that you were entirely
innocent of [the drug trafficking charges]. Absent such
documentation, you have failed to establish your
admissibility to the United States pursuant to Section
[1182(a)(2)(C)(i)], as a suspected trafficker in
controlled substances.
J.A. 122. The Director concluded, “As you are inadmissible to the
United States pursuant to [§ 1182(a)(2)(C)(i)], you are ineligible
for adjustment of status, both as a matter of law and as a matter
of discretion.” J.A. 122. No administrative appeal of this
determination was available. See 8 C.F.R. § 245.2(a)(5)(ii).
Igwebuike, who remained in custody, then filed a petition
for a writ of habeas corpus, see 28 U.S.C. § 2241, in district
court. He contended that the District Director erred in concluding
that he was an inadmissible alien under 8 U.S.C. § 1182(a)(2)(C)(i)
and therefore statutorily ineligible for an adjustment of status.
Igwebuike also contended that the Director failed to comply with
the procedural requirement in 8 C.F.R. § 103.2(b)(8) by denying his
application without first requesting additional evidence. Finally,
Igwebuike contended that the Director did not fairly adjudicate his
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adjustment of status application, in violation of his right to due
process. In March 2005 the district court granted the government’s
motion to dismiss the habeas petition, holding that 8 U.S.C.
§ 1252(a)(2)(B) prevented judicial review of the Director’s
decision. Igwebuike seeks to appeal the district court’s order.
II.
We must first determine how to classify Igwebuike’s case
in this court. After his case came to us, the REAL ID Act of 2005,
Pub. L. No. 109-13, Div. B, 119 Stat. 231, went into effect. The
Act eliminated habeas jurisdiction over final orders of removal,
making a petition for review filed in a federal court of appeals
the “sole and exclusive means for judicial review” for most orders
of removal. 8 U.S.C. § 1252(a)(5). The Act instructed district
courts to transfer all pending habeas petitions that challenge a
final order of removal to the appellate court in which a petition
for review could have been filed in the first instance. 119 Stat.
at 311. Although the REAL ID Act is silent with respect to habeas
appeals pending before appellate courts on the date the Act went
into effect, this court and others have construed such appeals as
petitions for review filed under § 1252. See, e.g., Jahed v. Acri,
468 F.3d 230, 233 (4th Cir. 2006); Schmitt v. Maurer, 451 F.3d
1092, 1095 (10th Cir. 2006); Alvarez-Barajas v. Gonzales, 418 F.3d
1050, 1053 (9th Cir. 2005).
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Igwebuike clarified at oral argument that he does not
challenge the order of removal. (Indeed, he conceded excludability
before the IJ.) He only challenges the District Director’s
determination that he is not eligible for consideration for an
adjustment of status. Accordingly, the REAL ID Act does not apply,
and we therefore consider this proceeding as an appeal from the
district court’s dismissal of his habeas petition.
The government argues that our review of the district
court’s order dismissing Igwebuike’s habeas petition is barred by
the Illegal Immigration Reform and Immigrant Responsibility Act of
1996 (IIRIRA). The government relies specifically on 8 U.S.C.
§ 1252(a)(2)(B), which states: “no court shall have jurisdiction
to review . . . any judgment regarding the granting of relief under
section [1255],” relating to adjustment of status. This provision,
the government argues, prohibits our review of Igwebuike’s habeas
petition because the decision to grant an adjustment of status is
committed to the discretion of the Attorney General, acting through
his designated district director. See 8 U.S.C. § 1255(a) (stating
that “the status of an alien . . . may be adjusted by the Attorney
General, in his discretion and under such regulations as he may
prescribe”).
Section 1252(a)(2)(B) is not applicable to the present
case. Section 1252, as amended by the IIRIRA, governs judicial
review over exclusion proceedings initiated after April 1, 1997,
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the date the IIRIRA went into effect. See IIRIRA, Pub. L. No. 104-
208, § 309(a), 110 Stat. 3009; Okpa v. INS, 266 F.3d 313, 316-17
(4th Cir. 2001). The proceedings against Igwebuike were commenced
before this date, in June 1996. Thus, the IIRIRA’s transitional
rules, not the permanent rules, determine our jurisdiction. See
IIRIRA, § 309(c)(4), 110 Stat. 3009.
