Baltazar Abel SOSA-VALENZUELA, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent.
No. 10-9592.
United States Court of Appeals, Tenth Circuit.
Aug. 31, 2012.
Turning back to Rule 702, the majority reasons that Marshall‘s testimony was “not admitted to refute Orr‘s claims that his fuel combination would be environmentally beneficial or his patent potentially valuable,” but instead was admitted to show “whether Orr intentionally misrepresented the results from the NIPER testing....” Maj. op. at 1091. But without Mr. Marshall or anyone else having been qualified as an expert, the jury could not possibly know what the results of the NIPER testing were. Given Mr. Marshall‘s inability as a non-expert to espouse a conclusion about the tests, the evidence reflects that Mr. Orr‘s representations about his fuel‘s effectiveness were just as likely to have been true as false. Mr. Marshall‘s statement to Orr only shows that Orr knew that a non-expert, such as Marshall, thought Orr‘s interpretation of the circumstances was wrong. For purposes of this trial, Mr. Marshall was no better able to apprise Orr of conclusions about the testing data than any NIPER employee who happened to see the data, draw some conclusion about it, and pass that conclusion on to Mr. Orr. Thus, I disagree with the majority‘s statement that what Mr. Marshall told Mr. Orr was relevant solely because “Orr chose Marshall ... to assist [Orr] in testing [Orr‘s fuel]....” Maj. op. at 1091.
The majority concludes that the trial judge gave proper limiting instructions to the jury regarding Mr. Marshall‘s testimony. But the absence of expert conclusions about the actual results of NIPER‘s testing on Orr‘s fuel renders Marshall‘s testimony wholly irrelevant to the issues at trial. The majority dismisses this concern as going to the sufficiency of the evidence rather than its admissibility, and concludes that Mr. Orr has abandoned any sufficiency challenge. Maj. op. at 1091 n. 26. I respectfully disagree with this approach.
Mr. Marshall‘s testimony contained inadmissible expert conclusions, bearing no credentials of expertise and being therefore incapable of cure by limiting instructions. Moreover, the remaining testimony of Mr. Marshall was inadmissible because it was irrelevant. The irrelevance of Marshall‘s testimony when the expert conclusions are stripped away shows that the admission of Mr. Marshall‘s testimony, and that of others,5 was not harmless error.
*
*
*
For the foregoing reasons, I respectfully dissent from the majority‘s disposition of the expert testimony issue.
Dara S. Smith, Office of Immigration Litigation (Tony West, Assistant Attorney General, Civil Division, and David V. Bernal, Assistant Director, Office of Immigration Litigation, with her on the brief), Department of Justice, Washington, District of Columbia, for Respondent.
Before BRISCOE, Chief Circuit Judge, TYMKOVICH, Circuit Judge, and EAGAN,* District Judge.
TYMKOVICH, Circuit Judge.
This appeal is before us a second time. Lacking a final order of deportation in the prior appeal, we remanded to the BIA to cure the jurisdictional defect. Sosa-Valenzuela v. Gonzales, 483 F.3d 1140 (10th Cir. 2007). The issues raised in that case relating to the denial of a waiver of deportation are now properly before us. In addition, on remand the petitioner applied for an adjustment of status based on his
Baltazar Sosa-Valenzuela illegally entered the United States from Mexico in 1981 at the age of three, and became a lawful permanent resident in 1992. In 1994, when he was sixteen, he shot and seriously injured a gang member. He pleaded guilty to attempted murder in the second degree and to unlawful possession of a firearm by a juvenile. After a successful post-conviction ineffectiveness of counsel petition, the state district court amended Sosa-Valenzuela‘s guilty plea to first degree assault and crime of violence with a deadly weapon.
In 1996, while Sosa-Valenzuela was in juvenile detention, the Immigration and Naturalization Service, now the Department of Homeland Security (DHS) issued Sosa-Valenzuela a show cause order, charging him as deportable because of his criminal conviction under
Sosa-Valenzuela now appeals the BIA‘s decision and order of deportation on three grounds: (1) He contests the procedural regularity of the BIA decision as a collateral attack on the IJ‘s waiver decision; (2) he challenges the merits of the BIA‘s decision to reverse the IJ‘s waiver, arguing that it conflicts with the Supreme Court‘s decision in Judulang v. Holder, ___ U.S. ___, 132 S.Ct. 476, 181 L.Ed.2d 449 (2011); and (3) he argues the BIA abused its discretion in denying him an adjustment of status based on his marriage to an American citizen.
We find the BIA was not precluded from reviewing the IJ‘s waiver decision, but we must remand to the BIA so that it may evaluate its decision in light of the Supreme Court‘s ruling in Judulang. We affirm the BIA‘s discretionary denial of adjustment of status.
