Moosa v. INSMoosa v. INS
RHESA HAWKINS BARKSDALE, Circuit Judge.
A deferred adjudication of guilt for indecency with a child by contact having been entered against Wazirali Moosa in Texas state court in 1990, and, as a result, Moosa having been denied permanent residency and having been ordered deported, along with his wife, primarily at issue is, in the legalization decision, the retroactive application to that deferred adjudication of the new definition of “conviction” in
I.
Moosa, a native of Pakistan, entered the United States in 1979 as a nonimmigrant visitor. Four years later, his wife, Zebunisa Moosa, and their two young daughters joined him, also entering as nonimmigrant visitors. Eventually, the Moosas settled in Texas, where Moosa was employed, Mrs. Moosa tended to the needs of the household, and the two daughters enrolled in (and eventually graduated from) public school.
In September 1988, the INS approved Moosa‘s application for temporary resident status. In April 1989, he applied to the INS to adjust his status to permanent resident.
Later in 1989, Moosa was indicted in Texas for indecency with a child by contact (a second-degree felony), stemming from an incident occurring in early April of that year. The indictment charged Moosa with molesting a twelve-year-old girl. Moosa pleaded guilty in January 1990. The following month, a Texas court entered a deferred adjudication of guilt and placed Moosa on eight years
In February 1992, interpreting Moosa‘s deferred adjudication as a “conviction” that rendered him ineligible for legalization, the Legalization Director issued notice of intent to deny his permanent residency application. The application was formally
Two weeks later, on 4 May, Moosa appealed the termination of his temporary resident status to the Legalization Appeals Unit (LAU).3 His notice of appeal was returned for failure to include the filing fee. On 22 May, the notice was refiled with the fee. In July 1994, the LAU dismissed the appeal as untimely for having been filed more than 30 days after the Legalization Director‘s decision.
The INS commenced deportation proceedings in March 1995 against Mr. and Mrs. Moosa and their daughters (then in their early 20s), for overstaying an authorized period of stay, pursuant to
The Immigration Judge (IJ) suspended the deportation of the Moosas’ daughters; however, suspension was denied for Mr. and Mrs.
The Moosas appealed to the Board of Immigration Appeals; it affirmed in October 1996. The BIA agreed that Mrs. Moosa had not shown extreme hardship merely by alleging economic hardship, diabetes, and a bad back. The BIA denied relief to Moosa primarily because of his sexual contact with children and because it was not convinced he was rehabilitated. The BIA described his conduct as “serious” and “predatory” and found that “a favorable exercise of discretion is not warranted“. The Moosas petitioned this court for review of the BIA‘s decision.
But, after the Moosas’ opening brief was filed with our court, the INS discovered that the LAU had erred in July 1994 when it dismissed as untimely Moosa‘s appeal of the permanent resident status decision. Instead, the INS concluded that the appeal was timely. On joint motion, our court in May 1997 remanded the legalization question to the LAU. The following December, applying
Therefore, the petitions at hand are from the LAU‘s December 1997 decision affirming the denial of Moosa‘s permanent resident application and from the BIA‘s decision denying a suspension of deportation to Mr. and Mrs. Moosa. For the latter, the INS has moved to dismiss for lack of jurisdiction.
II.
A.
Moosa, who was given temporary resident status in 1988, applied for permanent residency in 1989 under
Permanent residence may not be granted aliens “convicted” of a felony.
In 1988, the BIA defined “conviction” in Matter of Ozkok, 19 I&N Dec. 546 (BIA 1988). In Ozkok, the BIA examined its previous decisions, which looked to the state law effect of the conviction in order to determine if the finality requirement had been met. Id. at 549-50. The BIA noted that “most states now employ some method of ameliorating the consequences of a conviction“; and that “the standard which [the BIA had] applied to the many variations in
Where adjudication of guilt has been withheld, however, further examination of the specific procedure used and the state authority under which the court acted will be necessary. As a general rule, a conviction will be found for immigration purposes where all of the following elements are present:
(1) a judge or jury has found the alien guilty or he has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilty;
(2) the judge has ordered some form of punishment, penalty, or restraint on the person‘s liberty to be imposed (including but not limited to incarceration, probation, a fine or restitution, or community-based sanctions such as a rehabilitation program, a work-release or study-release program, revocation or suspension of a driver‘s license, deprivation of nonessential activities or privileges, or community service); and
(3) a judgment or adjudication of guilt may be entered if the person violates the terms of his probation or fails to comply with the requirements of the court‘s order, without availability of further proceedings regarding the person‘s guilt or innocence of the original charge.