Section 309 of the IIRIRA, the transitional rule
governing judicial review, states that “there shall be no appeal of
any discretionary decision under [§ 1255].” Id. § 309(c)(4)(E).
This transitional rule limits jurisdiction over appeals only, not
petitions for habeas corpus. See Bowrin v. INS, 194 F.3d 483, 488
(4th Cir. 1999) (stating that when Congress “used the term
‘appeal,’ [it] meant the process of ordinary appellate review
commenced with the filing of a notice of appeal or a petition for
review in the court of appeals”). Section 309(c)(4) does not refer
to habeas relief under § 2241, and we do not interpret it to
“preclude district court jurisdiction over such habeas petitions.”
Id.
Although the transitional rules of the IIRIRA do not bar
habeas jurisdiction, our review is limited. Habeas jurisdiction
under § 2241 permits courts to review “pure questions of law [that
do] not touch upon decisions that are under the discretion of the
Attorney General.” Moussa v. Jenifer, 389 F.3d 550, 554 (6th Cir.
2004) (citing INS v. St. Cyr, 533 U.S. 289, 305 (2001)). The
8
government states that we lack jurisdiction over Igwebuike’s habeas
petition because the decision to adjust an alien’s status is
committed to the discretion of the Attorney General. See 8 U.S.C.
§ 1255. As the government points out, “[w]e lack jurisdiction to
review a denial of status adjustment.” Velasquez-Gabriel v.
Crocetti, 263 F.3d 102, 104 n.1 (4th Cir. 2001).
Igwebuike, however, does not challenge a discretionary
decision by the Director. Indeed, the Director did not have the
opportunity to exercise discretion because he determined that
Igwebuike was an inadmissible alien under § 1182(a)(2)(C)(i) and
therefore statutorily ineligible for discretionary relief. See
§ 1255 (permitting the Attorney General to adjust the status of
aliens who are “admissible to the United States”). Igwebuike only
seeks review of what he contends is legal error in the
determination that rendered him ineligible for an adjustment of
status.
Whether Igwebuike is an inadmissible alien, and therefore
ineligible for an adjustment of status, is a question that involves
the application of legal standards. There is a “distinction
between eligibility for discretionary relief . . . and the
favorable exercise of discretion.” St. Cyr, 533 U.S. at 307(2001). A court may review the legal standards applied in a
determination of eligibility, but it may not remand a decision to
grant or withhold discretionary relief. See DaCosta v. Gonzales,
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449 F.3d 45, 49 (1st Cir. 2006) (holding that the court could
review the BIA’s determination that petitioner was ineligible for
discretionary relief); Morales-Morales v. Ashcroft, 384 F.3d 418,
422 (7th Cir. 2004) (concluding that the IIRIRA does not “clearly
indicate that the exclusion from judicial review is so extreme as
to purport to authorize the Attorney General to disregard . . .
statutory criteria”). We conclude that we have jurisdiction to
review whether the Director committed legal error in determining
that Igwebuike is an inadmissible alien under 8 U.S.C. § 1182. We
stress that our review is limited to reviewing whether Igwebuike is
legally eligible to be considered for discretionary relief,
specifically, an adjustment of status. We would not review the
Director’s exercise of his discretion whether to adjust Igwebuike’s
status.
III.
We now turn to the merits of Igwebuike’s petition.
First, we consider whether the Director committed legal error in
finding Igwebuike inadmissible and, therefore, statutorily
ineligible for an adjustment of status. Second, we consider his
claim that the Director failed to comply with the procedural
requirements in 8 C.F.R. § 103.2(b)(8). Finally, we take up
Igwebuike’s due process challenge.
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A.
