Mikhail Pechenkov v. Eric H. Holder Jr.
2012 U.S. App. LEXIS 24804
| 9th Cir. | 2012Background
- Petitioner Mikhail G. Pechenkov, a Russian citizen, sought asylum in 1992 and was granted asylee status.
- He was later convicted in California of felony assault with a deadly weapon (Cal. Pen. Code § 245(a)(1)) with a suspended sentence, probation, jail time, and restitution.
- Petitioner’s asylum status was revoked under 8 C.F.R. § 208.24(a) after the conviction, and removal proceedings were initiated.
- The IJ denied withholding of removal, finding that Petitioner committed a particularly serious crime and was a danger to the community.
- Petitioner also sought adjustment of status in 2000, arguing conviction did not bar eligibility and challenging the revocation of asylum as unconstitutional.
- The BIA adopted the IJ’s decision, affirming denial of withholding and noting lack of jurisdiction over constitutional arguments regarding asylum revocation; the court addressed jurisdiction under 8 U.S.C. § 1252(a)(2).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction to review withholding denial | Petitioner contends the BIA/ IJ erred in the particularly serious crime finding and that the court can review the merits. | Government argues § 1252(a)(2)(C) bars review of the withholding denial where removal is based on aggravated felony, with limited review for legal questions under § 1252(a)(2)(D). | Court lacks jurisdiction to review the particular serious crime determination. |
| Constitutional challenges to asylum revocation and regulation | Petitioner asserts regulation revoking asylum improperly usurps congressional authority. | Government asserts regulation simply implements statutory termination authority; revocation is consistent with statute. | Court has jurisdiction to review constitutional questions; regulation is constitutional and revocation consistent with statute. |
| Adjustment of status eligibility and review of dismissal | Petitioner asserts eligibility for adjustment despite revocation and challenges to revocation regulation. | Government maintains limited jurisdiction; cannot challenge asylum revocation on merits, but may address constitutional issues. | Court dismisses part and denies part; jurisdiction acknowledged for constitutional/legal arguments related to adjustment. |
Key Cases Cited
- Morales v. Gonzalez, 478 F.3d 972 (9th Cir. 2007) (restores jurisdiction for questions of law and constitutional claims under §1252(a)(2)(D))
- Unuakhaulu v. Gonzales, 416 F.3d 931 (9th Cir. 2005) (creates an on-the-merits exception when an IJ denies relief on merits rather than solely on conviction)
- Arteaga v. Mukasey, 511 F.3d 940 (9th Cir. 2007) (discusses jurisdictional scope of §1252(a)(2)(C) and precedents)
- Arbid v. Holder, 700 F.3d 379 (9th Cir. 2012) (abuse-of-discretion review for particularly serious crime determinations)
- Lemus-Galvan v. Mukasey, 518 F.3d 1081 (9th Cir. 2008) (discusses scope of review where merits-based denial occurs)
- Ramadan v. Gonzales, 479 F.3d 646 (9th Cir. 2007) (addresses jurisdiction over asylum/withholding/ CAT claims under §1252(a)(2)(D))
- Trejo-Mejia v. Holder, 593 F.3d 913 (9th Cir. 2010) (discusses REAL ID Act jurisdictional restoration for certain cases)
- Fla. Dept. of Revenue v. Piccadilly Cafeterias, Inc., 554 U.S. 33 (S. Ct. 2008) (uses statutory titles as interpretive aids in statutory construction)