Timoshchuk v. Sessions
17-9518
| 10th Cir. | Dec 8, 2017Background
- Timoshchuk, a Ukrainian national admitted as a refugee in 2002 and later a lawful permanent resident, was criminally convicted in Colorado in 2015 of forgery (aggravated felony) and possession of methamphetamine and heroin; he served prison time and was detained by ICE.
- He conceded removability and admitted the convictions, then applied for asylum, cancellation of removal, and CAT protection.
- The IJ found him credible but concluded (1) the forgery conviction rendered him ineligible for asylum as an aggravated felony, (2) the family’s past mistreatment in Ukraine for Pentecostal beliefs did not amount to persecution and there was no reasonable fear of future persecution or political persecution, and (3) he failed to show torture by the Ukrainian government for CAT relief.
- The BIA dismissed his appeal, upholding the IJ’s rulings on cancellation of removal and CAT protection.
- Timoshchuk sought judicial review, arguing Colorado statutory construction (that his possession convictions reflected consumption, not possession, and that the forgery conviction should not bar relief) and raising various constitutional claims and procedural complaints about ICE detention.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction to review removal based on criminal convictions | Timoshchuk argued Colorado convictions should not preclude cancellation( e.g., addiction-based consumption) and forgery should not be treated as an aggravated felony | Government invoked 8 U.S.C. §1252(a)(2)(C) barring review of removal orders based on certain criminal convictions | Court: Lacks jurisdiction under §1252(a)(2)(C) to review the removal order arising from aggravated felony and drug convictions |
| Jurisdiction over state-law statutory-construction claims | Timoshchuk argued Colorado statutory construction defenses to removal bar are questions the court can review | Government contended exhaustion and jurisdictional bar prevent review | Court: §1252(a)(2)(D) permits review of constitutional/questions of law, so statutory-construction claims could be reviewable in principle, but here they were not exhausted before the BIA, so court lacks jurisdiction |
| Exhaustion of administrative remedies | Timoshchuk raised new statutory and constitutional claims on appeal to the circuit but did not present them to the BIA | Government argued lack of exhaustion under 8 U.S.C. §1252(d)(1) bars review | Court: Claims not presented to the BIA are unexhausted; court lacks jurisdiction to consider them |
| Reviewability of IJ/BIA factual determinations on persecution, future fear, and CAT | Timoshchuk contended the IJ/BIA erred in weighing evidence and denying cancellation/CAT | Government relied on final administrative findings of fact and the jurisdictional limits on review | Court: Lacks jurisdiction to review these factual determinations because they are neither constitutional nor legal statutory-construction issues |
Key Cases Cited
- Sosa-Valenzuela v. Gonzales, 483 F.3d 1140 (10th Cir.) (jurisdictional framework for claims in removal proceedings)
- Torres de la Cruz v. Maurer, 483 F.3d 1013 (10th Cir.) (exhaustion requirement for judicial review of BIA determinations)
- Alzainati v. Holder, 568 F.3d 844 (10th Cir.) (§1252(a)(2)(D) preserves jurisdiction over constitutional/questions of law)
- Garcia-Carbajal v. Holder, 625 F.3d 1233 (10th Cir.) (must present same specific legal theory to BIA to preserve for review)
- Shepherd v. Holder, 678 F.3d 1171 (10th Cir.) (not all legal issues qualify for §1252(a)(2)(D) review; focuses on statutory-construction issues)