Mohammad Homayun MAIWAND, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.
Docket No. 05-6055-ag.
United States Court of Appeals, Second Circuit.
Argued: March 21, 2007. Decided: Sept. 11, 2007.
501 F.3d 101
Papu Sandhu, Office of Immigration Litigation, Department of Justice (Peter D. Keisler, Assistant Attorney General, of counsel), Washington, DC, for Respondent.
Before: SACK, B.D. PARKER, and HALL, Circuit Judges.
SACK, Circuit Judge:
Mohammad Homayun Maiwand, a native and citizen of Afghanistan, petitions for review of a decision by the Board of Immigration Appeals (“BIA“) denying 1) his application for a waiver of inadmissibility under section 212(c) of the Immigration and Nationality Act (“INA“),
Maiwand contests the BIA‘s denial of section 212(c) relief, but his arguments raise no constitutional claim or question of law. We are therefore without jurisdiction to review the BIA‘s decision in that regard. To that extent, we dismiss the petition. We also dismiss the petition insofar as it asks us to review the correctness of the IJ‘s fact-finding regarding Maiwand‘s CAT claim. To the extent Maiwand argues that the IJ erred in assessing what evidence could satisfy his burden of proof under the CAT regulations, we find the argument to be without merit.
Maiwand‘s challenge to the third part of the BIA‘s decision is based on his argument that because he entered the country as a refugee, the BIA is statutorily prohibited from ordering his removal without first cancelling that status. Although this is a question of law that we have jurisdiction to review, we conclude that the BIA‘s interpretation of the relevant statutes and regulations are reasonable. To that extent, we deny the petition.
BACKGROUND
According to Maiwand‘s testimony before Immigration Judge (“IJ“) Alan A. Vomacka, Maiwand is a member of the Mohummed Ziy monarchy, which ruled Afghanistan for about two hundred years prior to the 1980s. In 1988, after the Ziy family was overthrown by the Soviet Union, Maiwand escaped with his wife Fazila to the United States. He was accorded refugee status in 1990. In 1992, the INS1 granted his application for adjustment of status and, retroactive to 1991, made Maiwand a legal permanent resident (“LPR“). Fazila became a United States citizen in 1997. Maiwand and Fazila have three children born in the United States in 1990, 1992, and 1994, respectively. They are United States citizens.
In 1993, Maiwand, in exchange for $5,000, introduced an Afghani friend, who said he wanted to purchase heroin, to an-
On remand, the IJ denied Maiwand‘s application for a waiver of inadmissibility pursuant to section 212(c), in large part because new testimony by Maiwand before the IJ convinced the IJ that Maiwand‘s earlier testimony falsely minimized his involvement in the heroin transaction that led to his 1993 conviction. In light of the new information and the IJ‘s corresponding doubts about Maiwand‘s credibility, the IJ decided not to exercise the Attorney General‘s discretion delegated to the IJ to grant Maiwand a section 212(c) waiver.
The IJ also denied Maiwand‘s application for CAT relief. The judge recognized that the Afghan government might be unable to protect Maiwand from the violent acts of rogue elements in the country. The IJ nonetheless found that Maiwand had failed to show a “probability that [he] would be taken into custody by the government under the present situation in Afghanistan [or] a probability that if he were taken into custody by some other group, it would be with the acquiescence of the government.” Oral Decision Tr., dated July 22, 2002, at 6. In sum, the IJ found, Maiwand had “not established a probability of being tortured in Afghanistan.” Id.
Maiwand appealed to the BIA, which affirmed the IJ‘s denial of relief under both section 212(c) and CAT. Maiwand also filed a motion asking the BIA to terminate the proceedings based on the theory that as a refugee, he could not be removed from the country. The BIA denied this motion, reasoning that once Maiwand adjusted his status from that of refugee to that of an LPR, his previous refugee status provided no basis for terminating removal proceedings.
Maiwand petitions for review.
DISCUSSION
I. Standard of Review
“Where, as here, the BIA adopts and affirms the decision of the IJ, and supplements the IJ‘s decision, we review the decision of the IJ as supplemented by the BIA.” Islam v. Gonzales, 469 F.3d 53, 55 (2d Cir. 2006).
