Peter v. Gonzales

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-2283
MARTIN PETER; AUDREY PETER; C.P.,
Petitioners,
versus
ALBERTO R. GONZALES, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals. (A71-955-386; A71-955-384; A71-955-385)
Argued: October 26, 2006 Decided: December 29, 2006
Before WILKINS, Chief Judge, and WIDENER and DUNCAN, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Jonathan Scott Greene, HOWANSKI & GREENE, L.L.C., Towson,
Maryland, for Petitioners. Eric Warren Marsteller, UNITED STATES
DEPARTMENT OF JUSTICE, Office of Immigration Litigation,
Washington, D.C., for Respondent. ON BRIEF: Peter D. Keisler,
Assistant Attorney General, Civil Division, Carol Federighi, Senior
Litigation Counsel, 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Unpublished opinions are not binding precedent in this circuit.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:
Petitioner Martin J. Peter (“Mr. Peter”), a citizen of South
Africa, came to the United States on a temporary basis in 1991,
seeking medical treatment for his two children who suffer from a
rare genetic illness. In July 2001, Mr. Peter’s petition for alien
worker status was approved and the Department of Homeland Security
(“DHS”) filed with Mr. Peter a joint motion to reopen before the
immigration judge so that the Peters could file for adjustment of
status. Unfortunately, Mr. Peter concealed an arrest for
solicitation of a prostitute from the immigration judge; when the
immigration judge became aware of this untruth, he denied Mr.
Peter’s motions to reopen and reconsider. Mr. Peter appealed this
decision to the Board of Immigration Appeals (“BIA”) which affirmed
the immigration judge’s decision. He then appealed the BIA’s
decision to this court, alleging that both the immigration judge
and BIA abused their discretion in denying his motions to reopen
and reconsider. Mr. Peter also alleges that the immigration judge
violated due process in denying these motions without a hearing.
For the reasons that follow, we affirm.
I.
Mr. Peter, a South African citizen, entered the United States
with his wife and two children (“the Peters”) in May 1991 with
authorization to remain until November 1991. Mr. Peter’s children
2
were to receive treatment for a rare mitochondrial disease at Johns
Hopkins University.1 Still in the U.S. on January 14, 1992, the
Peters received permission to depart before January 13, 1993 and
later received an extension until July 10, 1994. The Peters did
not leave the country by this deadline. In June 1996, Mr. Peter
was charged with deportability for remaining in the country longer
than permitted, and on August 21, 1996, an immigration judge
granted Mr. Peter’s application for voluntary departure but also
issued an alternative removal order if Mr. Peter failed to depart
by March 1, 1997. Again, the Peters did not leave the United
States.
In July 2001, Mr. Peter’s petition for alien worker status was
approved and the Department of Homeland Security (“DHS”) filed with
him a joint motion to reopen before the immigration judge so that
the Peter family could file for adjustment of status. Mr. Peter
was required to fill out a variety of paperwork related to this
motion, including a Form I-485, which asks: “Have you ever, in or
outside the U.S. . . . been arrested, cited, charged, indicted,
fined, or imprisoned for breaking or violating any law or
ordinance, excluding traffic violations?” J.A. 5. Mr. Peter
answered “no.” Id. A separate question asked whether he had
“within the past 10 years been a prostitute or procured anyone for
1
The Peters’ son passed away in 1999.
3
prostitution.” Id. Mr. Peter answered “no” again. Id. On July 22,
2004, the immigration judge granted the joint motion to reopen.
After granting the motion, however, the judge learned that Mr.
Peter had been arrested for soliciting a prostitute in 1997. The
immigration judge then sua sponte vacated his July 22 order and
denied the joint motion to reopen. The judge found that the
information about the crime was concealed from the court and stated
that he would not have granted the motion initially had he been
aware of the incident.