8 U.S.C. § 1255(a) authorizes the Attorney General to
adjust an alien’s status to legal permanent resident if “the alien
is eligible to receive an immigrant visa and is admissible to the
United States for permanent residence.” An alien is thus not
eligible for an adjustment of status if he is inadmissible under
§ 1182. Section 1182(a)(2)(C) provides that an alien is
inadmissible if “the Attorney General knows or has reason to
believe [the alien] is or has been an illicit trafficker in any
controlled substance.” The Director concluded that Igwebuike was
inadmissible under this provision because Igwebuike “failed to
establish to the satisfaction of the Service that [he] was entirely
innocent” of the 1990 charges for importing heroin. J.A. 122.
This determination rendered Igwebuike ineligible for the
discretionary relief provided in § 1255(a).
The Director committed legal error in finding Igwebuike
inadmissible under § 1182(a)(2)(C). The statute explicitly states
that an alien is inadmissible only when the Attorney General “knows
or has reason to believe” the alien is a drug trafficker. This
belief must be based on “reasonable, substantial, and probative
evidence.” Matter of Rico, 16 I. & N. Dec. 181, 185 (BIA 1977);
Alarcon-Serrano v. INS, 220 F.3d 1116, 1119 (9th Cir. 2000). The
Director did not cite any evidence, other than a charge for which
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Igwebuike was acquitted, to support a finding that Igwebuike was a
drug trafficker.
An arrest or charge by itself is not substantial evidence
of drug trafficking. Although the Director may determine that an
alien is inadmissible based on facts underlying an arrest, he must
cite these facts as support for his “reason to believe” that the
petitioner was involved in drug trafficking. In Matter of Rico,
for example, the BIA did not rest on the evidence of Rico’s arrest
for drug trafficking, but detailed all of the evidence against him,
including the undisputed fact that he had a “large quantity of
marihuana concealed in his motor vehicle” at the time of his
arrest. 16 I. & N. Dec. at 186. Similarly, in Rojas-Garcia v.
Ashcroft, 339 F.3d 814 (9th Cir. 2003), the Ninth Circuit upheld
the BIA’s decision to deny an I-485 application because, in
addition to a previous arrest for drug trafficking, two undercover
detectives testified that they had personally arranged drug deals
with the petitioner. Id. at 818; see also Lopez-Molina v.
Ashcroft, 368 F.3d 1206, 1211 (9th Cir. 2004) (finding sufficient
reason to believe the alien had committed illegal acts underlying
previous drug trafficking arrest because the government submitted
documents describing the police surveillance of the alien and the
alien’s subsequent attempt to escape with 147 pounds of marijuana).
Because the Director did not point to reasonable, substantial, and
probative evidence to support a belief that Igwebuike had
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trafficked in drugs, he erred in concluding that he was
inadmissible.
The government argues that the Director did not need to
provide substantial evidence of drug trafficking because Igwebuike
bears the burden of establishing eligibility for relief. In order
to meet this burden, the government argues, Igwebuike must show
that there is no reason to believe that he was involved in drug
trafficking. According to the government, Igwebuike failed to meet
this burden because he did not provide evidence, such as arrest or
police reports, showing that he was innocent of the drug
trafficking charges. The government overstates the nature of what
Igwebuike had to show in this case.
An alien seeking an adjustment of status has the burden
to prove that he is eligible for relief. See 8 C.F.R.
§ 103.2(b)(1); Rashtabadi v. INS, 23 F.3d 1562, 1567-68 (9th Cir.
1994); cf. 8 U.S.C. § 1361 (stating that an alien seeking admission
has the burden to prove that he “is not inadmissible under any
provision of this chapter”). This does not mean, however, that
Igwebuike must affirmatively prove that he was innocent of drug
trafficking. An alien is inadmissible under § 1182(a)(2)(C), and
therefore ineligible for relief, if the Attorney General “knows or
has reason to believe” that he is involved in drug trafficking. An
alien satisfies his burden to show that he is not inadmissible
under this provision once he submits any evidence requested by the
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Director, see 8 C.F.R. § 103.2(b)(8), and that evidence, together
with other evidence before the Director, is not sufficient to
establish knowledge or belief on the Director’s part that the alien
is a drug trafficker. Igwebuike has met this burden because his
arrest for drug trafficking, and the disposition of his case (the
judgment of acquittal) that he submitted at the Director’s request,
did not provide reasonable, substantial, and probative evidence of
drug trafficking. See Matter of Rico, 16 I. & N. Dec. at 185;
Alarcon-Serrano, 220 F.3d at 1119. In short, the evidence was
insufficient as a matter of law to support the Director’s finding
that Igwebuike was inadmissible under § 1182(a)(2)(C).
