Ali, Mirwais v. Ashcroft, John

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 02-3761 & 03-3112
MIRWAIS ALI,
Petitioner,
v.
JOHN D. ASHCROFT, Attorney General
of the United States,1
Respondent.
____________
Petitions for Review of Orders of
the Board of Immigration Appeals.
No. A25-355-167
____________
ARGUED FEBRUARY 25, 2004—DECIDED JANUARY 11, 2005
____________
Before EASTERBROOK, ROVNER, and WILLIAMS, Circuit
Judges.
WILLIAMS, Circuit Judge. Mirwais Ali, a native and citi-
zen of Afghanistan, came to the United States at the age of
three. At eighteen, Ali had several encounters with the law
1
We substitute Attorney General John Ashcroft as the proper
respondent to the petition in case no. 02-3761. See 8 U.S.C.
§ 1252(b)(3)(A). Case number 03-3112 correctly listed John Ashcroft
as the Respondent.
2 Nos. 02-3761 & 03-3112
resulting in three state convictions, which triggered removal
proceedings by the immigration authorities. For the reasons
discussed below we find that the Child Citizenship Act of
2000 does not apply retrospectively and thus does not
provide Ali any relief. We also find that although Ali’s
felony conviction was vacated and reduced to a misdemeanor
by the Wisconsin state courts, it was reasonable for the Board
of Immigration Appeals (“BIA”) to hold that Ali’s vacated
felony remains a felony for immigration purposes. Also, we
conclude that the BIA’s denial of Ali’s Convention Against
Torture (“CAT”) claim was supported by substantial evi-
dence. Finally, we find that Ali has no liberty or property
interest in the discretionary relief he sought—in this case
cancellation of removal. Therefore we lack jurisdiction to
review his due process claim. Thus, we affirm the Immigra-
tion Judge’s citizenship determination, the BIA’s Conven-
tion Against Torture determination, and the BIA’s denial of
Ali’s motion to reconsider. And we dismiss Ali’s withholding
of removal claim for lack of jurisdiction.
I. BACKGROUND
Ali was born in Afghanistan in 1979, immigrated with his
parents to the United States at the age of three, and was
granted lawful permanent resident status on March 1,
1982. Ali’s mother became a U.S. citizen in 1991, when Ali
was still a minor. Since 1982, Ali has resided in the United
States and has not left the country. He does not speak any
of the native languages of Afghanistan nor does he have any
family or friends there.
As a teenager, Ali was convicted of various offenses in
Wisconsin state court: receiving stolen property (1997),
possession with intent to distribute tetrahydrocannabinol
(“THC”), the active ingredient in marijuana (1998), and re-
ceiving stolen property (2000). Following these convictions,
what was then the Immigration and Naturalization Service
Nos. 02-3761 & 03-3112 3
(“INS”) initiated removal proceedings against Ali. In his
Notice to Appear, the INS claimed Ali was removable under
the Immigration and Nationality Act (“INA”), for having
been convicted, after admission to the United States, of: (1)
an aggravated felony relating to illicit trafficking of a con-
trolled substance; (2) a controlled substance offense “other
than a single offense involving possession of one’s own use
of 30 grams or less of marijuana”; and (3) “two crimes in-
volving moral turpitude not arising out of a single scheme
of criminal misconduct.” He was taken into INS custody in
November 2001 and has remained in detention since that
time.
Ali made several claims to defeat removal. On May 16,
2002, the Immigration Judge (“IJ”) denied all of Ali’s appli-
cations for relief, making the following findings: (1) he was
not a U.S. citizen under the Child Citizenship Act of 2000
(“CCA”); (2) having been convicted of an aggravated felony,
possession with intent to distribute THC, he was statutorily
ineligible for cancellation of removal; (3) he was also
statutorily ineligible for asylum because his felony con-
viction constitutes a “particularly serious crime”; (4) his
conviction for a particularly serious crime also precluded his
eligibility for withholding of removal; and (5) he had not
made out a claim for relief under CAT. Finding that Ali
failed to designate a country of removal, the IJ ordered Ali
removed to Afghanistan. The IJ also stated that if the
Wisconsin state court would vacate or modify Ali’s felony
drug conviction to the misdemeanor of mere possession, Ali
could avoid removal by filing a motion to reopen consider-
ation of his case to apply for cancellation of removal. The
BIA affirmed the IJ’s decision without opinion on
September 27, 2002.
