Consuelo Solis v. Eric Holder, Jr.

NOT RECOMMENDED FOR PUBLICATION
File Name: 12a0819n.06
No. 11-3858
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Jul 30, 2012
CONSUELO OLIMPIA SOLIS, )
) LEONARD GREEN, Clerk
Petitioner, )
) ON PETITION FOR REVIEW
v. ) FROM THE UNITED STATES
) BOARD OF IMMIGRATION APPEALS
ERIC H. HOLDER, JR., Attorney General, )
)
Respondent. )
Before: COOK and STRANCH, Circuit Judges; STAMP, District Judge.*
COOK, Circuit Judge. Consuelo Olimpia Solis (“Solis”) petitions for review of the Board
of Immigration Appeals’ (“BIA”) affirmance of an Immigration Judge’s (“IJ”) decision denying her
application for special rule cancellation of removal under Section 203 of the Nicaraguan Adjustment
and Central American Relief Act of 1997 (“NACARA”), Pub. L. No. 105-100, 111 Stat. 2160
(1997), as amended by Pub. L. No. 105-139, 111 Stat. 2644 (1997). Because we lack jurisdiction
to review the BIA’s decision, we dismiss this appeal. To the extent we have jurisdiction over
questions of law raised by Solis, we deny her petition for review.
*The Honorable Frederick P. Stamp, Jr., Senior United States District Judge for the Northern District
of West Virginia, sitting by designation.
No. 11-3858
Solis v. Holder
I.
Solis is a native and citizen of Guatemala who entered the United States without admission
or inspection in February 1990. In 2003, the government initiated removal proceedings against Solis
by filing a Notice to Appear in immigration court charging her with removability as an alien living
in the United States without admission or parole. See 8 U.S.C. § 1182(a)(6)(A)(i). Solis appeared
before an IJ, admitted the factual allegations in the notice, and conceded removability. In an effort
to remain in the United States, however, Solis applied for asylum, withholding of removal,
protection under the Convention Against Torture (“CAT”), and special rule cancellation of removal.
The IJ denied Solis’s applications, and the BIA affirmed. Solis does not challenge the denial of her
asylum application, withholding of removal or protection under the CAT.
Solis is eligible for special rule cancellation of removal under NACARA § 203 due to her
membership in a class of Guatemalan asylum seekers who filed a lawsuit against the former
Immigration and Naturalization Service (now known as the United States Citizenship and
Immigration Services, or USCIS) claiming unfair adjudications of their asylum applications. See
Am. Baptist Churches v. Thornburgh, 760 F. Supp. 796 (N.D. Cal. 1991). In settling this lawsuit,
the former INS agreed to (1) abstain from deporting any class member (commonly known as an
“ABC class member”) until he had an opportunity to obtain the benefits of the settlement agreement,
(2) provide each class member a de novo asylum interview irrespective of a prior adverse decision,
and (3) provide each class member work authorization while awaiting these interviews. See Am.
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Baptist Churches, 760 F. Supp. at 799–800, 804–06. The former INS delayed the implementation
of the settlement for years, however, and many ABC class members’ asylum claims became stale
as conditions in El Salvador and Guatemala improved. See 145 Cong. Rec. S10944 (daily ed. Sept.
15, 1999) (statement of Sen. Durbin) (“Many victims of severe persecution came to the United States
with very strong asylum cases, but unfortunately these individuals have waited so long for a hearing
they will have difficulty proving their cases because they involve incidents which occurred as early
as 1980.”).
Before 1996, those ABC class members had an alternative recourse: they were eligible for
suspension of deportation under 8 U.S.C. § 1254, which gave the Attorney General discretion to
grant permanent-resident status to an alien who met certain statutory requirements. 8 U.S.C. § 1254,
repealed by Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub.
L. No. 104-208, 110 Stat. 3009 (1996) (codified as amended in scattered sections of 8 U.S.C. and
18 U.S.C.). The IIRIRA replaced suspension of deportation with a much more restrictive form of
immigration relief—cancellation of removal. See 8 U.S.C. § 1229b. To restore the less restrictive
conditions that existed prior to IIRIRA’s enactment for ABC class members, Congress passed
NACARA. See generally Suspension of Deportation and Special Rule Cancellation of Removal for
Certain Nationals of Guatemala, El Salvador, and Former Soviet Bloc Countries, 64 Fed. Reg.
27,856 (May 21, 1999). NACARA § 203 amended IIRIRA, allowing ABC class members to seek
relief from deportation under conditions approximating pre-IIRIRA law. See id. Such relief is called
“special rule cancellation of removal.” Id.
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II.
NACARA’s special rule cancellation of removal is, however, available only to Guatemalan
ABC class members “who registered for benefits pursuant to such settlement agreement on or before
December 31, 1991.” IIRIRA § 309(c)(5)(C)(i)(I)(bb), Pub. L. No. 104-208, 110 Stat. 3009 (1996),
as amended by NACARA § 203, Pub. L. No. 105-100, 111 Stat. 2160 (1997). Further, “[a]
determination by the Attorney General as to whether an alien satisfies the [eligibility requirements
of IIRIRA § 309(c)(5)(C)(i)] is final and shall not be subject to review by any court.” Id.