Mr. Peter then filed a motion to reconsider and an alternative
motion to reopen with the immigration judge. His primary argument
was that the alleged misrepresentation was nonmaterial and that the
unique medical needs of his children warranted adjusting his
status. In February 2005, the immigration judge denied these
motions, finding them “meritless.” J.A. 51. The judge explained
that his decision to vacate was based on Mr. Peter’s concealment of
his solicitation incident from the court. Because Peter did not
allege any error of law in the immigration judge’s exercise of
discretion, the judge denied the motion to reconsider. The judge
also denied Mr. Peter’s motion to reopen as a matter of law and as
a matter of his discretion. The motion was denied as a matter of
law because Mr. Peter was not admissible on two grounds: because he
(1) solicited a prostitute and (2) concealed his criminal record.
The judge concluded that Mr. Peter’s misrepresentation was
4
material. The immigration judge also found that even if Peter had
been legally eligible for relief, he would have exercised his
discretion and denied the motion to reopen.
After the immigration judge denied his motions, Mr. Peter
filed an appeal with the BIA. He argued that the immigration judge
(1) denied him due process rights by vacating the earlier decision
without a full evidentiary hearing, (2) abused his discretion by
refusing to grant Mr. Peter a discretionary waiver of
inadmissibility, (3) erred in finding that the single act of
solicitation was enough to render him inadmissible under
Immigration and Nationality Act (“INA”) § 212(a)(2)(D)(ii), and (4)
erred as a matter of law in concluding that Mr. Peter’s
misrepresentation was material. See J.A. 58-71. Mr. Peter also
argued that the immigration judge cited an incorrect statute as
grounds for finding him inadmissible.
On October 20, 2005, the BIA adopted and affirmed the
immigration judge’s decision denying Mr. Peter’s motions to
reconsider and reopen. The BIA found that the alleged errors of
law or fact were not supported in the record or the law, and it
also found that Mr. Peter was not prejudiced by the immigration
judge’s citation of the improper code section because Mr. Peter had
admitted to soliciting a prostitute which was grounds for
inadmissibility. See J.A. 74. Also, the BIA found that Mr. Peter
failed to make out a prima facie case for adjustment of status.
5
The BIA noted that a conviction record for the solicitation
incident was not required to establish inadmissibility because the
inadmissibility is not based on being convicted of a crime. 8
U.S.C. § 1182(a)(2)(D). Ultimately, the BIA criticized the
immigration judge’s decision to reverse the decision to reopen
prior to holding a hearing but found that this was not an error
worthy of remand. After the BIA adopted the immigration judge’s
order, Mr. Peter filed a petition for review with this court.
II.
A.
We first consider whether the BIA erred by affirming the
immigration judge’s denial of Mr. Peter’s motion to reopen.
Because we agree with the BIA that the immigration judge had the
authority to sua sponte reconsider his decision to grant the
motion, we find no error.
We review a denial of a motion to reopen for an abuse of
discretion. INS v. Abudu, 485 U.S. 94, 104-05 (1988). “This
Court's review of a decision by the BIA denying a motion to reopen
is extremely deferential; we will not reverse the BIA absent an
abuse of discretion.” Stewart v. INS, 181 F.3d 587, 595 (4th Cir.
1999). A party moving to reopen bears a heavy burden. Abudu, 485
U.S. at 110. Motions to reopen “are disfavored. . . . This is
especially true in a deportation proceeding, where, as a general
6
matter, every delay works to the advantage of the deportable alien
who wishes merely to remain in the United States.” INS v. Doherty,
502 U.S. 314, 323 (1992). Federal regulations also clearly state
that an immigration judge “may upon his or her own motion at any
time . . . reopen or reconsider any case in which he or she has
made a decision, unless jurisdiction is vested with the Board of
Immigration Appeals.” 8 C.F.R. § 1003.23(b)(1).
An immigration judge may deny a motion to reopen on at least
three different grounds: (1) for failure to establish a prima facie
case for the relief sought; (2) in the absence of previously
unavailable material evidence; and (3) where the ultimate relief is
discretionary, if the party fails to show he warrants the relief
sought as a matter of discretion. In Re Coelho, 20 I. & N. Dec.
