United States Court of Appeals
For the First Circuit
No. 09-1394
VLADAS ZAJANCKAUSKAS,
Petitioner,
v.
ERIC H. HOLDER, JR.,
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Torruella and Boudin, Circuit Judges.
Robert L. Sheketoff, Thomas Butters, and Butters Brazilian LLP
on brief for petitioner.
William Henry Kenety V, Edgar Chen, Senior Trial Attorneys,
United States Department of Justice, Lanny A. Breuer, Assistant
Attorney General, Criminal Division, Eli M. Rosenbaum, Director,
and Susan L. Siegal, Senior Litigation Counsel, on brief for
respondent.
July 13, 2010
TORRUELLA, Circuit Judge. Petitioner Vladas
Zajanckauskas is a ninety-five year old Lithuanian native who has
been in the United States since 1950. He appeals an order of the
Board of Immigration Appeals ("BIA") affirming the Immigration
Judge's ("IJ") decision to order his deportation from the United
States. Because we find we are without jurisdiction to review
either the IJ's or the BIA's (collectively "the Agency") decision,
we dismiss the petition.
I.
Petitioner's citizenship was revoked in 2005 because the
district court found that he had been deployed to Warsaw with a
detachment of Trawniki-trained guards who participated in the Nazi
liquidation of the Jewish ghetto there and that he lied about his
wartime whereabouts by concealing this fact in his application for
an entry visa. United States v. Zajanckauskas, 353 F. Supp. 2d 196
(D. Mass. 2005); see also United States v. Zajanckauskas, 441 F.3d
32 (1st Cir. 2006) (affirming). On June 20, 2006, the government
served Petitioner with a Notice to Appear ("NTA") charging him
removable (1) under § 237(a)(4)(D) of the Immigration and
Nationality Act ("INA"), 8 U.S.C. § l227(a)(4)(D), as an alien who
assisted in Nazi-sponsored persecution (Count I);1 (2) under INA
§ 237(a)(l)(A), 8 U.S.C. § 1227(a)(1)(A), because he was
inadmissible at the time of entry under the Displaced Persons Act
1
Count I was later withdrawn by the government.
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of 1948 ("DPA"), 62 Stat. 1009 § 10, as an alien who willfully made
misrepresentations of material fact for the purpose of gaining
admission as a displaced person (Count II); and (3) under INA
§ 237(a)(l)(A), 8 U.S.C. § 1227(a)(1)(A), because he was
inadmissible at the time of entry under the Immigration Act of
1924, 43 Stat. 153 § 13(a), as an alien not in possession of a
valid visa as a result of his misrepresentations (Count III). The
IJ applied collateral estoppel to the factual and legal conclusions
made by the district court that revoked Petitioner's citizenship,
see Zajanckauskas, 353 F. Supp. 2d at 196-203, and ordered
Petitioner removed to Lithuania based on Counts II and III in the
NTA.
Petitioner does not dispute the findings of fraud.
Rather, he seeks relief from removal in the form of a waiver under
INA § 237(a)(1)(H), 8 U.S.C. § 1227(a)(1)(H).2 After a hearing,
2
In relevant part:
(H) Waiver authorized for certain misrepresentations
The provisions of this paragraph relating to the removal
of aliens within the United States on the ground that
they were inadmissible at the time of admission as aliens
described in section 1182(a)(6)(C)(i) of this title,
whether willful or innocent, may, in the discretion of
the Attorney General, be waived for any alien (other than
an alien described in paragraph (4)(D)) who--
(i)(I) is the spouse, parent, son, or daughter of a
citizen of the United States or of an alien lawfully
admitted to the United States for permanent residence;
and (II) was in possession of an immigrant visa or
equivalent document and was otherwise admissible to the
United States at the time of such admission except for
those grounds of inadmissibility specified under
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the IJ issued a 41-page decision denying Petitioner's claims on
three separate grounds. First, the IJ held that Petitioner was
statutorily ineligible to receive the waiver because the government
had presented evidence that Petitioner assisted in Nazi persecution
by participating in the destruction of the Warsaw Ghetto and that
Petitioner failed to rebut the government's evidence by a
preponderance of the evidence. Second, the IJ held that Petitioner
was not "otherwise admissible" at the time of his entry, as
required by the statute. Finally, the IJ held that regardless of
Petitioner's statutory eligibility for a waiver, after weighing all
the factors, Petitioner's "misrepresentations to United States
Government officials [for] approximately sixty years" did not merit
the IJ's exercise of discretion in granting the waiver.
Petitioner appealed to the BIA, which agreed with the IJ
on all points and affirmed. Petitioner timely appealed to this
Court.
II.