I. Procedural Background
This case has a lengthy procedural history, but a brief review of it is necessary to understand Sosa-Valenzuela‘s claims on appeal.
IJ Proceedings
While his deportation proceedings were pending, Sosa-Valenzuela petitioned the Department of Justice Executive Office for Immigration Review for a waiver from removal under the provisions of § 212(c) of the Immigration and Nationality Act (INA).
After an evidentiary hearing, the immigration judge found that Sosa-Valenzuela was eligible for a waiver and that the equities, particularly his juvenile status at the time of his convictions, his community service, dependent family in the United States, and lack of family in Mexico, supported the grant of discretionary relief.
Rather than file a direct appeal of the IJ‘s decision, DHS filed a motion to reconsider. It argued that the IJ‘s decision was flawed because Sosa-Valenzuela was no
Appeal to the BIA
DHS appealed the denial of the motion to reconsider to the BIA. The BIA sustained DHS‘s appeal, granted the motion to reconsider, and vacated the IJ‘s § 212(c) waiver.
In ruling in favor of DHS, the BIA relied on its decision in Matter of Brieva-Perez, 23 I. & N. Dec. 766 (BIA 2005), a case decided after the IJ‘s decision to deny the motion to reconsider and while DHS‘s appeal was pending before the BIA. Matter of Brieva-Perez held that aliens with a conviction for aggravated assault (including Sosa-Valenzuela‘s conviction for first degree assault) do not meet the eligibility requirements for a § 212(c) waiver. Applying this interpretation to Sosa-Valenzuela, the BIA denied the waiver.
Tenth Circuit Appeal
Sosa-Valenzuela appealed the BIA‘s decision to this court, but we found we lacked appellate jurisdiction because the record did not reveal that there had ever been a final order of deportation. Sosa-Valenzuela v. Gonzales, 483 F.3d 1140 (10th Cir. 2007). We remanded the matter to the BIA “for a finding on deportability and disposition of any other outstanding issues in the case.” Id. at 1147. The BIA then remanded it to the IJ.
Remand Before the IJ
On remand, the IJ confirmed he entered a final order of deportation in 2004 when he made his initial ruling on the waiver but that order had not been included in the record on appeal. After confirming the existence of an order of deportation and his earlier waiver decision, the IJ went on to consider an additional ground for a waiver of deportation—Sosa-Valenzuela had applied for an adjustment of status to lawful permanent resident based on his marriage in 2001 to an American citizen and the birth of his two children. The IJ granted this alternative form of relief, finding that in the period since the initial waiver in 2004, Sosa-Valenzuela “has had an excellent record ... of employment, volunteer work, and taking care of his family.” R. 90.
Second Appeal to the BIA
DHS appealed again, and again the BIA reversed. The BIA disagreed with the IJ‘s discretionary ruling, and, in re-weighing the equities, found that the positive factors in Sosa-Valenzuela‘s life did not outweigh the seriousness of his prior felony conviction.
Sosa-Valenzuela appealed, and both BIA‘s denial of the § 212(c) waiver and its denial of the adjustment of status are now before us in this appeal.
II. Jurisdiction
We have jurisdiction under
III. Analysis
This appeal requires us to resolve three questions. First, was the BIA correct in determining it had the authority to reverse the IJ‘s § 212(c) waiver decision through the appeal of a motion to reconsider? Then, if so, was the BIA correct in finding Sosa-Valenzuela was categorically ineligible for a waiver based on the BIA‘s decision in Matter of Brieva-Perez, decided while the appeal was pending before the BIA? Third, did the BIA properly reject the IJ‘s granting of an adjustment of status based on Sosa-Valenzuela‘s marriage to an American citizen?
A. BIA Review of § 212(c) Waiver
Sosa-Valenzuela first argues the IJ‘s original granting of the § 212(c) waiver was a final order that was not timely appealed by DHS. Thus, he contends, the BIA‘s subsequent reversal of the waiver through an appeal of DHS‘s motion to reconsider was an impermissible collateral attack with no legal effect.
To understand this argument, a brief review of the procedural posture of the case is helpful. Although DHS commenced deportation proceedings in 1997, while those proceedings were pending Sosa-Valenzuela timely petitioned for a § 212(c) waiver. That waiver was granted on October 12, 2004. Two weeks after that decision, DHS filed a motion to reconsider with the IJ. But while the motion to reconsider was pending, the 30-day time to file a direct appeal of the waiver decision with the BIA expired. The IJ then denied the motion to reconsider, and DHS timely appealed that decision to the BIA. The BIA, exercising de novo review, granted the motion for reconsideration and reversed the IJ‘s grant of the § 212(c) waiver. The BIA‘s reversal was based on a determination that Sosa-Valenzuela was ineligible for relief because of his prior criminal conviction, relying on Matter of Brieva-Perez, 23 I. & N. Dec. 766 (BIA 2005), a case the BIA decided while DHS‘s appeal was pending.