We apply the principles of Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984), to agency interpretations of statutes when Congress has delegated law-making authority to the agency and the interpretation was promulgated pursuant to that authority. Ucelo-Gomez v. Gonzales, 464 F.3d 163, 168 (2d Cir. 2006) (citing United States v. Mead Corp., 533 U.S. 218, 226-27 (2001)). Precedential BIA de-
II. Jurisdiction
Because Maiwand was ordered removed pursuant to
A. Section 212(c) Relief
Former INA section 212(c) granted the Attorney General discretion to waive deportation orders issued to LPRs who have lived in the United States for at least seven consecutive years. See INS v. St. Cyr, 533 U.S. 289, 294-95 (2001). This provision was repealed by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA“). Section 212(c)‘s waiver of inadmissibility relief nonetheless remains available to aliens who pled guilty to crimes prior to the month of April 1997, in which IIRIRA became effective, and who, “notwithstanding those convictions, would have been eligible for § 212(c) relief at the time of their plea under the law then in effect.” St. Cyr, 533 U.S. at 326.
Maiwand first disputes the IJ‘s and BIA‘s conclusions that his testimony about the heroin transaction in his hearings before the IJ was inconsistent. He asserts that the apparent inconsistency resulted from superficial questioning of him about his role in the offense at his first hearing. Because this attack “essentially disputes the correctness of an IJ‘s fact-finding,” Xiao Ji Chen, 471 F.3d at 329, we are without jurisdiction to review it.
Maiwand also asserts that the BIA ignored a psychiatrist‘s report that provided evidence of his rehabilitation and the hardships his family would endure if he was removed. He contends that the BIA thereby abused its discretion and violated his right to due process. But while an “IJ‘s unambiguous mischaracterization of the record raises a question of law,” Gui Yin Liu, 475 F.3d at 138, an argument that “merely quibbles with the IJ‘s description of the facts,” Khan v. Gonzales, 495 F.3d 31, 36 (2d Cir. 2007), does not. Here, the BIA explicitly referenced the report in its opinion. Accordingly, we conclude that Maiwand‘s complaint regarding the extent of the agency‘s reliance on the report amounts to nothing more than a “quarrel[] over the ... justification for the discretionary choices” made, a decision we cannot review. Xiao Ji Chen, 471 F.3d at 329.
B. CAT Relief
Regulations implementing CAT provide that “once an alien establishes that ‘it is more likely than not that he or she would be tortured if removed to the proposed country of removal,’ the United States may not remove him or her to that country.” Ramsameachire v. Ashcroft, 357 F.3d 169, 184 (2d Cir. 2004) (quoting
C. Motion to Terminate
Maiwand also contends that his motion to terminate the removal proceedings should have been granted because he is statutorily ineligible for removal on the ground that his refugee status was never revoked in accordance with
III. Motion to Terminate: The Merits
The INA provides that a refugee is a person outside the country of his nationality who “is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”
Refugee status may be terminated only if the Attorney General finds that the alien did not qualify as a refugee at the time of entry. See
Maiwand argues that unless his refugee status has been terminated, he may not be removed. But the BIA has recently held otherwise. In re Smriko, 23 I. & N. Dec. 836, 842 (B.I.A. 2005) (finding “no merit to the respondent‘s assertion that he is immune from removal on the basis of his convictions for crimes involving moral turpitude because his refugee status has not been terminated” under section
The statute is silent as to whether refugee status must be terminated prior to commencement of removal proceedings. See
Although we have not yet addressed whether the BIA‘s interpretation of the relevant statutes in Smriko is reasonable, the Third and Ninth Circuits have done so and both have concluded that it is. See Kaganovich v. Gonzales, 470 F.3d 894, 897-98 (9th Cir. 2006) (citing Romanishyn, 455 F.3d at 185). We agree.
As those circuits recognized, refugee status does not afford complete immunity from removal. See Romanishyn, 455 F.3d at 185 (recognizing that “a refugee may under some circumstances be removed even if his refugee status has not been terminated“); Kaganovich, 470 F.3d at 898 (upholding the BIA‘s interpretation in light of “statutory text allowing removal of any alien” (emphasis in original)). The fact that Maiwand‘s adjustment to LPR status
CONCLUSION
We have carefully considered the remainder of Maiwand‘s arguments and find them to be without merit. At the heart of Maiwand‘s petition are his assertions that the dangers he is likely to face if returned to Afghanistan, his demonstrated rehabilitation, and the hardship his family is likely to suffer upon his removal outweigh the fact of his conviction for a controlled substances offense over a decade ago. While we have no reason to doubt the factual basis for those assertions, for the foregoing reasons, we do not have jurisdiction to address them. The petition for review therefore is dismissed in part, and otherwise denied.
ROBERT D. SACK
UNITED STATES CIRCUIT JUDGE