But, in Matter of M, 19 I&N Dec. 861 (1989), contrary to the BIA‘s conditions, the LAU defined “conviction” without a finality requirement and found a Texas deferred adjudication to be a “conviction” that barred permanent residency. The LAU held that, for purposes of
(1) a judge or jury has found the alien guilty or he has entered a plea of guilty or nolo contendere; and
(2) the judge has ordered some form of punishment or penalty, including but not limited to a fine or probation.
Id. at 865. Because the Texas deferred adjudication satisfied both elements, the LAU determined that the petitioner (who had received a deferred adjudication for forgery) had been “convicted“.
The petitioner in Matter of M contested the LAU‘s decision, and our court reversed in Martinez-Montoya v. INS, 904 F.2d 1018 (5th Cir. 1990). Our court first found that “at least the LAU is bound to apply the BIA definition of conviction recognized in Matter of Ozkok, and that, under the Ozkok standard, Martinez-
Because the defendant in a deferred adjudication faces further proceedings if he violates the terms of the community supervision, the court stated that the third prong of the Ozkok test (which requires that there be no further proceedings available) was not met by the deferred adjudication. Id. at 1024. Furthermore, the court found that the deferred adjudication did not satisfy the additional finality requirement of Ozkok because Martinez-Montoya could still appeal a finding of guilt if one were entered against him. Id. at 1025.
Therefore, our court determined that a Texas deferred adjudication was not a “conviction” for purposes of federal immigration law. See also Zamora-Morel v. INS, 905 F.2d 833, 839 n.3 (5th Cir. 1990) (recognizing that, under Martinez-Montoya, Texas deferred adjudication is not a “conviction” for immigration law purposes). But see Molina v. INS, 981 F.2d 14, 18-20 (1st Cir. 1992) (Rhode Island nolo contendere plea plus probation, which was not considered “conviction” under state law after successful completion of probation, was “conviction” under federal immigration laws); Yanez-Popp v. INS, 998 F.2d 231, 233, 237 (4th Cir. 1993)
Following receipt of the INS‘s notice of intent, based on Moosa‘s deferred adjudication, to deny permanent residency (thus terminating his temporary residency), Moosa‘s attorney apprised the Legalization Director of Martinez-Montoya‘s holding that a Texas deferred adjudication was not a “conviction“. This notwithstanding, the Legalization Director did not mention Martinez-Montoya in his April 1992 decision; instead, he relied on Ozkok in concluding that the deferred adjudication was a “conviction“.
On 30 September 1996, IIRIRA was enacted; it became effective on 1 April 1997.
The term “conviction” means, with respect to an alien, a formal judgment of guilt of the alien entered by the court or, if adjudication of guilt has been withheld, where --
(i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and
(ii) the judge has ordered some form of punishment, penalty, or restraint on the alien‘s liberty to be imposed.
Codified at
The Congressional Conference Committee Report accompanying IIRIRA commented on Congressional intent in drafting
This section deliberately broadens the scope of the definition of “conviction” beyond that adopted by the Board of Immigration Appeals in Matter of Ozkok, 19 I&N Dec. 546 (BIA 1988). As the Board noted in Ozkok, there exist in the various States a myriad of provisions for ameliorating the effects of a conviction. As a result, aliens who have clearly been guilty of criminal behavior and whom Congress intended to be considered “convicted” have escaped the immigration consequences normally attendant upon a conviction. Ozkok, while making it more difficult for alien criminals to escape such consequences, does not go far enough to address situations where a judgment of guilt or imposition of sentence is suspended, conditioned upon the alien‘s future good behavior. For example, the third prong of Ozkok requires that a judgment or adjudication of guilt may be entered if the alien violates a term or condition of probation, without the need for any further proceedings regarding guilt or innocence on the original charge. In some States, adjudication may be “deferred” upon a finding or confession of guilt, and a final judgment of guilt may not be imposed if the alien violates probation until there is an additional proceeding regarding the alien‘s guilt or innocence. In such cases, the third prong of the Ozkok definition prevents the original finding or confession of guilt to be
considered a “conviction” for deportation purposes. This new provision, by removing the third prong of Ozkok, clarifies Congressional intent that even in cases where adjudication is “deferred,” the original finding or confession of guilt is sufficient to establish a “conviction” for purposes of the immigration laws.
H.R. Conf. Rep. No. 828, 104th Cong., 2nd Sess. 1996, 1996 WL 563320 at *496-97 (emphasis added).
