Diarra v. Gonzales

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
June 2, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
____________________ Clerk
No. 04-60097
____________________
IDRISSA DIARRA
Petitioner
v.
ALBERTO R GONZALES, U S ATTORNEY GENERAL
Respondent
_________________________________________________________________
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A75 221 863
_________________________________________________________________
Before KING, Chief Judge, and BARKSDALE and STEWART, Circuit
Judges.
PER CURIAM:*
Petitioner Idrissa Diarra, a citizen and native of Guinea,
was found to be a removable alien by a United States immigration
court in 2001. Subsequently, the Board of Immigration Appeals
affirmed this decision. Diarra now petitions for review of the
decision of the Board of Immigration Appeals, arguing that: (1)
he was improperly classified as an “arriving alien”; (2) his
request for a continuance to pursue his adjustment of status
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
application was improperly denied; and (3) his request for
cancellation of removal should have been granted. For the
following reasons, we DISMISS in part and DENY in part the
petition.
I. FACTUAL AND PROCEDURAL BACKGROUND
Diarra entered the United States for the first time in 1989
as a nonimmigrant visitor. He overstayed his visa and, on April
9, 1996, applied for an adjustment of status with the Immigration
and Naturalization Service (“INS”).1 While his application was
pending, Diarra left the United States on two occasions, both
pursuant to an authorization of advance parole from the INS.
First, he was out of the country from October 10, 1996 until
January 30, 1997. Second, he was out of the country from July
29, 1997 until April 25, 1998. The I-512 advance parole document
that Diarra received from the INS stated:
Subject has application for “permanent residence” pending
in the Houston District Office. Note: This authorization
will permit you to resume your application for adjustment
of status on your return to the United States.
While Diarra was out of the country, the INS invited him on
three occasions to an adjustment interview. He claims not to
have received the invitations, and he did not respond to them.
Accordingly, his application for adjustment of status was denied.
1
The INS ceased to exist on March 1, 2003, and the
Department of Homeland Security now performs its functions. Since
the events relevant to Diarra’s petition occurred before the INS’s
dissolution, we will refer to the agency as the “INS.”
2
Subsequently, on May 15, 2001 (after Diarra had returned to the
United States for the second time), the INS served him with a
Notice to Appear (“NTA”) that charged him with being an arriving
alien subject to removal. On May 18, 2001, the INS commenced
removal proceedings against Diarra in Houston.
On November 20, 2001, a removal hearing was held in Houston
immigration court. At the hearing, Diarra denied being an
“arriving alien” but admitted to having no valid entry document.
The immigration court held that Diarra was removable. Diarra
then filed a motion asking that the proceedings be continued
because his new wife, a lawful permanent resident whom he married
twelve days before the hearing, had filed an I-130 visa petition
on his behalf.2 Because the immigration judge found Diarra to be
an arriving alien, it held that he could not apply for an
adjustment of status and, accordingly, denied his request for a
continuance.
At a subsequent hearing on January 29, 2002, Diarra asked
the immigration court for permission to apply for cancellation of
removal.3 On August 26, 2002, Diarra testified in support of his
2
This was Diarra’s second marriage. His first marriage
was the subject of his previous adjustment of status application
that was denied.
3
The Attorney General has discretion to cancel a non-
permanent resident’s removal if the alien demonstrates: (1) ten
years of continuous presence; (2) good moral character; (3) a lack
of certain criminal convictions; and (4) exceptional and extremely
unusual hardship to a qualifying relative. 8 U.S.C.
§ 1229b(b)(2000).
3
request for cancellation. The immigration judge denied his
application, finding that Diarra had failed to establish: (1) ten
years of physical presence in the United States (because of his
two absences); and (2) an exceptional and extremely unusual
hardship to a qualifying relative. Diarra was then granted a
voluntary departure, and he appealed the immigration judge’s
decision to the Board of Immigration Appeals (“BIA”).
On January 14, 2004, the BIA, without issuing a written
opinion, affirmed the immigration judge’s decision. Diarra
subsequently filed the instant petition for review.
II. STANDARD OF REVIEW
“Although this Court generally reviews decisions of the BIA,
not immigration judges, it may review an immigration judge’s
decision when, as here, the BIA affirms without additional
explanation.” Moin v. Ashcroft, 335 F.3d 415, 418 (5th Cir.
