United States Court of Appeals
For the First Circuit
No. 09-2583
CHUN XIN CHI,
Petitioner,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Lipez, Howard, and Thompson,
Circuit Judges.
Shen-Shin Lu and Law Offices of Shen-Shin Lu, on brief for
petitioner.
Tony West, Assistant Attorney General, Civil Division, United
States Department of Justice, John S. Hogan, Senior Litigation
Counsel, and Aimee J. Frederickson, Attorney, Office of Immigration
Litigation, on brief for respondent.
May 26, 2010
THOMPSON, Circuit Judge. Chun Xin Chi, a Chinese native
and citizen, entered this country illegally in 1989. Placed in
removal proceedings by the government in 1995, Chi has been trying
to find a way to stay here legally ever since.1 Having failed so
far, Chi now asks us to review a decision of the Board of
Immigration Appeals (BIA) denying a motion to reopen to allow him
to seek an adjustment of his immigration status. Detecting no
reversible error, we deny Chi's petition for judicial review.
I. Background
Chi entered the United States without valid travel papers
in 1989. Ordered by immigration officials in 1995 to show cause
why he should not be removed under § 241(a)(1)(A) of the
Immigration and Naturalization Act, now codified at 8 U.S.C. §
1227(a)(1)(A), Chi appeared before an immigration judge (IJ) in
1996, conceded removability and cross-applied for asylum,
withholding of removal, and other relief. Following an evidentiary
hearing in 1997, an IJ found Chi's testimony completely lacking in
credibility and rejected his requests for relief — though the IJ
1
Immigration authorities actually put Chi in deportation
proceedings. In 1996, however, Congress "replaced all references
to 'deportation' with 'removal.'" Morales-Izquierdo v. Gonzales,
486 F.3d 484, 488 n.3 (9th Cir. 2007)(en banc)(citing the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996, Pub.
L. No. 104–208, div. C, 110 Stat. 3009–546). To avoid confusion,
we use the current term "removal" throughout this opinion, even
when discussing the pre-1996 phase of the "deportation" proceeding.
See id.
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did grant Chi the privilege of voluntarily departing the United
States. See generally 8 U.S.C. § 1229c.
A form of discretionary relief, voluntary departure can
create a "win–win" scenario. Naeem v. Gonzales, 469 F.3d 33, 36
(1st Cir. 2006). Voluntary departure helps the government by
speeding up repatriation and cutting out costs associated with
removal, and it helps the alien by allowing him to pick his travel
destination and avoid some of the sanctions that accompany removal.
Id. at 36–37. There is a catch, however: an alien who does not
leave within the allotted time faces severe sanctions, including a
ten-year period of ineligibility for key "forms of immigration–
related relief." Id. at 37 (discussing 8 U.S.C. § 1229c(d)(1)).
Instead of leaving the country, Chi appealed the IJ's
decision to the BIA. Seeing ample record support for the IJ's
findings and conclusions, the BIA dismissed Chi's appeal in July
1998 and ordered him to depart within 30 days of its decision. Chi
did not ask us to review the BIA's order. Nor did he depart within
the prescribed voluntary departure period.
As the years passed a key milestone created a new
argument for Chi's staying here. Having become the beneficiary of
an approved "I–140" visa application sponsored by his employer, Chi
asked the BIA in 2006 to reopen his case to adjust his status. See
8 U.S.C. § 1255(i). Chi had filed two other motions to reopen
before 2006 — each either time– or number–barred by statute and
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regulation. See 8 U.S.C. § 1229a(c)(7)(A) (decreeing that only one
motion to reopen is permitted as of right); 8 U.S.C. §
1229a(c)(7)(C)(i) (declaring that a motion to reopen must be filed
within 90 days of the BIA's final order of removal); see also 8
C.F.R. § 1003.2(c)(2) (same). This time, however, the government
joined Chi's motion to reopen — a development that exempted his
motion from the time–and–number restrictions, see 8 C.F.R.
1003.2(c)(3)(iii), and caused the BIA to order a remand so an IJ
could consider Chi's adjustment of status application.