As noted, Moosa‘s appeal of the Legalization Director‘s decision to the LAU was dismissed as untimely. It was not until the petition in issue was filed that the INS discovered its mistake and the matter was remanded to the LAU. Pursuant to the newly enacted
The legal and factual events can be summarized as follows: (1) in January 1989, the LAU rendered its decision in Matter of M; (2) in April 1989, Moosa molested a child and applied for permanent residency; (3) later in 1989, Moosa was indicted for indecency with a child; (4) in January 1990, Moosa entered into a plea agreement; (5) in February 1990, the Texas court entered a deferred adjudication; (6) in July 1990, Martinez-Montoya was rendered, reversing Matter of M; (7) in April 1992, Moosa‘s temporary resident status was terminated; (8) in July 1994, the LAU dismissed Moosa‘s appeal as untimely; (9) in 1996, IIRIRA was signed into law; (10) in 1997, the INS discovered its mistake, the case was
Moosa‘s challenge to the LAU decision rests on two sub-issues: (1) whether the INS is estopped from terminating his temporary residency; and (2) whether the LAU erred in applying
1.
Moosa bases his estoppel claim on the charge that the INS engaged in affirmative misconduct in two ways: the dismissal of his appeal to the LAU as untimely; and the Legalization Director‘s not complying with our circuit precedent for the definition of a “conviction“.
“To establish estoppel against the government, a party must prove affirmative misconduct by the government and also establish the four traditional elements of the doctrine. The four elements of estoppel are: (1) that the party to be estopped was aware of the facts, and (2) intended his act or omission to be acted upon; (3) that the party asserting estoppel did not have knowledge of the facts, and (4) reasonably relied on the conduct of the other to his substantial injury.” United States v. Bloom, 112 F.3d 200, 205 (5th Cir. 1997). Valid assertions of equitable estoppel against the Government are rare indeed. Id.; see also Ferguson v. FDIC, 164 F.3d 894, 898 (5th Cir. 1999); Rew Enterprises, Inc. v. Premier Bank, N.A., 49 F.3d 163, 167 (5th Cir. 1995); United States v. Perez-Torres, 15 F.3d 403, 407 (5th Cir.), cert. denied, 513 U.S. 840 (1994) (“Estoppel against the government is problematical at best“).
In several cases involving claims that the INS should be estopped based on conduct of its agents, the Supreme Court has held that the conduct did not rise to the level of “affirmative misconduct” and declined to estop the INS. See INS v. Miranda, 459 U.S. 14, 18-19 (1982) (INS‘s 18 month delay in processing alien‘s application for permanent residency did not constitute affirmative misconduct); INS v. Hibi, 414 U.S. 5, 8-9 (1973) (failure of Government to publicize immigration rights afforded by Congress to Philippine soldiers before deadline to apply for immigration benefits expired did not amount to affirmative misconduct); Montana v. Kennedy, 366 U.S. 308, 314-15 (1961) (failure of American Consular Officer in Italy to issue passport to alien‘s pregnant mother, resulting in alien‘s birth in Italy, did not constitute affirmative misconduct); see also Schweiker v. Hansen, 450 U.S. 785, 788-90 (1981) (Social Security Administration agent‘s erroneous response to applicant‘s inquiry and failure to have applicant complete written request, as internal regulations required, were not enough for applicant to succeed on estoppel claim against Government).
Likewise, our court has declined to estop the INS based on claims that the INS‘s conduct caused the denials of immigration benefits. See Fano v. O‘Neill, 806 F.2d 1262, 1265 (5th Cir. 1987)
In fact, the Supreme Court has not decided whether the INS can ever be estopped from enforcing immigration laws because of its misconduct. See Miranda, 459 U.S. at 19 (refusing to estop Government because no affirmative misconduct, but reserving question of whether Government could ever be estopped from enforcing immigration laws); Hibi, 414 U.S. at 8-9 (recognizing that question of whether affirmative misconduct could estop Government from denying citizenship was left open in Montana, but declining to address because found no affirmative misconduct); Montana, 366 U.S. at 315 (based on finding no affirmative misconduct; “we need not stop to inquire whether, as some lower courts have held, there may be circumstances in which the United States is estopped to deny citizenship because of the conduct of its officials“).
