Gui Ye v. Jefferson Sessions

FILED
NOT FOR PUBLICATION
JUN 22 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GUI SHENG YE, No. 14-73490
Petitioner, Agency No. A047-858-671
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted May 17, 2017
San Francisco, California
Before: W. FLETCHER and TALLMAN, Circuit Judges, and SILVER,** District
Judge.
Gui Sheng Ye petitions for review of the Board of Immigration Appeals’
(“BIA”) decision sustaining the Department of Homeland Security’s appeal from
an immigration judge’s decision. The BIA denied Ye’s application for a fraud
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Roslyn O. Silver, United States District Judge for the
District of Arizona, sitting by designation.
waiver under 8 U.S.C. § 1227(a)(1)(H). Our jurisdiction is governed by 8 U.S.C. §
1252, and we lack jurisdiction to review the agency’s exercise of discretion. 8
U.S.C. § 1252(a)(2)(B)(ii). We dismiss the petition for review.
By statute, the agency’s decision whether to grant a fraud waiver is a matter
of discretion. 8 U.S.C. § 1227(a)(1)(H). Ye argues the agency did not “fully and
fairly consider all relevant positive factors weighing” in favor of a fraud waiver
and over-emphasized the negative factors weighing against a fraud waiver. See
Matter of Tijam, 22 I. & N. Dec. 408, 412 (B.I.A. 1998) (stating that in deciding
whether to exercise its discretion to grant a wavier of removability, the agency
balances the “alien’s undesirability as a permanent resident with the social and
humane considerations present,” and the adverse factors to be considered “may
include the nature and underlying circumstances of the fraud or misrepresentation
involved”). But these arguments, and all of Ye’s other arguments, are attempts to
challenge the agency’s discretionary decision, particularly how it weighed the
evidence, a matter over which we lack jurisdiction. See Vasquez v. Holder, 602
F.3d 1003, 1017 (9th Cir. 2010) (noting “we do not have jurisdiction to review the
discretionary denial of a fraud waiver”); San Pedro v. Ashcroft, 395 F.3d 1156,
1157 (9th Cir. 2005) (noting “we . . . lack jurisdiction” to review a petition
challenging an exercise of discretion under the fraud waiver statute).
2
PETITION FOR REVIEW DISMISSED. Each party shall bear its own
costs of this appeal.
3