Based on this procedural situation, Sosa-Valenzuela makes two arguments. First, the IJ‘s waiver decision had become a final judgment because DHS did not file a direct appeal, and, therefore, Sosa-Valenzuela‘s § 212(c) waiver became a vested right when the time to appeal expired. He also argues that even if the IJ‘s decision could be collaterally attacked through a motion for reconsideration, the BIA could only review the grounds for reconsideration raised in the motion, and not the grounds the BIA ultimately relied on—a new precedent of the BIA.
We find no error in the BIA‘s decision on the appeal of the motion for reconsideration. Although a “decision of the Immigration Judge becomes final upon waiver of appeal or upon expiration of the time to appeal if no appeal is taken whichever occurs first,”
An Immigration Judge may upon his or her own motion at any time, or upon motion of the Service or the alien, reopen or reconsider any case in which he or she has made a decision, unless jurisdiction is vested with the Board of Immigration Appeals.
After the IJ denied DHS‘s motion to reconsider, DHS timely appealed the decision to the BIA. The BIA‘s appellate jurisdiction is similarly broad: “The Board may review questions of law, discretion, and judgment and all other issues in appeals from decisions of immigration judges de novo.”
The Board may at any time reopen or reconsider on its own motion any case in which it has rendered a decision.... The decision to grant or deny a motion to reopen or reconsider is within the discretion of the Board, subject to the restrictions of this section. The Board has discretion to deny a motion to reopen even if the party moving has made out a prima facie case for relief.
Notwithstanding these broad powers, Sosa-Valenzuela argues the BIA was limited in its appellate review to the issue raised by DHS in its motion to reconsider. While a motion to reconsider before the IJ must “state the reasons for the motion by specifying the errors of fact or law in the Immigration Judge‘s prior decision,”
“[T]he BIA is required to apply new law to its review.” Valdiviezo-Galdamez v. Attorney General of United States, 663 F.3d 582, 602-03 (3d Cir. 2011) (holding that the BIA did not err in relying on new
Given the scope of the BIA‘s appellate authority, Sosa-Valenzuela makes several arguments, none of which we find persuasive. First, he argues that the IJ‘s § 212(c) decision became final after thirty days and the BIA lost any power to review the merits of the decision. He points to the Supreme Court‘s decision in Stone v. INS, 514 U.S. 386, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995), where the Court considered the scope of federal court review of final orders from the BIA. In that case, the alien asked for a suspension of deportation, which was denied by an Immigration Judge and the BIA on appeal. After a motion for reconsideration, both the IJ and the BIA again denied relief. The alien then sought judicial review both of the original order denying suspension and of the order denying the motion to reconsider. The circuit court found it lacked appellate jurisdiction over the suspension order because the time to seek judicial review had expired, but the court could exercise jurisdiction over the timely filed motion to reconsider.
The Supreme Court agreed, finding Stone‘s original suspension order was final and the alien should have sought judicial review in the federal courts even while the motion to reconsider was pending. The Supreme Court rejected the argument that a motion to reconsider tolled the period for seeking appellate review.
Stone does not impose any restrictions on the appellate jurisdiction of the BIA. Instead, it applies to parties seeking judicial review of agency action in the federal courts. As the applicable statute then provided, an appeal to the circuit courts “shall be the sole and exclusive procedure for, the judicial review of all final orders of deportation ... made against aliens within the United States” and “a petition for review may be filed not later than 90 days after the date of the issuance of the final deportation order.”
No comparable limitations exist on the BIA‘s authority to administratively review immigration appeals. Stone says nothing about the scope of the BIA‘s internal administrative process, and cannot be read to narrow the Board‘s broad authority, granted by statute and regulation. In fact, as a matter of administrative practice and structure, immigration proceedings often involve dual appeals of removal orders and motions to reconsider. As the regulations provide, both the IJ and BIA may, upon motion or sua sponte, “reopen or reconsider any case” in which the judge or Board has made a decision.