What is clear is that, at a minimum, affirmative misconduct by the INS must be shown before an equitable estoppel claim will be considered. Fano, 806 F.2d at 1264-65 (“The Supreme Court has indicated, without deciding, that equitable relief may be available to a private party aggrieved by certain conduct of government officials“). “‘Affirmative misconduct’ requires an affirmative misrepresentation or affirmative concealment of a material fact by the government.” Linkous v. United States, 142 F.3d 271, 278 (5th Cir. 1998).
a.
Moosa can point to no evidence indicating that the dismissal as untimely of his initial appeal to the LAU was an act of affirmative misconduct. In his reply brief, he asserts that the LAU “contrived an easy way to dismiss [Moosa‘s] appeal” by claiming that the dates relevant to the timely filing of the appeal were different than they actually were. Moosa states: “The record, of course, shows that the Notice of Denial was issued on April 20, 1992 and not on April 15, 1992, as the LAU claimed“. (Emphasis added.)
It belies common sense for Moosa now to argue that the error in computing the timing of the notice of appeal was clearly obvious, when the mistake was not noticed by Moosa, or his previous or present counsel. Rather, the INS discovered the error in preparing to address this petition. It then contacted Moosa and
b.
Moosa also rests his estoppel claim on the asserted affirmative misconduct of the Legalization Director in considering Moosa‘s deferred adjudication a “conviction“, in spite of Martinez-Montoya. Moosa charges the Legalization Director with “knowing[ly] and deliberate[ly] refus[ing] to obey the controlling law of this Circuit“.
Moosa misses the mark. We do not review the actions of the Legalization Director; his was an interim decision superceded by the LAU‘s December 1997 decision.
Our basis of review for INS legalization determinations is described in
Such judicial review shall be based solely upon the administrative record established at the time of the review by the appellate authority and the findings of fact and determinations contained in such record shall be conclusive unless the applicant can establish abuse of discretion or that the findings are directly contrary to clear and convincing facts contained in the record considered as a whole.
We review the decision by the appellate authority (ie., the LAU), not that of the initial adjudicatory entity (ie., the Legalization Director). Cf. Castillo-Rodriguez v. INS, 929 F.2d 181, 183 (5th Cir. 1991) (order of IJ not final when alien appeals to BIA; “[t]his Court is authorized to review only the order of the Board, not the decision of the [IJ]“). The only legalization decision before us is the LAU‘s December 1997 decision.5
2.
Moosa asserts that, even under
First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency‘s answer is based on a permissible construction of the statute.
Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984). See also Martinez-Montoya, 904 F.2d at 1021 (“The federal agency construction is to be upheld if it is reasonable and not contrary to Congressional intent“).
a.
The text of
The second prong is that some form of punishment or restraint on liberty is imposed. Texas law provides that, upon finding guilt and determining that a deferred adjudication would be in the best interests of the community, the judge may place the defendant on community supervision.
Our conclusion accords with United States v. Campbell, 167 F.3d 94 (2d Cir. 1999), the only other circuit court case we have found that specifically references
b.
The second question is whether the LAU properly applied this new definition, which became law in 1996, to Moosa‘s 1990 deferred adjudication. In addressing this issue, the LAU quoted the language from the Conference Report indicating that
On the other hand, there is a presumption against retroactive legislation [that] is deeply rooted in our jurisprudence. Hughes Aircraft Co. v. United States ex rel. Schumer, 117 S. Ct. 1871, 1876 (1997) (quoting Landgraf, 511 U.S. at 265). The Supreme Court has stated, however, that the principle of applying the law in effect at the time of the decision does not conflict with the presumption against retroactivity when the statute in question is unambiguous. Landgraf, 511 U.S. at 273. More recently, the Court stated that this presumption against retroactivity is applied unless Congress has clearly manifested its intent to the contrary. Hughes Aircraft, 117 S. Ct. at 1876; see also United States v. Rocha, 109 F.3d 225, 228 (5th Cir. 1997).
The plain language of
First, Moosa asserts that
Moosa‘s argument makes no sense. He would have us hold that Congress created a new definition of conviction in
Further,
Moosa makes an even weaker argument in asserting that
Next, Moosa claims that the new statutory definition of conviction does not eliminate the requirement of finality, which, ever since the Supreme Court‘s decision in Pino, has been used as an additional requirement for the definition of conviction, as discussed supra. See, e.g., White, 17 F.3d at 479; Martinez-Montoya, 904 F.2d at 1025; Ozkok, 19 I&N at 553 n.7.
