Pеtitioner Josef Schroeck is a native and citizen of Germany facing removal from this country. He petitions for review of a decision of the Board of Immigration Appeals (Board) that affirmed a decision of an immigration judge (IJ) that denied, as a matter of discretion, his applications for a waiver of inadmissibility under 8 U.S.C. § 1182(h)(1)(B), and for adjustment of status based on his marriage to a U.S. citizen under 8 U.S.C. § 1255(a). We dismiss the petition for review in part, and deny the petition for review in part.
Petitioner first entered the United States legally in May 1996, and last entered legally in April 1998. He overstayed his visa and was noticed to appear for that reason on December 29, 1999. He obtained permission to stay until April 22, 2001. He married his current wife, a U.S. citizen, in June 2000. Additional grounds for removal were later added based on petitioner’s criminal conduct. He was convictеd of assault and domestic violence in 1999, of driving while impaired in 2000, and of assault in 2001. He had also been charged with sexual assault based on events occurring in 1997, but the charges were dismissed with prejudice and no conviction resulted.
The agency charged petitioner with being deportable under 8 U.S.C. § 1227(a)(2)(E)(i) based on his conviction for domestic violence; with being inadmissible at entry under § 1227(a)(1)(A) for having engaged in prostitution (the allеged sexual assault) 3 ; with being deportable under § 1227(a)(1)(B) based on overstaying his visa; and with being deportable under § 1227(a)(1)(C)(i) based on his conviction for a crime of violence (assault) for which a sentence of more than one year of imprisonment may be imposed. Petitioner conceded that he had overstayed his visa and was removable. He sought to avoid removal by applying for adjustment of status under 8 U.S.C. § 1255(a) based on his marriage to a U.S. citizen. Because one of the eligibility requirements for adjustment of status is to be admissible to the United States, petitioner also applied for a waiver of inadmissibility under 8 U.S.C. § 1182(h)(1)(B), to avoid the immigration consequences of his criminal convictions.
Although adjustment of status and a waiver of inadmissibility both have certain prerequisites that must be met, both forms of relief are matters ultimately left to the agency’s discretion to decide. See 8 U.S.C. §§ 1182(h), 1255(a). The IJ assumed arguendo that petitioner had met the prerequisites, and therefore considered only whether to exercise his discretion in petitioner’s favor in light of the extensive record of documentary and testimonial evidence that had been created.
The IJ stated in his decision that he might be willing to overlook petitioner’s three convictions, but for the testimony of a fеmale witness who said that petitioner forcibly raped her in 1997, when she was fourteen years old. Petitioner testified that he never touched the girl, and he presented a witness who testified that the girl consented tо sex with three other men on that evening. The IJ decided that petitioner’s witness was not credible based on evidence that she was not living in Colorado at the time and was not present to have witnessed the еvents about which she testi *950 fied. The IJ found “that [petitioner] did commit forcible rape upon a 14 year old girl,” and concluded that he would not exercise his discretion in favor of petitioner. Admin. R. at 122.
The Board, аcting through an individual member, affirmed the IJ’s decision in a short decision issued under 8- C.F.R. § 1003.1(e)(5). The Board reviewed the IJ’s findings of fact for clear error, see 8 C.F.R. § 1003.1(d)(3)(i), and his exercise of discretion de novo, see id. § 1003.1(d)(3)(h). The Board questioned whether it was appropriate to rely on the alleged sexual assault as the overriding adverse factor, considering that petitioner was never convicted of a crime. But the Board rejected petitioner’s argument that there was no evidence at all of a rape, and found no clear error in the IJ’s conclusion that petitioner “likely had some form of unlawful contact with the victim.” Admin. R. at 4. The Board noted that Colorado has laws against contributing to the delinquency of a minor, and “that, at best, [petitioner’s] behavior fell short with respect to the underlying purpose of the laws of Colorado, which spеcifically aim to protect children from the type of events that transpired at [petitioner’s] home and business.” Id. The Board concluded “that when the 1997 incident is considered along with the [petitioner’s] other adverse factors, in particular his three criminal convictions, the balance of the equities shift[s] considerably against the [petitioner], and thus the Immigration Judge’s ultimate decision to deny adjustment of status was сorrect.” Id.