Chi, however, had another problem. Because he did not
depart within the assigned time, he faced a ten–year period of
ineligibility for adjustment of status relief. See 8 U.S.C. §
1229c(d)(1)(B). Conceding at a November 2007 hearing that Chi had
another nine months left on the ten–year ban, Chi's counsel asked
the IJ for a continuance. Noting that Chi knew the consequence of
not departing as required, the IJ ruled that Chi's demonstrated
lack of credibility undercut his bid for discretionary relief,
including his request for adjustment of status. Consequently, the
IJ denied Chi's continuance motion, denied his adjustment of status
application, and ordered him removed. The BIA affirmed in April
2009, holding that Chi had received a full and fair hearing and
that even though the ten–year ban had now ended, his well–
documented credibility problems precluded him from receiving
discretionary relief.
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Still hoping for a status adjustment, Chi filed another
motion to reopen with the BIA a month later, again citing to the
approval of the I-140 visa application.2 Chi claimed that the
expiration of the ten-year bar to adjustment of status relief
constituted "new" and previously unavailable "evidence" — even
though the BIA had just held that the ban's ending would not
entitle him to relief. Consistent with its earlier decision, the
BIA ruled in October 2009 that the ban's passing did not "overcome"
the prior adverse credibility finding. Concluding that Chi was
"undeserving" of discretionary relief, the BIA denied his motion.
This petition for judicial review followed.
II. Discussion
Chi's central claim is that the ten-year ban's passing
constituted "new material evidence" that the BIA did not address —
a failure that constituted both an abuse of discretion and a denial
of due process. Contending that the immigration laws are broken,
as exhibited by the government's failure to "arrest" and "deport"
him for overstaying the prescribed departure period, Chi seems to
2
We cannot tell from the record whether Chi's May 2009 motion
fell within any of the "few, narrowly circumscribed exceptions" to
the time–and–number rules for motions to reopen. See Peralta v.
Holder, 567 F.3d 31, 33 (1st Cir. 2009). The BIA did not say
whether it did. Consequently, even if Chi's May 2009 motion was
time–and–number barred, we could not deny his petition for judicial
review on that basis. See, e.g., Jimenez-Gonzalez v. Mukasey, 548
F.3d 557, 563 (7th Cir. 2008) (emphasizing that appellate courts
"cannot deny [a] petition based on a rationale that neither the
BIA, nor the IJ, relied upon").
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suggest that the government should be estopped from removing him
and that we should engage in "judicial law making" to help the laws
apply more fairly to all.
A. A jurisdictional matter
At the outset, the government contends that we lack
jurisdiction to review the BIA's order denying Chi's motion to
reopen for status adjustment. Citing 8 U.S.C. § 1252(a)(2)(B)(i),
the government starts by noting that no court has jurisdiction to
review the discretionary denial of an adjustment of status
application. Building on that foundation, the government stresses
that the BIA denied Chi's motion to reopen because he did not
deserve an affirmative exercise of discretion necessary for status
adjustment relief. From this, the government reasons that if we
cannot review a decision denying status adjustment, then we cannot
review a decision denying a motion to reopen premised on a ruling
that an alien is not ultimately entitled to status adjustment
relief.
The Supreme Court, however, has reserved for future
decision "whether review of a reopening denial would be precluded
if the court would lack jurisdiction over the alien's underlying
claim for relief." Kucana v. Holder, 130 S. Ct. 827, 839 n.17
(2010). Given that courts can bypass a close jurisdictional
question if the merits ruling is "foreordained" and does not create
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new precedent, see Seale v. INS, 323 F.3d 150, 152 (1st Cir. 2003),
we leave the issue for another day and turn to the merits.
B. The merits
1. No abuse of discretion
As an alien moving to reopen for status adjustment, Chi
had to show prima facie eligibility for status adjustment relief.
See, e.g., Falae v. Gonzales, 411 F.3d 11, 14 (1st Cir. 2005). He
also had to point to material, previously unavailable evidence that
he intended to introduce on remand. Id. Even if he met these
basic requirements, however, he still had to "persuade the BIA to
exercise its discretion affirmatively and order the case reopened."
Id. (citing, inter alia, 8 C.F.R. § 1003.2(a)). Reviewing the
BIA's order under the highly deferential abuse of discretion
standard, see, e.g., Oliveira v. Holder, 568 F.3d 275, 277 (1st
Cir. 2009), we conclude that the BIA had ample reasons to deny
Chi's motion. Cf. Raza v. Gonzales, 484 F.3d 125, 127 (1st Cir.
