Munis v. Holder
720 F.3d 1293
| 10th Cir. | 2013Background
- Petitioner Peter Dausen Munis, a Rwandan native and Tanzanian citizen, entered the U.S. as a nonimmigrant student in 1999 and later worked without authorization.
- Removal proceedings commenced in 2006 for failure to maintain nonimmigrant status; Munis conceded removability but sought relief.
- Munis sought adjustment of status based on his 2003 marriage to a U.S. citizen and a waiver of inadmissibility under 8 U.S.C. § 1182(h)(1)(B) due to alleged extreme hardship to his wife (one conviction implicated inadmissibility).
- In the alternative, he requested voluntary departure; the immigration judge denied all relief and the BIA dismissed his appeal.
- Munis appealed pro se to the Tenth Circuit, challenging the waiver and adjustment denials, the agency’s hardship finding, and denial of voluntary departure.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Reviewability of waiver/adjustment denial | Munis contends the agency erred in denying waiver and adjustment | Agency argues denial is discretionary and not judicially reviewable | Denial is discretionary and unreviewable absent a legal/constitutional question |
| Reviewability of hardship determination for § 1182(h) waiver | Munis contests the agency’s hardship finding | Agency maintains hardship determination is discretionary | Hardship determination under § 1182(h) is an unreviewable discretionary decision |
| Reviewability of denial of voluntary departure | Munis argues the IJ and BIA erred in refusing voluntary departure | Agency asserts voluntary departure is discretionary | Denial of voluntary departure is discretionary and not reviewable without legal/constitutional claim |
| Jurisdiction under 8 U.S.C. § 1252(a)(2)(D) | Munis implicitly asserts errors that would warrant judicial review | Government: no colorable legal or constitutional question presented | Court: No discernible legal or constitutional question; therefore lacks jurisdiction; petition dismissed |
Key Cases Cited
- Haines v. Kerner, 404 U.S. 519 (pro se pleadings construed liberally)
- Shepherd v. Holder, 678 F.3d 1171 (10th Cir. 2012) (restrictive interpretation of § 1252(a)(2)(D))
- Torres de la Cruz v. Maurer, 483 F.3d 1013 (10th Cir. 2007) (examples of reviewable legal questions)
- Kechkar v. Gonzales, 500 F.3d 1080 (10th Cir. 2007) (discretionary relief not subject to review)
- Schroeck v. Gonzales, 429 F.3d 947 (10th Cir. 2005) (§ 1182(h)(2) bars review of waiver decisions)
- Cospito v. Att’y Gen., 539 F.3d 166 (3d Cir. 2008) (hardship determination unreviewable)
- Rodrígues-Nascimento v. Gonzáles, 485 F.3d 60 (1st Cir. 2007) (hardship determination unreviewable)
- Bugayong v. INS, 442 F.3d 67 (2d Cir. 2006) (IJ’s hardship determination discretionary)
- Camara v. Dep’t of Homeland Sec., 497 F.3d 121 (2d Cir. 2007) (hardship under § 1182(i) unreviewable)
- Alzainati v. Holder, 568 F.3d 844 (10th Cir. 2009) (hardship determination for cancellation of removal is discretionary)
- Diallo v. Gonzales, 447 F.3d 1274 (10th Cir. 2006) (discretionary and factual determinations outside review)