2003). “[T]his Court must affirm the decision if there is no
error of law and if reasonable, substantial, and probative
evidence on the record, considered as a whole, supports the
decision’s factual findings.” Id.III. ANALYSIS
A. Diarra’s Designation As an “Arriving Alien”
Diarra first argues that he should not have been classified
as an “arriving alien” because his travel was pursuant to a grant
of advance parole. Diarra notes that his I-512 states that he
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had an application for adjustment of status pending, and it
explicitly permitted him to resume his application upon his
return to the United States. Thus, he argues that this advance
parole document authorized him to take back the status he left
when he applied for parole and to resume his adjustment
application. Diarra also invites this court’s attention to Joshi
v. Immigration and Naturalization Service, 720 F.2d 799, 803-04
(4th Cir. 1983). Diarra states that the petitioner in Joshi,
like Diarra, entered the United States lawfully as a
nonimmigrant, filed an adjustment of status application, and
traveled out of the country pursuant to a grant of advance
parole. According to Diarra, the Fourth Circuit held that Joshi
was not an “arriving alien” when he returned to the United
States. Diarra argues that this court should similarly find that
he is not an “arriving alien.”
Diarra was clearly an “arriving alien.” Under 8 C.F.R.
§ 1.1(q):
The term arriving alien means an applicant for admission
coming or attempting to come into the United States at a
port-of-entry, or an alien seeking transit through the
United States at a port-of-entry, or an alien interdicted
in international or United States waters and brought into
the United States by any means, whether or not to a
designated port-of-entry, and regardless of the means of
transport. An arriving alien remains such even if paroled
pursuant to section 212(d)(5) of the [INA], except that
an alien who was paroled before April 1, 1997, or an
alien who was granted advance parole which the alien
applied for and obtained in the United States prior to
the alien's departure from and return to the United
States, shall not be considered an arriving alien for
purposes of section 235(b)(1)(A)(i) of the [INA].
5
Because Diarra was last paroled into the country after April 1,
1997, and because § 235(b)(1)(A)(i) of the INA (providing for
expedited removal) is not at issue in this case, Diarra falls
within the definition of an “arriving alien.” See id. Diarra’s
reliance on Joshi for a contrary result is misplaced. First,
Joshi is not binding precedent in this circuit. Second, Joshi
was decided over twenty years ago, more than a decade before the
enactment of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (“IIRIRA”). In Joshi, the Fourth
Circuit applied the Fleuti doctrine, under which an alien is not
considered to have “entered” the United States, pursuant to the
former 8 U.S.C. § 1101(a)(1), if his departure from the United
States was an “innocent, casual, and brief excursion.” See
Joshi, 720 F.2d at 801; see also Rosenberg v. Fleuti, 374 U.S.
449, 462 (1963). The IIRIRA, however, replaced the term “entry”
with the terms “admission” and “admitted,” which are defined as:
with respect to an alien, the lawful entry of the alien
into the United States after inspection and authorization
by an immigration officer. (B) An alien who is paroled
under section 212(d)(5) . . . shall not be considered to
have been admitted.
8 U.S.C. § 1101(a)(13)(A), (B); see also Zalawadia v. Ashcroft,
371 F.3d 292, 294-95 & n.3. Thus, under the law as it now
exists, Diarra, who was paroled into the United States, is by
definition an “arriving alien.” See 8 U.S.C. § 1101(a)(13)(A); 8
C.F.R. § 1.1(q). Accordingly, the immigration court’s
6
determination that Diarra was an “arriving alien” was supported
by substantial evidence, and Diarra’s petition is denied insofar
as it pertains to his classification as an “arriving alien.”
B. Diarra’s Motion for a Continuance
Diarra next argues that it was error for the immigration
court to deny his request to continue his case to allow the INS
to adjudicate the I-130 Petition for Alien Relative filed by his
new wife. Diarra notes that at the time she filed this
application, she was a lawful permanent resident with a pending
Application for Naturalization. Diarra claims that the
immigration judge wrongly denied him the opportunity to pursue
his application for adjustment of status predicated on this
petition. In support of this argument, he notes that his I-512
advance parole document specifically allowed him to resume his
application for adjustment of status upon his return to the
United States. Additionally, in a supplemental letter brief, he
invites the court’s attention to a recent First Circuit case,
Succar v. Ashcroft, 394 F.3d 8 (1st Cir. 2005), in which the
First Circuit allowed an alien in removal proceedings to apply
for an adjustment of status.