On March 7, 2003, the Dane County Circuit Court of
Wisconsin entered an order amending Ali’s felony conviction
of possession with intent to deliver THC to “simple misde-
meanor Possession of THC.” On May 2, 2003, Ali filed with
4 Nos. 02-3761 & 03-3112
the BIA a motion to reopen his removal proceedings to
present a cancellation of removal claim based upon the
Wisconsin state court’s amendment of his conviction. On
May 21, 2003, the BIA denied Ali’s motion as untimely. On
June 12, 2003, Ali filed a motion to reconsider the Board’s
May 21 decision. On July 28, 2003, the BIA denied the
motion for reconsideration, applying its June 11, 2003
ruling in Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003)
to conclude that, despite the modification of his sentence to
a misdemeanor, Ali remained convicted of an aggravated
felony for immigration purposes and was statutorily ineli-
gible to apply for cancellation from removal. Ali now appeals
the following decisions: (1) the IJ’s citizenship determina-
tion under the CCA, affirmed by the BIA without opinion;
(2) the IJ’s denial (also affirmed by the BIA without opinion)
of Ali’s petition for withholding of removal and his claim for
relief under CAT; and (3) the BIA’s denial of Ali’s motion to
reconsider.
II. ANALYSIS
A. Child Citizenship Act of 2000
Ali claims that he cannot be removed from the United
States because he is a U.S. citizen under the Child Citizen-
ship Act of 2000, Pub. L. No. 106-395, § 101(a), 114 Stat.
1631 (2000), codified at 8 U.S.C. § 1431(a). We must decide
the nationality claim when no “genuine issue of material
fact about the petitioner's nationality is presented.” 8
U.S.C. § 1252(b)(5)(A); Gomez-Diaz v. Ashcroft, 324 F.3d
913, 915 (7th Cir. 2003). We review legal issues presented
in such claims de novo but defer to the BIA’s factual findings,
reversing them only if they lack the support of substantial
evidence in the record. Gomez-Diaz, 324 F.3d at 915. Because
the BIA affirmed the IJ’s citizenship determination without
opinion, the IJ’s opinion becomes the basis of our review.
Vladimirova v. Ashcroft, 377 F.3d 690, 695 (7th Cir. 2004);
Ememe v. Ashcroft, 358 F.3d 446, 450 (7th Cir. 2004).
Nos. 02-3761 & 03-3112 5
The CCA changed the way in which children of non-
American citizens born outside the United States become
eligible for citizenship. It amended § 320 of the INA and
grants automatic American citizenship to children who are
born outside of the United States when the following three
conditions have been met: (1) at least one parent of the
child is a citizen of the United States, whether by birth or
naturalization; (2) the child is under the age of eighteen
years; and (3) the child is residing in the United States in
the legal and physical custody of the citizen parent pursu-
ant to a lawful admission for permanent residence. 8 U.S.C.
§ 1431(a).
Section 104 of the new law provides that this amendment
“shall take effect 120 days after the date of the enactment
of this Act and shall apply to individuals who satisfy the
requirements of section 320 . . . of the Immigration and
Nationality Act, as in effect on such effective date.” Pub. L.