In support of this proposition, Moosa cites Wilson, 43 F.3d at 215, in which our court stated that the decision of the BIA to apply a federal conviction standard in Ozkok does not infringe at all, either explicitly or implicitly, upon the Supreme Court‘s holding in Pino. Again, it is important to note that, prior to the enactment of
Thus, courts were called upon to discern the meaning intended by Congress. Indeed, in Pino, the Court stated that the conviction [had not] attained such finality as to support an order of deportation within the contemplation of § 241 of the Immigration and Nationality Act. Pino, 349 U.S. at 901 (emphasis added). Therefore, Pino, the case from which our court and others drew the finality requirement, was interpreting the then-undefined term conviction in the immigration laws. See Will, 447 F.2d at 531 ([I]t appears clear that the Supreme Court‘s decision in Pino ... and from past administrative interpretation that [INA § 241(a)(11)] contemplates a conviction which has attained a substantial degree of finality); In re Punu, Interim Decision (BIA) 3364, 1998 WL 546634 (Aug. 18, 1998)(Grant, Board Member, Concurring) (discussing why judicially created finality requirement has not survived IIRIRA).
Now, however, Congress has provided a definition. The Conference Report, quoted supra, shows that Congress was well aware of the varying interpretations of conviction, but chose to enact the current definition. Again, our starting point is with the plain language of the statute. See Uniroyal Chemical Co., Inc. v. Deltech Corp., 160 F.3d 238, 244 (5th Cir. 1998), opinion modified on rehearing, 1999 WL 7912 (5th Cir. 1999) (When the language [of the statute itself] is plain we must abide it; we may depart from its meaning only to avoid a result so bizarre that Congress could not have intended it (internal quotation omitted)); United States v. Silva-Chavez, 888 F.2d 1481, 1483 (5th Cir. 1989) (interpreting words at their plain meaning where Congress explained in legislative history that words meant exactly what they say); United States v. Bo, 472 F.2d 720, 722 (5th Cir. 1972) (per curiam) (In construing statutes, words are to be given their natural, plain, ordinary and commonly understood meaning unless it is clear that some other meaning was intended).
There is no indication that the finality requirement imposed by Pino, and this court, prior to 1996, survives the new definition of conviction found in
Next, Moosa asserts that applying the new definition of conviction to him presents retroactivity concerns because it increases his liability for past conduct. He asserts that he agreed to the deferred adjudication plea agreement with an entirely different understanding of the immigration consequences of his plea. This assertion is not borne out by the facts. When Moosa entered into the plea agreement in January 1990, Martinez-
Moosa maintains that taking away the finality requirement would lead to absurd results, such as an alien being deported when his conviction is on appeal, but the conviction later being reversed. As discussed, that it not the case here. Be that as it may, such concerns are more properly addressed to Congress. Congress has made the policy choice to eliminate the finality requirement, and we will not second-guess such policy choices properly made by the legislative branch. See, e.g., Plyler v. Doe, 457 U.S. 202, 237 (1981) (Powell, J., concurring) (Congress has been vested by the Constitution with the responsibility of protecting our borders and legislating with respect to aliens); Fiallo v. Bell, 430 U.S. 787, 792 (1977) (Our cases have long recognized the power to expel or exclude aliens as a fundamental
B.
Mr. and Mrs. Moosa also challenge the decision of the BIA denying suspension of their deportations. The INS contests our jurisdiction.
Prior to the enactment of IIRIRA,
In reviewing denials based on one of the first two factors, we upheld the BIA‘s decision if it was supported by substantial evidence. Ramos v. INS, 695 F.2d 181, 185 (5th Cir. 1983). Denials based on a finding of no extreme hardship were reviewed for abuse of discretion. Id.
IIRIRA established transitional rules that applied to BIA decisions filed between 31 October 1996 and 31 March 1997.
At issue is whether the BIA‘s decision to deny suspension of deportation to Mr. and Mrs. Moosa was discretionary, thus precluding our review. The Moosas claimed entitlement to suspension due to the extreme hardship they would suffer if deported.
The bases for this claim were: (1) they have community ties in the United States, including membership in a church; (2) if deported, Moosa would be unable to provide his daughters with the financial support to continue their education; (3) Mrs. Moosa suffers from diabetes and back pain; (4) it would be difficult for Moosa to find a job in Pakistan and the cost of living there is very high; (5) drinking water and reliable electricity are not readily available in Pakistan; and (6) their standard of living in the United States is better than it would be in Pakistan.