Petitioner argues on appeal that: (1) for the IJ to give substantial weight to the evidence that petitioner had committed a sexual assault was error under
In re Thomas,
21 I. & N. Dec. 20,
We have jurisdiction to determine our jurisdiction.
Latu v. Ashcroft,
Our suggestion in Morales Ventura that the jurisdictional bar in § 1252(a)(2)(B)(i) was not absolute has now been superseded and made express by Congress. In the Real ID Act of 2005, Pub.L. No. 109-13, § 106(a)(1)(A)(iii), 119 Stat. 231, 310, Congress codified a new subparagraph, 8 U.S.C. § 1252(a)(2)(D), which expressly grants us jurisdiction to review constitutional claims and legal questions raised in a petition for review of the agency’s otherwise unreviewable discretionary decisions, notwithstanding the jurisdictional limitations in § 1252(a)(2)(B), (a)(2)(C), “or in any other provision of this Act,” that is, the Immigration and Nationality Act. This new subparagraph was made applicable “to cases in which the final administrative order of removal, deportation, оr exclusion was issued before, on, or after the date of the enactment of [the Real ID Act of 2005],” that is, May 11, 2005. Pub.L. No. 109-13, § 106(b), 119 Stat. 231, 311. In addition, § 1252(a)(2)(B)(i) was amended to reflect that the apparent jurisdictional bar is limited by the exception provided in § 1252(a)(2)(D). Pub.L. No. 109-13, § 106(a)(1)(A)(ii), 119 Stat. 231, 310. As a result, the jurisdictional limitations in § 1252(a)(2)(B)(i) and § 1182(h) have been abrogated in part by § 1252(a)(2)(D), and our jurisdictional inquiry in this case is to ask whether petitioner’s issues on appeal present either a constitutional claim or a question of law.
Petitioner’s first argument is that the IJ improperly based his adverse decision primarily on the evidence of petitioner’s alleged sexual assаult on a minor. Petitioner urges us to view this argument as a question of law, which, as we have shown above, would be within our newly-expanded jurisdiction. But the Board did its own decision in this case under 8 C.F.R. § 1003.1(e)(5) rather than an affirmancе without opinion under 8 C.F.R. § 1003.1(e)(4), and, “[a]s a result, the IJ’s decision does not constitute the final agency determination” that is reviewed on appeal.
Cruz-Funez v. Gonzales,
Petitioner also argues that the IJ improperly required him to prove his innocence and violated his constitutional rights to due process and to avoid double jeopardy, becаuse the IJ, in effect, acted as a criminal tribunal and found him guilty of forcible rape. The Board, sitting as an appellate court, did not reverse the IJ’s finding that petitioner had committed forcible rape, and the Board relied on the alleged sexual assault as one adverse factor weighing against petitioner, even though it considered petitioner’s three convictions as more serious adverse factors. See Admin. R. at 4-5. For this reason, we have jurisdiction over petitioner’s constitutional argument, notwithstanding that his challenge is nominally directed at the IJ’s decision, rather than the Board’s.
Petitioner’s constitutional arguments are without merit because they are based on mistaken premises. Removal proceedings are civil in nature, and the extensive constitutional safeguards attending criminal proceedings do not apply.
INS v. Lopez-Mendoza,
Moreover, the government’s burden in removal proceedings is to prove by clear and convincing evidence that the alien is subject to removal. 8 U.S.C. § 1229a(c)(3)(A). Because petitioner conceded removability, the burden shifted to him to show that he was both statutorily eligible for relief from removal and that the Attorney General should exercise his discretion to grant that relief. 8 C.F.R. §§ 1240.8(d), 1240.11(e). Since removal is not considered to be punishment,
Lopez-Mendoza,
Respondent’s motion to dismiss is granted in part and denied in part. To the extent that this court lacks jurisdiction, the petition for review is DISMISSED. To the extent that this court has jurisdiction, the petition for review is DENIED.
Notes
. The IJ did not sustain the charge that petitioner had engaged in prostitution.
. The government also argues that jurisdiction is barred under 8 U.S.C. § 1252(a)(2)(B)(ii), but that subsection deals with discretionary decisions other than those involved in this case.