No. 106-395, Title I, § 104, 114 Stat. 1633 (2000). As the
CCA was signed by the President on October 30, 2000, the
amendments became effective on February 27, 2001. We
have construed the CCA not to apply retrospectively, see
Dave v. Ashcroft, 363 F.3d 649, 654 (7th Cir. 2004); Gomez-
Diaz, 324 F.3d at 916. The BIA and other circuits have also
construed the CCA in this fashion. See, e.g., In Re
Rodriguez-Tejedor, 23 I. & N. Dec. 153 (BIA 2001); Drakes
v. Ashcroft, 323 F.3d 189, 191 (2d Cir. 2003). Therefore,
even though Ali’s mother is a U.S. citizen, Ali does not qua-
lify for automatic citizenship under the CCA because he
was over the age of eighteen on February 27, 2001, the
CCA’s effective date. Dave, 363 F.3d at 654; Gomez-Diaz,
324 F.3d at 916. The CCA thus does not protect Ali against
removal.
B. Withholding of Removal
Ali also seeks review of his denied withholding of removal
claim. As indicated in his Notice to Appear, Ali was deemed
6 Nos. 02-3761 & 03-3112
removable under the INA for having been convicted, after
admission to the United States, of an aggravated felony.
Specifically, Ali was convicted of a felony relating to the
illicit trafficking of a controlled substance under INA
§ 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii); a controlled
substance offense under INA § 237(a)(2)(B)(i), 8 U.S.C.
§ 1227(a)(2)(B)(i); and two crimes involving moral turpitude
not arising out a single scheme of criminal misconduct un-
der INA § 237(a)(2)(A)(ii), 8 U.S.C. § 1227(a)(2)(A)(ii).
Before we may review the BIA’s denial of Ali’s request for
withholding of removal, however, we must first determine
whether we have jurisdiction to do so. Section 1252(a)(2)(C) of
Title 8 of the United States Code strips us of jurisdiction
to review a final order of removal against an alien who is
removable by virtue of having committed certain criminal
offenses. However, that provision does not bar our juris-
diction to determine our jurisdiction. We also have jurisdic-
tion to determine whether an alien “is being removed for a
permissible reason.” Bosede v. Ashcroft, 309 F.3d 441, 445
(7th Cir. 2002). See also Sandoval v. INS, 240 F.3d 577, 580
(7th Cir. 2001). Therefore, we first examine Ali’s criminal
offenses. Second, we analyze whether the criminal offenses
preclude Ali’s statutory eligibility for withholding of
removal.
As the BIA affirmed the IJ decision without opinion, we
review the IJ’s ruling denying Ali withholding of removal as
the final agency decision. Vladimirova, 377 F.3d at 695. We
review the IJ decision under the substantial evidence
standard, which requires us to affirm the decision if it is
“supported by reasonable, substantial, and probative evi-
dence on the record considered as a whole.” Ememe, 358
F.3d at 450-51. The IJ found that Ali’s Wisconsin conviction
for possession with intent to distribute THC constituted “il-
licit trafficking in a controlled substance” or a “drug traf-
ficking crime.” Consequently, the IJ regarded Ali as an
“aggravated felon” which under 8 U.S.C. § 1227(a)(2)(A)(iii)
Nos. 02-3761 & 03-3112 7
rendered him deportable. Ali claims that he is no longer an
aggravated felon, because Wisconsin amended his convic-
tion from a felony to a simple misdemeanor. However, after
Ali’s later appeal to the BIA on a motion to reconsider
(which we will discuss in a moment), the Board concluded
in its July 28, 2003 opinion that although Wisconsin modi-
fied Ali’s conviction from a felony of possession with intent
to distribute THC to a misdemeanor for simple possession
of THC, Ali remained convicted of an aggravated felony for
immigration purposes. The BIA relied on Matter of Pickering,
23 I. & N. Dec. 621 for its decision. In Pickering, the BIA
ruled that if a court vacates an alien’s conviction for reasons
solely related to rehabilitation or immigration hardships, as
opposed to responding to procedural or substantive defects
in the underlying criminal proceedings, then the alien
remains “convicted” for immigration purposes. Id. at 624.