§ 309(c)(5)(C)(ii). Here, because Solis challenges the BIA’s affirmance of an IJ’s determination that
she failed to timely register for benefits of the settlement agreement, we lack jurisdiction. See, e.g.,
Ruiz v. Gonzales, 455 F.3d 661, 662 (6th Cir. 2006) (per curiam) (dismissing appeal from the BIA’s
affirmance of an IJ’s decision that petitioner failed to timely register for benefits of the ABC
settlement agreement); Argueta v. Holder, 617 F.3d 109, 112 n.2 (2d Cir. 2010) (per curiam)
(acknowledging that the jurisdictional language in IIRIRA § 309(c)(5)(C)(ii) “make[s] unreviewable
by any court a determination by the Attorney General as to whether an alien has satisfied the
statutory requirements for special rule cancellation of removal”); Lanuza v. Holder, 597 F.3d 970,
972 (9th Cir. 2010) (per curiam) (noting that the language in IIRIRA § 309(c)(5)(C)(ii) “expressly
precludes [courts] from reviewing the BIA’s determination of eligibility for NACARA § 203 relief”);
Molina Jerez v. Holder, 625 F.3d 1058, 1069 (8th Cir. 2010) (holding that the court lacked subject
matter jurisdiction to review alien’s eligibility for special rule cancellation of removal).
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We retain jurisdiction over the BIA’s decision only if Solis raises constitutional claims or
questions of law. See 8 U.S.C. § 1252(a)(2)(D) (expressly granting courts of appeal jurisdiction to
review constitutional claims or questions of law notwithstanding other provisions that limit or
eliminate judicial review); Lanuza, 597 F.3d at 972 (“To the extent that we have jurisdiction, it is
pursuant to 8 U.S.C. § 1252.”). Courts consider “the nature of the argument advanced in the
petition” to determine the extent of jurisdiction under 8 U.S.C. § 1252. Molina Jerez, 625 F.3d at
1068 (quoting Purwantono v. Gonzales, 498 F.3d 822, 824 (8th Cir. 2007)) (internal quotation marks
omitted).
III.
Unfortunately for Solis, her argument rises or falls upon a single critical factual
determination: whether she registered for ABC benefits on or before December 31, 1991. Couching
her argument in terms of legal concepts, Solis argues that the BIA’s decision was “manifestly
contrary to the law, . . . inconsistent with the provisions of the ABC settlement agreement,
subsequent court decisions, and further violates the policy memorandums issued by the asylum
division of the U.S. Department of Homeland Security.” She cites Chaly-Garcia v. United States,
508 F.3d 1201 (9th Cir. 2007), and an internal USCIS memorandum to support her position.
Nonetheless, the BIA grounded its decision on a factual assessment:
Despite [Solis’s legal] argument, the respondent testified that she filed her
asylum application in 1992. . . . [T]he respondent was unsure exactly which
application had been filed. In fact, at the hearing, the respondent’s attorney admitted
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Solis v. Holder
that such testimony does not demonstrate that the respondent timely registered for
ABC benefits. Also, the respondent submitted an “Acknowledgement of Receipt”
from the Asylum Office indicating that her request for asylum “was received for
processing on 01/21/92.” Further, although the respondent indicated in the statement
attached to her 2004 asylum application that she applied for asylum in 1991 and
obtained employment authorization in 1992, the employment authorization cards in
the record are dated from 1996, 1997, 1999, and 2003.
(A.R. at 4, BIA Decision) (internal footnote and citations omitted); see also (A.R. at 33–34, IJ Oral
Decision) (“The Court does agree with the Respondent’s counsel that under the USCIS policy as
instituted after the Ninth Circuit decision in Chaly-Garcia, that all tangible evidence and credible
testimony can be considered in making a determination as to whether an individual has registered
for ABC benefits.”). We thus lack jurisdiction to review the BIA’s decision.
Solis nevertheless contends that the BIA used an incorrect legal standard in adjudging her
case. Because she completed her asylum application form before December 31, 1991, she argues,
the law compelled the BIA to find that she timely registered for benefits. “An argument that the
agency applied an erroneous legal standard raises a question of law and invokes [courts of appeal’s]
jurisdiction.” Leonard-Santana v. U.S. Dep’t of Justice, 251 F. App’x 12, 14 (2d Cir. 2007) (citing
Khan v. Gonzales, 495 F.3d 31, 35 (2d Cir. 2007)). We note that the USCIS policy memorandum
includes similar mandatory language:
Pursuant to the Ninth Circuit’s findings, . . . a Guatemalan or Salvadoran national,
who affirmatively filed an I-589 application on or after the date the court
provisionally approved the Settlement Agreement and prior to the conclusion of the
designated registration period, has indicated the intent to receive ABC benefits under
the Settlement Agreement and therefore should be considered “registered.”
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U.S. Citizenship & Immigration Services, HQRAIO 120/9.10a, Making ABC Registration
Determinations, Chaly-Garcia v. U.S., 508 F.3d 1201 (9th Cir. 2007), at 2 (2008) (emphases added).
Even applying the standard set forth in the USCIS memorandum, we remain unconvinced that
completing an asylum application form equates to filing to qualify for the statutory benefit. An
asylum seeker files his application “on the date it is received by the Service” or on the date he mails
the application if the Service did not receive the application on time—provided, however, that he
can “provide[] clear and convincing documentary evidence of mailing the application” within the
filing deadline. 8 C.F.R. § 208.4(a)(2)(ii). Here, the government received Solis’s application after
December 31, 1991, and she provides no evidence of timely mailing her application. See (A.R. at
558, Document Listing Solis’s I-589 Receipt Dated January 21, 1992 as Evidence of her Asylum
Application); (A.R. at 617, Government Receipt of Solis’s Asylum Application Dated January 21,
1992). Therefore, the BIA did not apply an erroneous legal standard.
IV.
For these reasons, we DISMISS this appeal. To the extent we have jurisdiction, we DENY
the petition for review and VACATE the removability stay.
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