Alhuay v. U.S. Attorney General
661 F.3d 534
| 11th Cir. | 2011Background
- Peruvian citizen Alhuay entered the U.S. in 1990 without inspection and later obtained LPR status as the self-petitioned battered spouse of Abel Quesnay, with prior marriages to Saldana (1975) and Diaz (1992).
- Alhuay’s 1996 self-petition based on a claimed abusive relationship was approved, but she later divorced Quesnay and remained married to Saldana until 2005; she concealed the Saldana marriage on multiple forms.
- NTA issued in 2007 alleging fraud or misrepresentation in obtaining LPR through the battered-spouse petition and lack of valid entry documents; removability charged under INA §§ 212(a)(6)(C)(i) and 212(a)(7)(A)(i)(I).
- Removal hearings spanned 2007–2009; credibility issues and inconsistent testimony about marriages, divorces, and arrests formed the factual basis for alleged fraud and misrepresentation.
- IJ found removability and denied waiver of removability and cancellation of removal, citing a pattern of misrepresentation and lack of hardship; BIA affirmed, declining jurisdiction over discretionary relief.
- Eleventh Circuit reviewed four issues, held § 1256(a) does not bar removal despite an erroneous prior adjustment, upheld removal on substantial-evidence basis, and dismissed discretionary-relief challenges for lack of jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does § 1256(a) apply to removal proceedings? | Alhuay: five-year rescission limit should bar removal. | Government: § 1256(a) limits rescission of status, not removal; removal can proceed irrespective of time since adjustment. | § 1256(a) does not apply to removal proceedings. |
| Whether government proved fraud/misrepresentation to procure status as required by § 212(a)(6)(C)(i). | Alhuay contends she believed she was divorced; misrepresentations were inadvertent or misunderstood. | Government: substantial evidence shows non-credible, material misrepresentations and concealment of Saldana marriage; fraud proven. | Substantial evidence supports fraud/misrepresentation to procure adjustment. |
| Did due process rights (interpreter and bias) affect a full and fair hearing? | Alhuay lacked an interpreter at key hearings; alleges IJ bias and ineffective assistance by counsel. | Government: no due process violation; interpreter provided when feasible; no bias proven; continuances granted to prepare. | No reversible due process violations; hearing adequate. |
| Whether the waiver of removability and cancellation of removal are reviewable on petition. | Waiver and cancellation denial should be reviewable for legal/constitutional error. | Waiver and cancellation decisions are discretionary and largely unreviewable under § 1252(a)(2)(B)(ii). | Petition dismissed for lack of jurisdiction to review discretionary relief. |
Key Cases Cited
- Stolaj v. Holder, 577 F.3d 651 (6th Cir. 2009) (§1256(a) limits rescission, not removal)
- Kim v. Holder, 560 F.3d 833 (8th Cir. 2009) (§1256(a) does not bar removal after erroneous adjustment)
- Asika v. Ashcroft, 362 F.3d 264 (4th Cir. 2004) (supports distinction between removal and rescission)
- Oloteo v. INS, 643 F.2d 679 (9th Cir. 1981) (no statutory time bar on deportation proceedings)
- Garcia v. Att'y Gen., 553 F.3d 724 (3d Cir. 2009) (five-year limit described as a statute of limitations)
- Martinez v. U.S. Att'y Gen., 446 F.3d 1219 (11th Cir. 2006) (1252(a)(2)(D) does not restore jurisdiction over discretionary hardship determinations)