While we give deference to the BIA’s interpretation of the
statutes it administers, Marquez v. I.N.S., 105 F.3d 374, 378
(7th Cir. 1997) (citing Chevron U.S.A., Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984)),
we apply de novo review to the legal question of whether
Ali’s criminal acts constitute an aggravated felony under
federal law. Guerrero-Perez v. I.N.S., 242 F.3d 727, 730 (7th
Cir. 2001). Title 8 U.S.C. § 1101(a)(43)(B) includes in its
definition of aggravated felony “illicit trafficking in a con-
trolled substance (as defined in section 802 of Title 21),
including a drug trafficking crime (as defined in section
924(c) of Title 18).” Section 924(c) of Title 18 of the United
States Code in turn defines “drug trafficking crime” as “any
felony punishable under the Controlled Substances Act (21
U.S.C. § 801 et seq.). . . .” 18 U.S.C. § 924(c)(2). Thus, a state
conviction for possession of a controlled substance with
intent to deliver is both a drug trafficking crime and an
aggravated felony under the INA if it is punishable under
the Controlled Substances Act (“CSA”) and qualifies as a
felony. The CSA regards THC as a controlled substance, 21
8 Nos. 02-3761 & 03-3112
U.S.C. § 812, Schedule I subsection (c)(17), and clearly
prohibits its possession with the intent to distribute. See 8
U.S.C. § 841(a).
We now turn to whether possession with intent to deliver
THC is a felony under federal law. The CSA defines “felony”
as “any Federal or State offense classified by applicable
Federal or State law as a felony.” 21 U.S.C. § 802(13); see also
21 U.S.C. § 802(44) (defining “felony drug offense” as “an of-
fense punishable by imprisonment for more than one year
under any law of the United States or of a State . . . that
prohibits or restricts conduct relating to narcotic drugs, mari-
huana, or depressant or stimulant substances”). Pursuant
to a plea of nolo contendere, Ali was convicted of possession
of 200 grams or less of THC with intent to deliver, in vio-
lation of Wisconsin Statute § 961.41(1m)(h)(1). A violation
of this statute is a Class I felony under Wisconsin law. Be-
cause of Ali’s prior conviction for receiving stolen property
in violation of Wisconsin Statute § 943.34(1)(a), Ali was
eligible for an enhanced sentence of not more than three years
under Wisconsin Statute § 939.62(1)(a) as a repeat offender.
Therefore, Ali’s Wisconsin conviction for possession with
intent to deliver fits the federal definition for a drug traf-
ficking crime and aggravated felony.
There still remains the question of what effect Wisconsin’s
amendment of Ali’s felony conviction should have on his
immigration status. As resolution of this question involves
our review of the BIA’s interpretation of the statutes it ad-
ministers, under Chevron, we must first determine whether
Congress has spoken directly on the issue before us, and if
so, whether congressional intent on that issue is clear. 467
U.S. at 842. In Pickering, the BIA interpreted the INA’s
definition of “convicted,” which the INA defines as follows:
The term “conviction” means, with respect to an alien,
a formal judgment of guilt of the alien entered by a
court, or if adjudication has been withheld,
Nos. 02-3761 & 03-3112 9
where—. . . (i) a judge or jury has found the alien
guilty or the alien has entered a plea of guilty or
nolo contendere or has admitted sufficient facts to
warrant a finding of guilt, and (ii) the judge has or-
dered some form of punishment, penalty, or re-
straint on the liberty to be imposed.
8 U.S.C. § 1101(a)(48)(A). The parties have not directed us
to a federal statute describing the effect a conviction modi-
fied to avoid immigration hardships should have on depor-
tation proceedings, nor have we identified any on our own;
therefore, we must determine whether the “agency’s answer
is based on a permissible construction of the statute,” id. at
843, remembering that “a court may not substitute its own
construction of a statutory provision for a reasonable
interpretation made by the administrator of an agency,” id.
at 844.2 We agree with the holdings of several of our sister
circuits on this issue and consequently do not find the BIA’s
reading of 8 U.S.C. § 1101(a)(48)(A) to be unreasonable. See
Renteria-Gonzales v. I.N.S., 322 F.3d 804, 812-13 (5th Cir.