At the deportation hearing, Moosa admitted the factual bases for the 1990 deferred adjudication; stated that he felt very sorry about his actions; and promised to refrain from such
With regard to Mr. Moosa, the BIA made it clear that it was denying his request for suspension based on its discretion. Although the BIA noted that it did not find that Moosa had proven extreme hardship, it stated that, even if he had proved all three required elements, a favorable exercise of discretion is not warranted. Because the BIA was making a discretionary decision,
The question with regard to Mrs. Moosa is one of first impression in this circuit. The BIA found that she satisfied the first two factors, but that she did not demonstrate that she would suffer extreme hardship if deported. Thus, at issue is whether
Initially, we note that the power of courts to review deportation decisions is subject to the will of Congress. As the Supreme Court stated nearly 50 years ago:
The power to expel aliens, being essentially a power of the political branches of government, the legislative and executive, may be exercised entirely through executive officers, with such opportunity for judicial review of their action as congress may see fit to authorize or permit. This power is, of course, subject to judicial intervention under the paramount law of the constitution.
Carlson v. Landon, 342 U.S. 524, 537 (1952) (internal quotations and citations omitted). See also Lucacela v. Reno, 161 F.3d 1055, 1058 (7th Cir. 1998) (this court has recognized Congress’ ability to determine the scope of the court‘s review of INS decisions); Skutnik v. INS, 128 F.3d 512, 514 (7th Cir. 1997) (although the Constitution may require judicial review of a claim of legal entitlement to remain in the United States, it does not require review of claims that executive officials should make exceptions to the rules defining who is legally entitled to reside in the United States). Thus, the scope of our review of denials of suspension of deportation, including whether we are able even to review such denials, is within the control of Congress.
Although our court has not yet addressed whether we lack jurisdiction over denials of suspension based on a finding of no
Finally, the court addressed denials based on the extreme hardship element. It stated that a determination that no extreme hardship exists is clearly a discretionary act. Id. at 1152. The court held that, as a result, [t]he transitional rules ... preclude direct judicial review of the BIA‘s determinations of the threshold eligibility requirements of ‘extreme hardship’ and the discretionary determination of ‘good moral character‘. Id. In accord with this decision, the Ninth Circuit has found in several cases that it lacked jurisdiction to review BIA decisions denying suspension of deportation based on a finding of no extreme hardship. See Robles v. INS, 161 F.3d 14, 1998 WL 479464 (9th Cir. 1998) (unpublished); Sagrero v. INS, 161 F.3d 14, 1998 WL 479475 (9th Cir. 1998) (unpublished); Perez-Garcia v. INS, 161 F.3d 13, 1998 WL 479470 (9th Cir. 1998) (unpublished); Lee v. INS, 145 F.3d 1339, 1998 WL 276849 (9th Cir. 1998) (unpublished); Sontay v. INS, 142 F.3d 445, 1998 WL 225065 (9th Cir. 1998) (unpublished); Kechichian v. INS, 141 F.3d 1176, 1998 WL 133183 (9th Cir. 1998) (unpublished).
Likewise, in Skutnik, the Seventh Circuit stated that, where the petitioner requested review of a BIA decision based on extreme hardship, there can be no doubt that [the petitioner] wants review of a ‘discretionary decision‘. Skutnik, 128 F.3d at 514. However, because the alien in Skutnik conceded at oral argument that IIRIRA precluded judicial review of the BIA‘s decision, the court stated that it need not confront any of the interpretive issues that lurk beneath its surface. Id.
We join our sister circuits in holding that denials of suspension based on the
The crucial question in this case is what constitutes extreme hardship. These words are not self-explanatory, and reasonable men could easily differ as to their construction. But the Act commits their definition in the first instance to the Attorney General and his
delegates, and their construction and application of this standard should not be overturned by a reviewing court simply because it may prefer another interpretation of the statute.
See also INS v. Phinpathya, 464 U.S. 183, 195 (1984) (In INS v. Jong Ha Wang, we rejected a relaxed standard for evaluating the ‘extreme hardship’ requirement as impermissibly shifting discretionary authority from INS to the courts (emphasis added)). Thus, the Supreme Court has indicated that determinations of extreme hardship are discretionary. Finally, our court formerly routinely reviewed BIA decisions based on the extreme hardship element under an abuse of discretion standard, further indicating that such determinations are discretionary. Ramos, 695 F.2d at 184-85 (The decision whether to suspend the deportation of an alien who satisfies the three [§ 1254] requirements is ... discretionary ...).
In sum, because the BIA based its denial of Mr. Moosa‘s application for suspension on its discretion to do so,
III.
For the foregoing reasons, the petition challenging the decision of the LAU denying Moosa permanent residency and
DENIED IN PART; DISMISSED IN PART