Diarra’s contention that he should have been permitted to
pursue his application for adjustment of status before the
immigration court fails. First, the I-512 advance parole
document provided only that Diarra would be permitted to pursue
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his application for adjustment of status that was pending at the
time he was granted advance parole, i.e., the application based
on his first marriage. See 8 C.F.R. § 245.2(a)(1). This
application, however, had already been denied, and Diarra was not
attempting to renew it before the immigration court. Rather,
Diarra was attempting to pursue a different application for
adjustment of status based upon his second marriage.
Accordingly, his claim that the I-512 allowed him to pursue this
application for adjustment of status fails.
With respect to Diarra’s citation to Succar, we need not
address this argument because it is waived. Under 8 C.F.R.
§ 245.1(c)(8), an arriving alien in removal proceedings is
prohibited from applying for an adjustment of status. In Succar,
the petitioner challenged the validity of § 245.1(c)(8), and the
First Circuit held that § 245.1(c)(8) was invalid. Succar, 394
F.3d at 36. This circuit, however, has not held that
§ 245.1(c)(8) is invalid, and Succar is not binding precedent
here.4 Moreover, unlike the petitioner in Succar, Diarra never
4
The only Fifth Circuit case to mention § 245.1(c)(8) is
Doria v. Ashcroft, No. 03-60383, 2004 WL 1161837, at *1 (5th Cir.
May 25, 2004) (per curiam) (unpublished). In Doria, the court
cited 8 C.F.R. § 245.1(c)(8) and held that “[b]ecause Doria’s
second adjustment application was not filed until after he had been
paroled into the United States and removal proceedings had been
instituted, the [immigration judge] was correct in concluding that
he was not permitted to renew his adjustment application . . . .”
Doria, 2004 WL 1161837, at *1. Similarly, again citing
§ 245.1(c)(8), the court stated that Doria “is ineligible for
adjustment of status as a result of his status as an arriving alien
in removal proceedings.” Id. at *2.
8
challenged the validity of § 245.1(c)(8) before the immigration
court or in his petition for review to this court. In fact,
Diarra never mentioned § 245.1(c)(8) in his petition for review.
After briefing was completed in this case, the government
requested the opportunity to address Succar in a supplemental
letter brief. Only then did Diarra, in a supplemental letter
brief of his own, claim that § 245.1(c)(8) is invalid. However,
under FED. R. APP. P. 28(a)(9)(A), an appellant’s brief must
contain the “appellant’s contentions and the reasons for them,
with citations to the authorities and parts of the record on
which the appellant relies.” Likewise, we have consistently held
that issues that are not clearly designated in the appellant’s
initial brief are normally deemed abandoned. See St. Paul
Mercury Ins. Co. v. Williamson, 224 F.3d 425, 445 (5th Cir. 2000)
(“Generally, we deem abandoned those issues not presented and
argued in an appellant’s initial brief, nor do we consider
matters not presented to the trial court.”). Thus, because
Diarra did not challenge § 245.1(c)(8) in his petition for
review, we consider his challenge waived.5 Accordingly, the
5
Additionally, as the government notes, Diarra was not
even prima facie eligible for an adjustment of status based upon
his second marriage because: (1) the visa petition had not been
approved by the INS; and (2) even if the visa petition had been
approved, no immigrant visa was “immediately available” to him.
This follows from the fact that his new wife was only a lawful
permanent resident, not a U.S. citizen, and any visa petition she
filed would be subject to the numerical limitations of preference
visas. See 8 U.S.C. §§ 1151(b)(2)(A)(i) & 1153. Because 8 U.S.C.
§ 1255(a) states that an alien is only eligible for an adjustment
9
immigration court’s denial of Diarra’s request for a continuance
to pursue his adjustment of status application was supported by
substantial evidence, and Diarra’s petition with respect to his
request for a continuance is denied.