2002) (holding that a vacated federal conviction remained
valid for immigration purposes);3 Beltran-Leon v. I.N.S., 134
2
Recall that Pickering held that if a court vacates an alien’s
conviction for rehabilitation purposes or to avoid deportation, the
alien remains convicted for immigration purposes.
3
In his concurrence in Renteria-Gonzalez, Judge Benavides noted
that applying the majority’s holding to federal and state convic-
tions vacated on the merits, such as for insufficient evidence or a
guilty plea made involuntarily, would result in a perverse
outcome. Renteria-Gonzalez, 322 F.3d at 822. See also Discipio v.
Ashcroft, 369 F.3d 472, 473-75 (5th Cir. 2004). As Ali’s state
conviction was not vacated because it was procedurally or sub-
stantively defective, we only cite Renteria-Gonzalez for the nar-
rower proposition that convictions vacated simply to avoid
deportation remain valid convictions for immigration purposes.
(continued...)
10 Nos. 02-3761 & 03-3112
F.3d 1379, 1380-81 (9th Cir. 1998) (holding that a state
conviction vacated solely to avoid deportation and the
subsequent hardship to alien’s family remained a conviction
for deportation purposes); Zaitona v. I.N.S., 9 F.3d 432, 436-
37 (6th Cir. 1993) (finding a federal conviction vacated to
avoid deportation would not be recognized for immigration
purposes). See also Gill v. Ashcroft, 335 F.3d 574, 578 (7th
Cir. 2003) (finding a state conviction dismissed pursuant to
state rehabilitative statutory scheme, and not because of any
procedural or substantive defect in the conviction, remained
a conviction for immigration purposes).
As the BIA’s reading of 8 U.S.C. § 1101(a)(48)(A) is not un-
reasonable, we must defer to it, Guerrero-Perez, 242 F.3d at
730; Marquez, 105 F.3d at 378, as we have done elsewhere,
see, e.g., Sandoval, 240 F.3d at 584 (relying on BIA rulings
Matter of Kaneda, 16 I. & N. Dec. 677 (BIA 1979) and
Matter of O’Sullivan, 10 I. & N. Dec. 320, Interim Decision,
1963 WL 12324 (BIA 1963) to hold that an alien whose
conviction had been modified because of ineffective assis-
tance of counsel at the plea stage did not remain convicted
for immigration purposes).
The BIA’s Pickering decision is fatal to Ali’s request for
relief from removal. Ali’s conviction satisfies the two prongs
of the federal definition of conviction as outlined in 8 U.S.C.
§ 1101(a)(48)(A). The two prongs within 8 U.S.C.
§ 1101(a)(48)(A) are: (1) that Ali entered a guilty or nolo
contendere plea; and (2) that the judge ordered some form
of punishment. Ali pleaded no contest to the possession of
3
(...continued)
Citing Renteria- Gonzalez for the broader proposition that a
conviction vacated for any reason, including a procedural or
substantive defect, remains a conviction under immigration law
would run counter to our opinion in Sandoval. See discussion infra
pp. 17-18.
Nos. 02-3761 & 03-3112 11
THC with intent to deliver charge. In addition, Ali was sen-
tenced to three years probation and a three-month suspen-
sion of his license.
In their stipulated motion to amend Ali’s conviction, the
Wisconsin district attorney and Ali’s counsel made explicit
their ultimate aim: “[b]y amending the felony conviction to
that of a misdemeanor, the defendant would avert his pend-
ing deportation from the United States of America.” It was
upon this stipulated motion that the Dane County Circuit
Court issued its order amending Ali’s conviction to simple
misdemeanor possession of THC. It is therefore, obvious
that Ali’s conviction was amended simply to avoid depor-
tation. On these facts and under the BIA’s decision in
Pickering, Ali remains convicted of an aggravated felony for
immigration purposes.4
Ali points to Sandoval in an attempt to support his
argument that this court should consider only his modified
conviction for misdemeanor possession of THC when eval-
4
Ali attempts to distinguish his case from Pickering by emphasiz-
ing the difference between a vacatur of a conviction, which
Pickering addressed, and an amendment or modification of the
same, which Ali’s case involves. However, Ali’s argument fails.