Guevara does not apply here. First, the motion to reconsider in that case occurred over two years after the grant of relief had been decided by the BIA, and did not involve a challenge to the decision of the IJ. Here, DHS‘s motion to reconsider was filed with the IJ who made the initial decision before the time to file an appeal of the § 212(c) decision had expired, and sought the reversal of the waiver decision. The administrative process was not yet complete and neither the IJ or the BIA had issued any decision, let alone a final decision. This is far different than the posture of the motion at issue in Guevara where the administrative appeals process up to and including the BIA had been long completed.5
Even if the BIA had the power to review the § 212(c) waiver decision, Sosa-Valenzuela argues that these broad powers of collateral review violate his due process rights. But in immigration proceedings, “a petitioner has no liberty or property interest in obtaining purely discretionary relief.” Arambula-Medina v. Holder, 572 F.3d 824, 828 (10th Cir. 2009) (citations omitted). “Because aliens do not have a constitutional right to enter or remain in the United States, the only protections afforded are the minimal procedural due process rights for an opportunity to be heard at a meaningful time and in a meaningful manner.” Id. (quotation omitted). Sosa-Valenzuela has had the opportunity to be heard, and “any alleged liberty interest [in discretionary immigration relief] must be created by statute or regulation.” Id. “In order for the regulation to create a liberty interest, it must substantively limit the exercise of official discretion through specifically defined criteria that guide official decision making.” Aguilera v. Kirkpatrick, 241 F.3d 1286, 1293 (10th Cir. 2001) (rejecting a due process challenge to the BIA‘s denial of a motion to reopen because “the regulation lacks criteria or standards limiting official discretion“). There are no such limitations here.
In sum, we conclude the BIA had the de novo authority to review the IJ‘s waiver decision in an appeal of DHS‘s motion for reconsideration.
B. BIA‘s Reversal of Section 212(c) Waiver
Having found the BIA had the authority to consider the IJ‘s waiver decision on appeal, we turn to the merits of that decision. The BIA found that Sosa-Valenzuela was not eligible for a § 212(c) waiver, applying Matter of Brieva-Perez, 23 I. & N. Dec. 766 (BIA 2005). In Matter of Brieva-Perez the BIA determined that waiver applicants with convictions for an aggravated felony crime of violence are categorically ineligible for § 212(c) relief, formally adopting the so-called “comparable-grounds” rule, which “evaluates whether the ground for deportation charged in a case has a close analogue in the statute‘s list of exclusion grounds.” Judulang, 132 S.Ct. at 481.7 Under this approach, Sosa-Valenzuela was ineligible for relief.
After the BIA decided Matter of Brieva-Perez, its analysis generated conflicting decisions in the circuit courts. The Second Circuit, for example, rejected the comparable-grounds approach, see Blake v. Carbone, 489 F.3d 88, 103 (2d Cir. 2007), while the First, Third, and Sixth Circuits upheld the BIA‘s policy, Kim v. Gonzales, 468 F.3d 58, 62-63 (1st Cir. 2006); Caroleo v. Gonzales, 476 F.3d 158, 162-163, 168 (3d Cir. 2007); Koussan v. Holder, 556 F.3d 403, 412-414 (6th Cir. 2009).
While this appeal was pending, the Supreme Court granted certiorari to resolve the circuit split, and ruled against the BIA. Judulang v. Holder, ___ U.S. ___, 132 S.Ct. 476, 181 L.Ed.2d 449 (2011). In Judulang, the Court found that the BIA‘s approach in Matter of Brieva-Perez “does not rest on any factors relevant to whether an alien (or any group of aliens) should be deported,” but “instead distinguishes among aliens—decides who should be eligible for discretionary relief and who should not—solely by comparing the metes and bounds of diverse statutory categories into which an alien falls.” 132 S.Ct. at 487. This BIA policy has “no connection to the goals of the deportation process or the rational operation of the immigration laws.” Id. Accordingly, it was arbitrary and capricious under the Administrative Procedures Act to rely on this approach to determine eligibility for relief from deportation. The Supreme Court remanded Judulang to the BIA with instructions to develop new criteria for determining who is eligible to apply for § 212(c) waivers. Id. at 490.
DHS asks us to find any further remand would be futile. A § 212(c) waiver remains a discretionary remedy, and the BIA has already indicated its unwillingness to exercise discretion in favor of Sosa-Valenzuela. We disagree. “Generally speaking, a court of appeals should remand a case to an agency for decision of a matter that statutes place primarily in agency hands,” and “[t]his principle has obvious importance in the immigration context.” INS v. Orlando Ventura, 537 U.S. 12, 16 (2002). Remand is the preferred remedy because the BIA “can bring its expertise to bear upon the matter; it can evaluate the evidence; it can make an initial determination; and, in doing so, it can, through informed discussion and analysis, help a court later determine whether its decision exceeds the leeway that the law provides.” Id. at 16-17; See also Negusie v. Holder, 555 U.S. 511, 523 (2009).