Of course, our conclusion that the Director committed
legal error in finding Igwebuike inadmissible does not suggest that
Igwebuike is entitled to an adjustment of status. The grant of an
application for adjustment of status is a matter of “administrative
grace, not mere eligibility.” Matter of Leung, 16 I. & N. Dec. 12,
14 (BIA 1976). Thus, in addition to proving eligibility for
relief, an alien must also show that “discretion should be
exercised in his favor.” Matter of Patel, 17 I. & N. Dec. 597, 601
(BIA 1980).
B.
Igwebuike also claims that his failure to submit the
arrest or police reports to the BCIS could not render him
14
ineligible for relief because the Director never requested this
information pursuant to 8 C.F.R. § 103.2(b)(8). This regulation
states, “If there is evidence of ineligibility in the record, an
application or petition shall be denied on that basis alone.” If,
on the other hand, “the evidence submitted either does not fully
establish eligibility for the requested benefit or raises
underlying questions regarding eligibility, the Service shall
request the missing initial evidence.” J.A. 122.
The government concedes that, pursuant to the regulation,
the Director must request additional information unless the
evidence in the record is sufficient to establish ineligibility.
We have already explained that an arrest for drug trafficking,
without any of the facts underlying the arrest, does not give the
Director reason to believe that the petitioner was involved in that
activity. Thus, the Director could not find Igwebuike ineligible
based on the evidence in the record. The drug trafficking arrest,
however, does “raise underlying questions regarding eligibility,”
see § 103.2(b)(8), and the Director was obliged to request further
information, such as arrest or police reports, if he believed it
was necessary to determine Igwebuike’s eligibility for relief.
Once the Director requests additional information, he may deny the
application if the alien fails to provide the information, see
§ 103.2(b)(13), or prove its non-existence, see § 103.2(b)(2).
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C.
Finally, we address Igwebuike’s due process claim.
Igwebuike submits that he agreed to admit excludability solely
because the IJ promised that the INS would fairly adjudicate his
adjustment of status petition. Igwebuike argues that the Director
disregarded this agreement and arbitrarily denied his application,
in violation of his due process rights. We reject this claim for
two reasons.
First, there is no evidence in the record that Igwebuike
reached such an agreement with the immigration judge. The IJ
merely informed Igwebuike that the INS could not process his
application for an adjustment of status while the exclusion
proceedings were ongoing. Igwebuike then conceded excludability so
that the INS could process his I-130 and I-485 petitions. There is
no record that the immigration judge and Igwebuike reached any
agreement regarding his I-485 application.
Second, a due process claim requires the deprivation of
some cognizable interest or property. Matthews v. Eldridge, 424
U.S. 319, 332 (1976). Aliens do not have a property interest or
right to an adjustment of status. As we explained in Smith v.
Ashcroft, “discretionary statutory ‘rights’ do not create liberty
or property interests protected by the Due Process Clause.” 295
F.3d 425, 430 (4th Cir. 2002). Accordingly, Igwebuike’s due
process claim must fail.
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IV.
For the foregoing reasons, we reverse the district
court’s order dismissing Igwebuike’s habeas corpus petition for
lack of subject matter jurisdiction. Our ruling requires a limited
remand. We remand for the district court to enter an order giving
the District Director sixty days in which to begin reconsideration
of Igwebuike’s eligibility for adjustment of status, using the
appropriate evidentiary standard and complying with 8 C.F.R.
§ 103.2(b)(8). If Igwebuike is determined to be eligible for
consideration for adjustment of status, the Director may, of
course, decide whether that discretionary relief is warranted. If
the Director provides satisfactory proof, within ninety days of the
district court’s order, that the reconsideration is under way, the
court may dismiss the case. If the Director fails to comply, the
district court will issue a writ of habeas corpus.
REVERSED AND REMANDED
WITH INSTRUCTIONS
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