On appeal, Petitioner argues that the Agency erred in its
conclusion that he was statutorily ineligible for a waiver
paragraphs (5)(A) and (7)(A) of section 1182(a) of this
title which were a direct result of that fraud or
misrepresentation.
(emphasis added). Paragraph (4)(D) refers to aliens who
"[p]articipated in Nazi persecution, genocide, or the commission of
any act of torture or extrajudicial killing" as defined by 8 U.S.C.
§§ 1182(a)(3)(E)(i), (ii), and (iii). Petitioner contests the IJ's
holdings as to the underlined portions.
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forgiving the two fraud-related grounds of removal under INA
§ 237(a)(1)(H) and also in its determination that even if
Petitioner was not statutorily barred from relief, he did not merit
a favorable exercise of the Agency's discretion. As a threshold
matter, the government argues that we must dismiss Petitioner's
appeal because our opinion would be no more than advisory in this
case.3 Specifically, the government contends that we lack
jurisdiction to review the discretionary ground upon which the IJ
rested his decision, and since a reversal of the two grounds we
have jurisdiction to review would not change the outcome, review of
the legal questions would be moot. We agree.
Petitioner urges us to review various legal issues
surrounding the Agency's determination that he was ineligible for
the waiver. However, 8 U.S.C. § 1252(a)(2)(B)(ii) establishes that
we are without jurisdiction to review "any other decision of the
Attorney General or the Secretary of Homeland Security the
authority for which is specified under this subchapter to be in the
discretion of the Attorney General or the Secretary of Homeland
Security." Cf. Onikoyi v. Gonzales, 454 F.3d 1, 3 (1st Cir. 2006)
("We do not have jurisdiction to review the discretionary denial of
waiver[s] of inadmissibility under 8 U.S.C. § 1252(a)(2)(B)(i)").
The statute under which Petitioner seeks protection plainly falls
within this rubric, as it states that "[t]he provisions . . .
3
Petitioner failed to respond to this argument by the government.
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relating to the removal of aliens within the United States on the
ground that they were inadmissible at the time of admission . . .
may, in the discretion of the Attorney General, be waived for any
alien . . . ." 8 U.S.C. § 1227(a)(1)(H); cf. Kucana v. Holder, 130
S. Ct. 827, 831 (2010) (holding that § 1252(a)(2)(B)(ii)'s
jurisdictional bar applies "only to Attorney General determinations
made discretionary by statute"). While "some discretionary
determinations do present underlying, reviewable questions of law,"
Lumataw v. Holder, 582 F.3d 78, 85, 86 (1st Cir. 2009)(finding that
"the question of whether the IJ and BIA applied the correct filing
deadline in assessing the timeliness of [petitioner's] asylum
application constitute[d] a 'question of law'"), this is not such
a case.
Petitioner argues that the "the IJ denied discretionary
relief here because of the firmly held conviction that [Petitioner]
engaged in serious past acts." The IJ, however, did more than what
Petitioner suggests. After considering the balance of favorable
equities supporting relief for Petitioner -- including favorable
factors such as his advanced age and medical conditions, his nearly
sixty years in the United States, his large and very close family,
and the fact that he has no criminal record in the United States --
the IJ found that Petitioner did not merit the Agency's exercise of
discretion. The IJ found decisive that Petitioner (1) had failed
to disclose his Trawniki service when he arrived to the United
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States and instead falsified information in his Application for an
Immigrant Visa; (2) further concealed his Trawniki service by
indicating that his wife was born in Trakai, Poland, rather than
Trawniki, in various immigration documents signed under oath; (3)
stated under oath in his denaturalization proceedings that he
"thinks" he would lie again to remain in the United States; and (4)
offered what the IJ termed implausible, inconsistent, and
"minimized" testimony with respect to his service with the German
military, leading to adverse credibility findings made by the
Massachusetts District Court and the IJ himself. All of these
grounds are surely factual and within the IJ's discretion, and as
such, we are powerless to review them. Lumataw, 582 F.3d at 85
("[D]iscretionary or factual determinations continue to fall
outside our jurisdiction") (internal quotation and other marks
omitted).
Even if we agree with Petitioner as to the legal issues
he raises on appeal, the result in his case -- removal from the
United States -- is pre-ordained by the Agency's discretionary
holding. Thus, we must dismiss his appeal. Ekasinta v. Gonzales,
415 F.3d 1188, 1191 (10th Cir. 2005) ("[I]f there are two
alternative grounds for a decision and we lack jurisdiction to
review one, it would be beyond our Article III judicial power to
review the other. Absent authority to review the discretionary
ground, any opinion of ours reviewing the nondiscretionary ground
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could not affect the final order's validity and so would be
advisory only."). We dismiss the petition for lack of appellate
jurisdiction.
Dismissed.
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