Title 8 U.S.C. § 1227(a)(2)(B)(i) provides that “[a]ny alien who at
any time after admission has been convicted of a violation of (or
a conspiracy or attempt to violate) any law or regulation of a State,
the United States, or a foreign country relating to a controlled sub-
stance (as defined in section 802 of Title 21), other than a single
offense involving possession for one’s own use of 30 grams or less
of marijuana, is deportable.” As Ali was convicted at some point
in time of a violation that involved more than the mere possession
of 30 grams or less of marijuana for his personal use, this pro-
vision simply reaffirms the result here. On these facts, it would not
make much sense for Ali, whose conviction was modified to avoid
deportation, to fare better than the applicant in Pickering whose
conviction was outright quashed for the same purpose.
12 Nos. 02-3761 & 03-3112
uating his immigration status. However, that case is readily
distinguishable. The petitioner in Sandoval presented a cog-
nizable ineffective assistance of counsel claim. This inef-
fective assistance of counsel claim effectively questioned the
voluntariness of Sandoval’s guilty plea. Here, there is no
procedural or substantive defect in Ali’s conviction. There-
fore, Sandoval does not apply to Ali.5
Even though Ali remains convicted of an aggravated fel-
ony for immigration purposes, his removal from the United
States is not automatic as he may be saved by withholding
of removal. We have jurisdiction to determine whether the
BIA properly found a criminal alien ineligible for withhold-
ing of removal. Bosede, 309 F.3d at 445-46. Withholding of
removal is governed by statute, 8 U.S.C. § 1231(b)(3)(A).6
This relief is not discretionary. If an alien meets the statu-
tory criteria, the Attorney General must withhold removal.
5
Ali highlights the following language in Sandoval: “even if the
state court judge’s decision to modify Sandoval’s sentence was
motivated by the consequences of the federal immigration law,
that fact would not render the modification [of his sentence]
ineffective for immigration purposes.” 240 F.3d at 583. We cited
the BIA’s decisions in Kaneda, 16 I. & N. Dec. 677, and O’Sullivan,
10 I. & N. Dec. 320, Interim Decision, 1963 WL 12324, as the basis
of that proposition. Id. However, the BIA in O’Sullivan declined
to find that the conviction was vacated (by an order for a new trial)
solely to avoid deportation. 10 I. & N. Dec. at 330. In addition,
Kaneda involved an expungement of a state conviction according
to terms analogous to the federal First Offender Statute and not
just to avoid deportation. 16 I. & N. Dec. at 678-80. In addition to
the cases on which the quoted statement is premised being
distinguishable from the case at bar, Sandoval was decided before
Pickering was decided.
6
The relevant language of that statute provides: “the Attorney
General may not remove an alien to a country if the Attorney
General decides that the alien’s life or freedom would be threat-
ened in that country because of the alien’s race, religion, national-
ity, membership in a particular social group, or political opinion.”
Nos. 02-3761 & 03-3112 13
I.N.S. v. Aguirre-Aguirre, 526 U.S. 415, 420 (1999). How-
ever, the statutory entitlement is limited by 8 U.S.C.
§ 1231(b)(3)(B)(ii), which excepts from relief aliens who
have been “convicted by a final judgment of a particularly
serious crime.”