C. Diarra’s Request for Cancellation of Removal
Finally, Diarra contends that the immigration court erred
when it denied his request for cancellation of removal. First,
he contends that the immigration court erred in finding that he
lacked ten years of continuous physical presence in the United
States, which is a requirement for the cancellation of removal.
See 8 U.S.C. § 1229b(b). Diarra notes that § 1229b(b) states
that an alien shall be considered to have failed to maintain
physical presence in the United States if he has departed the
United States for a single period that exceeds ninety days or for
any periods that, in the aggregate, total 180 days. Diarra
argues, however, that the statute is silent with respect to
absences pursuant to a grant of advance parole. He also states
that his two absences were compelled by extenuating circumstances
(i.e., his father’s sickness and death) and were both pursuant to
a grant of advance parole. According to Diarra, he should not be
punished for his departures because of the grant of advance
parole.
of status if “an immigrant visa is immediately available to him at
the time his application is filed[,]” Diarra was not prima facie
eligible for an adjustment of status.
10
Second, Diarra states that the immigration court erred in
finding that he did not meet the threshold for the exceptional
and extremely unusual hardship requirement for cancellation of
removal. Diarra argues that this court can review this element
of a cancellation of removal claim because it is a legal
question, not a discretionary determination. He then contends
that he has recently been married and has two stepchildren.
According to Diarra, one of his stepchildren has lived his entire
life in the United States and the other needs Diarra’s help
(e.g., to translate his homework from French to English). Diarra
claims that returning his stepchildren to Africa would result in
a psychological hardship, and he accordingly argues that he has
met the “exceptional and extremely unusual hardship” prong.
This court does not have jurisdiction to address Diarra’s
arguments regarding his request for a cancellation of removal.
This follows from the fact that his request for cancellation of
removal was pursuant to 8 U.S.C. § 1229b(b). Section
1252(a)(2)(B) of Title 8 of the United States Code provides:
Notwithstanding any other provision of law, no court
shall have jurisdiction to review--
(i) any judgment regarding the granting of relief under
section 1182(h), 1182(i), 1229b, 1229c, or 1255 of this
title, or
(ii) any other decision or action of the Attorney General
the authority for which is specified under this
subchapter to be in the discretion of the Attorney
General, other than the granting of relief under section
1158(a) of this title.
11
8 U.S.C. § 1252(a)(2)(B) (emphasis added). Because the removal
proceedings in this case commenced after the effective date of
these statutory restrictions on judicial review (April 1, 1997),
§ 1252(a)(2)(B) is applicable to the present case. This
provision eliminates jurisdiction over decisions involving the
exercise of discretion, as opposed to legal or non-discretionary
questions. Mireles-Valez v. Ashcroft, 349 F.3d 213, 216 (5th
Cir. 2003). This court has held that an immigration court’s
determination as to the “exceptional and extremely unusual
hardship” prong of § 1229b involves the exercise of discretion.
Rueda v. Ashcroft, 380 F.3d 831 (5th Cir. 2004). In Rueda, this
court stated that it lacked jurisdiction to address the
petitioner’s claim that the immigration court erred in finding
that the petitioner had failed to demonstrate the requisite
hardship for cancellation. Id. at 831. Accordingly, Diarra’s
petition, insofar as it regards a challenge to the hardship
determination, is dismissed for lack of jurisdiction.
Additionally, this court need not consider Diarra’s argument
regarding physical presence because even if he satisfies the
physical presence requirement, this court lacks jurisdiction to
review the discretionary determination that he failed to meet the
hardship requirement. Romero-Torres v. Ashcroft, 327 F.3d 887,
892 (9th Cir. 2003) (holding that because the court lacked
“jurisdiction to review the BIA’s discretionary determination
that an alien failed to satisfy the ‘exceptional and extremely
12
unusual hardship’ requirement for cancellation of removal,” it
would not consider the petitioner’s challenge to the court’s
finding regarding a lack of physical presence); Morales Ventura
v. Ashcroft, 348 F.3d 1259, 1262 (10th Cir. 2003) (holding that
because the court lacked jurisdiction to review the petitioner’s
hardship challenge, her challenge regarding her continuous
presence became moot).
IV. CONCLUSION
For the foregoing reasons, the petition for review is
DISMISSED for lack of jurisdiction insofar as it pertains to
Diarra’s cancellation of removal claim. The petition is DENIED
in all other respects.
13