464, 472 (BIA 1992). Moreover, this court must uphold the BIA’s
affirmance of a denial of a motion to reopen unless it “(1) was
made without a rational explanation, (2) inexplicably departed from
established policies, or (3) rested on an impermissible basis such
as invidious discrimination against a particular race or group.”
M.A. v. INS, 899 F.2d 304, 310 (4th Cir. 1990) (superseded in part
by the 1996 adoption of 8 U.S.C. § 1229a(c)(6) creating a statutory
provision for motions to reopen) (quoting Oviawe v. INS, 853 F.2d
1428, 1431 (7th Cir. 1988)).
Below, the BIA affirmed the immigration judge’s denial of the
motion to reopen on two of the grounds above. First, the BIA
7
affirmed the immigration judge’s denial of the motion to reopen on
the grounds that his discretion counseled against granting it
because Mr. Peter concealed the solicitation arrest. Second, the
BIA affirmed the immigration judge’s denial of the motion to reopen
because the judge found that Mr. Peter failed to establish a prima
facie case for adjustment of status. Either of these grounds is an
independently sufficient basis on which to deny the motion. See
Abudu, 485 U.S. at 104-05.
We need not reach the question of whether Mr. Peter
established a prima facie case for relief, as even if he had, the
immigration judge had discretion to deny a motion to reopen. 8
C.F.R. § 1003.23(b)(3). It is clear that where the ultimate relief
sought is discretionary, as it is for a motion to reopen, an
immigration judge may deny the relief if the party fails to show he
warrants the relief sought as a matter of discretion. See In Re
Coelho, 20 I. & N. Dec. 464, 472 (BIA 1992). Mr. Peter argues that
because the judge initially granted the motion to reopen, he lacked
the authority to change his mind and deny it sua sponte. Federal
regulations state, however, that an immigration judge “may upon his
or her own motion at any time . . . reopen or reconsider any case
in which he or she has made a decision, unless jurisdiction is
vested with the Board of Immigration appeals.” 8 C.F.R. §
1003.23(b)(1). Both common sense and the regulations lead us to
the inescapable conclusion that if the immigration judge had the
8
power to grant the motion to reopen, which is discretionary relief,
he had the power to deny it if jurisdiction had not vested in the
BIA, which it had not here.
Also, the immigration judge clearly explained that he denied
the motion to reopen because Mr. Peter concealed his solicitation
arrest from the court. As explained above, he filed statements
before the court denying ever having been arrested or soliciting a
prostitute. Mr. Peter had an opportunity to discuss the conviction
before the court and instead proclaimed that his record was
“clean.” Importantly, as we have explained, motions to reopen are
disfavored, and our review of the BIA and immigration judge’s
rulings is severely circumscribed. The immigration judge explained
(and the BIA reiterated) that Mr. Peter’s untruthfulness before the
tribunal was the reason for denying relief; we find that this was
rational, this was in line with established policies, and there is
no evidence that the ruling “rested on an impermissible basis such
as invidious discrimination against a particular race or group.”
See M.A., 899 F.2d at 310. Therefore, we find no abuse of
discretion.
B.
We next consider whether the BIA erred by affirming the
immigration judge’s denial of Mr. Peter’s motion to reconsider.
9
Again, because we agree with the BIA that the immigration judge had
the authority to sua sponte reconsider his decision to grant the
motion, we find no error.
We review a motion to reconsider under the same “extremely
deferential” standard as a motion to reopen: abuse of discretion.
See Stewart, 181 F.3d at 595. The BIA has explained that a motion
to reconsider is proper when a petitioner raises “additional legal
arguments, a change of law, or . . .an aspect of the case which was
overlooked.” In re Cerna, 20 I. & N. Dec. 399, 402 n.2 (BIA 1991).
As explained above, an immigration judge “may upon his or her own
motion at any time . . . reopen or reconsider any case in which he
or she has made a decision, unless jurisdiction is vested with the
Board of Immigration appeals.” 8 C.F.R. § 1003.23(b)(1).