The IJ in this case found that Ali’s conviction was for a
“particularly serious crime.” This finding rendered Ali stat-
utorily ineligible for withholding of removal. The IJ based
his conclusion on Ali’s felony conviction of possession with
intent to distribute THC. The IJ construed the conviction as
a drug trafficking offense, which under the IJ’s application
of Matter of Y-L-, A-G-, R-S-R-, 23 I. & N. Dec. 270 (BIA
2002), presumptively constitutes a “particularly serious
crime.” See also 8 C.F.R. § 208.16(d)(3) (“[I]t shall be
presumed that an alien convicted of an aggravated felony
has been convicted of a particularly serious crime.”). While
Matter of Y-L- allows a deportable alien to rebut that pre-
sumption by showing “the most extenuating circumstances
that are both extraordinary and compelling,” 23 I. & N. Dec.
at 270, the IJ noted that Ali did not present any testimonial
or documentary evidence to rebut this presumption.
Ali now responds that he is no longer convicted of a “par-
ticularly serious crime,” as his felony conviction was amended
to misdemeanor possession. Ali also argues that even as-
suming, arguendo, that if his felony conviction remained for
immigration purposes, he could rebut the presumption that
this felony conviction was for a “particularly serious crime.”
We have already concluded Ali’s first argument has no
merit. As to the question of whether Ali has rebutted the
presumption that his conviction was for a “particularly
serious crime,” we find he has not exhausted his admin-
istrative remedies on this point. Ali has not presented his
arguments to the BIA, and we cannot review these argu-
ments now in the first instance. Bosede, 309 F.3d at 448;
Singh v. Reno, 182 F.3d 504, 511 (7th Cir. 1999). Therefore,
14 Nos. 02-3761 & 03-3112
we must dismiss this portion of Ali’s petition for lack of
jurisdiction. 8 U.S.C. § 1252(d).
C. Convention Against Torture (“CAT”)
Despite his felony conviction, Ali can obtain protection
from deportation under the CAT. That treaty, adopted as
federal law by section 2242(a) of the Foreign Affairs Reform
and Restructuring Act of 1988, 8 U.S.C. § 1231, forbids de-
porting an alien to “a country in which there are substantial
grounds for believing the person would be in danger of being
subjected to torture.” The implementing regulation defines
“substantial grounds for believing the person would be in
danger of being subjected to torture” as meaning that the
alien “is more likely than not to be tortured in the country
of removal.” 8 C.F.R. § 208.16(c)(4).
The IJ concluded that Ali failed to establish that he would
most likely be tortured if returned to Afghanistan. As the
BIA summarily affirmed the IJ's decision without opinion,
we review the IJ’s decision. Vladimirova, 377 F.3d at 695.
We apply the substantial evidence standard, that is, we
determine whether the final agency decision is “supported
by reasonable, substantial, and probative evidence on the
record considered as a whole, and reverse only if the
evidence compels a contrary conclusion.” Ahmed v. Ashcroft,
348 F.3d 611, 615 (7th Cir. 2003) (internal citations omit-
ted).
To support his CAT claim, Ali, in addition to documentary
evidence, relied on his own testimony and that of
Mohammad Basheer. Basheer is an educator originally from
Afghanistan who has been employed at the University of
Nebraska in Omaha since 1988. Ali testified before the IJ
that he feared removal to Afghanistan because he has been
in the United States since age three and, for all intents and
purposes, is American. Ali argued that Afghanistan is
essentially unknown to him. Ali stated that he does not
Nos. 02-3761 & 03-3112 15
speak, read or write Farsi with any fluency. Ali also con-
tended that he has no family or friends in Afghanistan.
Ali also expressed concern over the declining health of his
parents, who live in the United States. Basheer testified
that in his opinion both government and non-governmental
forces will view Ali, with his American disposition and up-
bringing, as suspicious and possibly a spy. As such, Basheer
concluded, Ali is vulnerable to government-sanctioned
torture. However, the IJ did not give Basheer’s testimony
much weight, noting that the testimony was not corrobo-
rated in any way. Further, Basheer admitted that he had
not conducted research on torture in Afghanistan since
December of 2001.