2007) (emphasizing that "the BIA enjoys considerable latitude in
deciding whether to grant or deny" a motion to reopen, adding that
"such a decision will stand unless the complaining party can show"
that the BIA misread the law or otherwise acted "in an arbitrary,
capricious, or irrational way").
Chi's abuse of discretion claim turns on his belief that
the expiration of the ten-year bar for status adjustment
represented "new and material evidence" that the BIA totally
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ignored. Chi is mistaken. Assuming for argument's sake that the
ban's ending was material and not previously available "evidence,"
the record reveals that the BIA explicitly factored that "evidence"
into its decision. Given Chi's lack of credibility, however, the
BIA held that the ban's passing did not "overcome" the conclusion
that Chi would not be granted a status adjustment because he did
not deserve a favorable exercise of discretion. The bottom line is
that the BIA weighed all the relevant factors, exercised
independent judgment, and expressed a solid and entirely rational
reason for denying Chi's motion to reopen. Consequently, the BIA
acted well within its discretion in denying Chi's motion. Cf.
Carter v. INS, 90 F.3d 14, 17 (1st Cir. 1996) (holding, inter alia,
that the BIA can deny a motion to reopen if it "reasonably
determines that the equities do not justify the application of a
discretionary balm"). Ultimately, then, Chi's argument fails.
2. No due process violation
Chi's due process challenge, which we review de novo,
see, e.g., Teng v. Mukasey, 516 F.3d 12, 17 (1st Cir. 2008), also
fails. Chi insists that the BIA violated his due process rights by
ignoring the "newly available evidence" of the ban's ending. But,
again, the BIA did no such thing. Rather, the BIA specifically
balanced the ban's passing against the prior adverse credibility
finding and pointedly concluded that Chi still did not merit
discretionary relief.
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In any event, a credible due process challenge "requires
that there be a 'cognizable liberty or property interest at
stake.'" McCreath v. Holder, 573 F.3d 38, 41 (1st Cir. 2009)
(quoting Jupiter v. Ashcroft, 396 F.3d 487, 492 (1st Cir. 2005)).
There is none here. A reopening is discretionary relief. See
Naeem, 469 F.3d at 38–39. Because an alien has no right or
entitlement to a reopening, he or she has no protected liberty or
property interest in that remedy. Id. (putting adjustment of
status in that same category). Consequently, we see no basis here
for a due process claim. See id.
3. No equitable estoppel or judicial rewrite
Stressing that the government failed to arrest and deport
him after he failed to leave the country as required in 1998, Chi
insists that the immigration laws are not working and that we must
do a judicial rewrite so that the laws will apply fairly to all.
To the extent that Chi is suggesting that the government's
"failure" to remove him then equitably estops it from removing him
now, that suggestion is a non-starter. Chi cites no authority and
offers no developed argument to support an equitable estoppel
claim, so we consider it waived. See, e.g., Nikijuluw v. Gonzales,
427 F.3d 115, 120 n.3 (1st Cir. 2005) (deeming waived "issues
adverted to in a perfunctory manner, unaccompanied by some effort
at developed argumentation") (quotations omitted); United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (explaining that "[i]t is
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not enough merely to mention a possible argument in the most
skeletal way, leaving the court to do counsel's work"). We also
reject Chi's request that we redraft the statutory and regulatory
scheme here. Under our constitutional system of separation of
powers, it is not our job to rewrite clear statutes to better
reflect "common sense and the public weal" — that is Congress's
job. See TVA v. Hill, 437 U.S. 153, 195 (1978) (quotations
omitted); see also Chevron, U.S.A., Inc. v. Natural Res. Def.
Council, Inc., 467 U.S. 837, 866 (1984) (noting that "federal
judges — who have no constituency — have a duty to respect
legitimate policy choices made by those who do," adding that "[t]he
responsibilities for assessing the wisdom of such policy choices
and resolving the struggle between competing views of the public
interest are not judicial ones").
III. Conclusion
For the reasons recorded above, we affirm the BIA's order
denying Chi's motion to reopen to adjust status and deny his
petition for judicial review.
So Ordered.
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