On appeal, Mr. Peter argues that the BIA erred as a matter of
law in holding that 8 C.F.R.§ 1003.23(b)(1) permits an immigration
judge to reconsider a prior decision at any time prior to
jurisdiction vesting with the BIA. Peter argues that the BIA erred
in affirming the immigration judge’s denial of the motion to
reconsider for two reasons: (1) because the judge lacked authority
to reconsider his prior decision sua sponte, and (2) both the judge
and the BIA relied improperly on contested facts regarding Peter’s
history of soliciting a prostitute. We dismiss Mr. Peter’s first
argument on the same analysis that we affirm the court’s denial of
his motion to reopen above. Again, federal regulations and common
10
sense weigh in favor of our finding that the immigration judge had
the authority to reconsider his own decision sua sponte. See 8
C.F.R. § 1003.23(b)(1). We find that the immigration judge had the
authority to reconsider his prior decision and that the BIA was
within its discretion to affirm it.
The essence of Mr. Peter’s second argument--that the BIA erred
in affirming the denial of his motion to reconsider--is that the
BIA “based its decision to affirm the immigration judge in
substantial part on its misimpression that [Peter] had admitted
committing the crime of solicitation.” In Mr. Peter’s
characterization of the facts, he did not admit to solicitation: he
merely admitted to being arrested for solicitation. He argues
that legally the arrest is not grounds for inadmissibility.
Rather, Mr. Peter argues, engaging in the act of solicitation
itself is grounds for inadmissibility. The immigration judge did
not point to the act of solicitation as the reason for denying the
motion to reconsider; he denied the motion because Mr. Peter was
not truthful about the arrest and concealed it from the court.
Although the BIA did inaccurately characterize Mr. Peter’s
admission as being to solicitation rather than an arrest for
solicitation, this was not the basis for the BIA’s affirmance of
the immigration judge’s decision. Rather, the BIA found no clear
error warranting remand as the judge exercised his discretion
pursuant to federal immigration law. Under the appropriate level
11
of deference we must show to the BIA’s ruling, there is no abuse of
discretion warranting a reversal on this issue. See Stewart, 181
F.3d at 595.
C.
We next consider whether the immigration judge and BIA
violated Mr. Peter’s due process rights by denying his motions
without a hearing. We also find no due process violation.
We review due process claims de novo. Blanco de Belbruno v.
Ashcroft, 362 F.3d 272, 278 (4th Cir. 2004). Although the Supreme
Court has made it clear that a lawful alien may not be deprived of
liberty without due process, Matthews v. Diaz, 426 U.S. 67, 77
(1976), a petitioner cannot mount a due process claim without first
showing that he has a protected liberty or property interest at
stake, Board of Regents of State Colls. v. Roth, 408 U.S. 564, 569-
70 (1972). We have “held that discretionary statutory ‘rights’ do
not create liberty or property interests protected by the Due
Process Clause” and that the right to suspension of deportation is
just such a discretionary right. Smith v. Ashcroft, 295 F.3d 425,
430 (4th Cir. 2002).
As we find that there is no protected right at issue, there
can be no due process violation here. There must be entitlement to
a benefit to constitute a protected right, in contrast to a
12
discretionary benefit, and here, the benefit in question is
adjustment of status which is discretionary in nature. See id. at
430. Mr. Peter argues that the immigration judge violated his due
process rights when he initially scheduled a hearing on his motions
and then cancelled it after finding out that Mr. Peter had lied
about his solicitation arrest. This argument fails because it
ignores the threshold requirement that there be a protected right
at issue. Our precedent dictates that a discretionary right does
not give rise to a due process claim. See id. at 425. Therefore,
we hold that Mr. Peter has no due process claim.
III.
In conclusion, we hold that the immigration judge was within
his authority to deny Mr. Peter’s motions and that there was no due
process violation.2 It is hereby ordered that the order of the
Board of Immigration Appeals is
AFFIRMED.
2
In so concluding we recognize that further recourse remains
open to the Peters. As the government acknowledged during oral
argument, the Peters may still petition for relief from the
Attorney General. Given the unique medical needs of their
daughter, we are confident that the government will give due
consideration to their request for relief.
13