Remand may well lead to a predictable result in this case. Nonetheless, “[b]ecause an agency has a duty not only to reach an outcome, but to explain that outcome, we intrude on the agency‘s authority not only by reaching a certain result on the merits ... but also by supporting a result reached by the agency with reasoning not explicitly relied on by the agency.” Mickeviciute v. INS, 327 F.3d 1159, 1165 (10th Cir. 2003). We should not presume a result on remand, and therefore “resist the temptation of stepping out of our limited judicial role even where resolving the merits ourselves may seem an easier, more efficient, and more palatable course.” Id.8
It is up to the BIA in the first instance to apply its post-Judulang approach to Sosa-Valenzuela‘s request for a § 212(c) waiver. We therefore remand that question to the BIA.
C. Adjustment of Status
The final issue is whether Sosa-Valenzuela is eligible for adjustment of status on an alternate ground from his § 212(c) waiver—his 2001 marriage to an American citizen.
While Sosa-Valenzuela‘s case was on remand, he applied for an adjustment of status and relief from deportation, pursuant to
DHS appealed and once again the BIA reversed, exercising its authority to review questions of discretion de novo, see
Before the respondent may be granted adjustment of status, he must show that he merits such relief as a matter of discretion. We consider the existence of favorable factors such as family ties, hardship and length of residence in the United States. Where adverse factors are present, however, the respondent may need to present evidence of unusual or even outstanding equities ... Indeed, even nonviolent aggravated felonies will generally constitute significant negative factors militating strongly against a favorable exercise of discretion.
R. 4-5 (citations omitted). Applying this standard, the BIA went on to evaluate the equities and deny adjustment of status. It reviewed all of the favorable factors supporting the IJ‘s decision, including his family situation and efforts at rehabilitation. But the BIA, in the end, found that although Sosa-Valenzuela presented “many favorable equities, given the serious and violent nature of his convictions, and the fact that he has been convicted for an aggravated felony, we conclude that he does not merit a favorable exercise of discretion.” R. 5.
Our review of the BIA‘s decisions is limited, and we do not have jurisdiction to review an exercise of discretion. Under
It is true
Sosa-Valenzuela seeks to overcome the application of the jurisdiction-bar, claiming that the BIA applied the wrong legal standard. He argues the BIA misapplied its precedents in failing to weigh the positive equities more heavily than the negative equities. But that is only another way of challenging the Board‘s discretionary conclusion, which we do not have jurisdiction to do.
While the BIA did not explain the precise weight it gave to each factor, it is clear the BIA applied a totality of the circumstances, individualized, case-specific analysis to Sosa-Valenzuela‘s application. That complies with BIA precedent: “In making discretionary determinations, we weigh the favorable and adverse factors presented to decide whether on balance, the totality of the evidence before us indicates that the respondent has adequately
Even so, Sosa-Valenzuela argues that the BIA wrongly applied the balancing standard it has developed for adjustment of status cases such as his. He points to two cases he claims the BIA cited but should not have relied on—Matter of Arai, 13 I. & N. Dec. 494 (BIA 1970), which addressed adjustments of status for criminal aliens with adult, rather than juvenile, criminal records, and Matter of K-A-, 23 I. & N. Dec. 661 (BIA 2004), which dealt with a discretionary relief in asylum cases. Whether or not the BIA properly relied on these cases, the jurisdictional bar still applies: “Recasting challenges to factual ... determinations as due process or other constitutional claims, however, is clearly insufficient to give this Court jurisdiction under
And, in any event, the cases cited by Sosa-Valenzuela only illustrate how, as a general matter, the BIA views competing equitable considerations. In Matter of Arai, for example, the BIA discussed the relative weighing of equitable factors, positive and negative: “Where adverse factors are present in a given application, it may be necessary for the applicant to offset these by a showing of unusual or even outstanding equities“—exactly what the BIA did here. 13 I. & N. Dec. at 496.9 And in citing Matter of K-A-, the BIA was only noting that a history of violent crime is an especially serious matter. But these precedents do not require or preclude the BIA from weighing the equities as it did here. Instead the BIA looked at all of the factors, both pro and con, and made a considered decision denying relief.
In sum, Sosa-Valenzuela cannot point to any precedent the BIA failed to follow or misapplied in its discretionary review of his application for adjustment of status. The Board thus did not commit legal error in its decision denying adjustment of status based on marriage.
IV. Conclusion
For the reasons discussed above, we AFFIRM the BIA‘s denial of adjustment of status, and REMAND to the BIA for further proceedings regarding the § 212(c) waiver.