We are sympathetic to Ali’s situation. We recognize that
being deported to a country that one does not know and that
has been ravaged by war and political instability is under-
standably a source of fear. Nonetheless, the law compels us
to reach this result. On this administrative record, we
cannot conclude that the IJ’s denial of CAT relief was not
supported by substantial evidence.
D. Motion to Reconsider Motion to Reopen Removal
Proceedings
Finally, Ali seeks review of the BIA’s denial of his request
to reconsider his denied motion to reopen so that Ali could
present a cancellation of removal claim. We review motions
to reconsider under the highly deferential abuse of discre-
tion standard. 8 C.F.R. § 1003.2(a); Dandan v. Ashcroft, 339
F.3d 567, 575 (7th Cir. 2003). A motion to reconsider “shall
state the reasons for the motion by specifying the errors of
fact or law in the prior Board decision and shall be sup-
ported by pertinent authority.” 8 C.F.R. § 1003.2(b)(1).
Ali based his motion to reconsider on his claim that his
conviction, reduced from a felony to a misdemeanor, made
him statutorily eligible for cancellation for removal. The
BIA based its denial of Ali’s motion on its Pickering decision,
16 Nos. 02-3761 & 03-3112
which holds that an alien remains convicted of a felony for
immigration purposes if his conviction is vacated solely to
avoid deportation or for rehabilitation purposes. As such,
Ali’s motion, based on his modified state conviction, would
not have made him eligible for the ultimate relief he sought
in his motion to reconsider, namely cancellation of removal.
See 8 U.S.C. § 1229b(a)(3) (rendering aliens convicted of any
aggravated felony statutorily ineligible for cancellation of
removal). Ineligible for cancellation of removal, the BIA did
not abuse its discretion when it denied Ali’s motion to
reconsider.
Ali also claims that the BIA violated his due process
rights when it applied Pickering, and in doing so, parted
with its precedent that allowed vacated criminal convictions
to prevent removal. Generally, we cannot consider constitu-
tional claims made on a direct review petition, unless the
claims raise “substantial” constitutional issues.7 Bosede, 309
F.3d at 446; Dave, 363 F.3d at 652. Even if we were to view
Ali’s claim as raising substantial constitutional issues
which we could review to “prevent bizarre miscarriages of
justice,” Lara-Ruiz v. I.N.S., 241 F.3d 934, 939 (7th Cir.
2001), Ali has not presented a valid due process claim. To
make such a claim, he would have to show that he has a
liberty or property interest in the outcome of the proceed-
ings. Dave, 363 F.3d at 653; see also Dandan, 339 F.3d at
575. However, an alien cannot have a liberty or property
interest in what is discretionary relief, Dave, 363 F.3d at
653, and the denial of such relief does not implicate due
process, id.; Dandan, 339 F.3d at 575-76. Ali seeks review
of his denied motion to reconsider so that he can present a
motion to reopen his removal proceedings and ultimately
obtain cancellation of removal. Cancellation of removal, the
ultimate relief he seeks, is a form of discretionary relief.
7
Although the court can review some constitutional claims if Ali
were to bring a petition for habeas corpus under 8 U.S.C. § 2241.
Nos. 02-3761 & 03-3112 17
Lemus-Rodriguez v. Ashcroft, 350 F.3d 652, 653 (7th Cir.
2003); Gill, 335 F.3d at 575.
Therefore, Ali has no liberty or property interest in the
relief he seeks, and we lack jurisdiction to review his due
process claim. This is especially true where 8 U.S.C.
§ 1252(a)(2)(B)(i) strips us of jurisdiction to review denials
of discretionary relief, including cancellation of removal.
III. CONCLUSION
For the reasons stated above, we must AFFIRM the IJ’s
findings that Ali is not a U.S. citizen and that he is not eli-
gible for relief under the Convention Against Torture,
AFFIRM the BIA’s denial of Ali’s motion to reconsider its
denial of his motion to reopen removal proceedings, and
DISMISS Ali’s withholding of removal claim for lack of
jurisdiction.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-11-05