Corchado-Moya v. Gonzales

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 19 2005
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk

GUADALUPE CORCHADO-MOYA,

Petitioner,

v. No. 04-9526
(No. A76-800-906)
ALBERTO R. GONZALES, *
(Petition for Review)

Respondent.

ORDER AND JUDGMENT **

Before LUCERO , McKAY , and ANDERSON , Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

*
On February 4, 2005, Alberto R. Gonzales became the United States
Attorney General. In accordance with Rule 43(c)(2) of the Federal Rules of
Appellate Procedure, Mr. Gonzales is substituted for John Ashcroft as the
Respondent in this action.
**
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
 Petitioner Guadalupe Corchado-Moya is a native and citizen of Mexico

facing removal from this country. He petitions for review of the decision of the

Board of Immigration Appeals (Board) that denied, as a matter of discretion, his

applications for both a waiver of inadmissibility under INA § 212(h), 8 U.S.C.

§ 1182(h), and adjustment of status under INA § 245(i), 8 U.S.C. § 1255(i). We

conclude that we lack jurisdiction to review these discretionary decisions, and we

therefore dismiss the petition for review.

Petitioner entered the United States without inspection in 1992 or 1993. He

was convicted of criminal trespass in 1993, see Admin. R. at 74-75, and was

convicted of false reporting in 1994, id. at 76-77. In 1995, he fathered a

daughter, who is a United States citizen. In 1996, he married his daughter’s

mother. His wife became a United States citizen. In 1998, petitioner was arrested

for possession with intent to sell cocaine, id. at 139-41. On the advice of his

former counsel, he pleaded guilty to that state drug charge. He was ordered to

pay a $3000 fine and sentenced to two years of imprisonment, which was

deferred. His wife obtained an immigrant visa for petitioner in 1998. In 1999, he

applied for adjustment of status to legal permanent resident based on his marriage

to a United States citizen, which was denied by the former Immigration and

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Naturalization Service (INS) 1
in September 2001. The INS then placed petitioner

in removal proceedings by filing a notice to appear (NTA) with the Immigration

Court on October 29, 2001, charging petitioner with being removable for having

entered the United States without inspection and for having been convicted of

possession with intent to sell cocaine. After the NTA was served, petitioner, with

new counsel, moved in the state court to withdraw his guilty plea based on the

ineffective assistance of his former counsel. The state court granted the motion,

dismissed the cocaine conviction, and accepted petitioner’s guilty plea to

possession of less than one ounce of marijuana. Id. He was fined $80 on the

marijuana conviction. Id.

In his removal proceedings, petitioner conceded that he was removable

based on entry without inspection, but denied that he had been convicted of

possession with intent to sell cocaine. Petitioner requested both a § 212(h)

waiver to excuse the conviction for possession of marijuana and adjustment of

status. The immigration judge (IJ) found that petitioner’s trafficking conviction

was dismissed, and that he was not subject to removal on that ground. Admin. R.

at 57-58. He further found that petitioner was eligible for a § 212(h) waiver

because his citizen wife and daughter would suffer extreme hardship if he were

1
On March 1, 2003, the former INS was abolished and its functions divided
among new agencies within the newly-formed Department of Homeland Security.
We continue to refer to the agency as “INS” in this decision.

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removed. See 8 U.S.C. § 1182(h)(1)(B). The IJ denied the waiver and adjustment

of status in the exercise of his discretion, however. The IJ stated that he was not

concerned about petitioner’s marijuana conviction, if it had been petitioner’s only

conviction. Admin. R. at 62. The IJ found based on an affidavit for the arrest

warrant associated with the dismissed trafficking conviction, that petitioner was

involved in the trafficking of drugs, and he had two other convictions as well. Id.

at 61-62.

The Board affirmed, adding that the agency’s regulations authorized the IJ

to consider the affidavit for arrest warrant because it was material and relevant to

the IJ’s exercise of discretion in his consideration of whether petitioner merited a

§ 212(h) waiver of inadmissibility and adjustment of status. Id. at 2 (citing

8 C.F.R. § 1240.7(a)). Further, the Board held that the IJ’s reliance on the

affidavit for arrest warrant was not fundamentally unfair because the confidential

informant who made it was monitored by a detective wearing a wire, and

petitioner “ha[d] not cast doubt on the probative value or fairness of the evidence

presented by presenting contrary evidence.” Id.

Petitioner argues on appeal that: (1) the Board violated his constitutional

right to the presumption of innocence by finding him guilty of a crime which a

state prosecutor chose not to prosecute; (2) the Board violated his constitutional

right to the presumption of innocence and a trial requiring proof beyond a

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reasonable doubt by affirming the IJ’s use of the arrest warrant to adjudicate

guilt; (3) the Board erred as a matter of law by permitting an IJ to adjudicate guilt

and innocence; (4) the Board erred as a matter of law by affirming a decision

based on a legally insufficient credibility finding; and (5) it was a manifest abuse

of discretion for the IJ to adjudicate guilt based on a hearsay document and to rely

on that determination to deny a waiver of inadmissibility. The government argues

that we lack jurisdiction to consider petitioner’s case, both because the decisions

concerning a waiver of inadmissibility and adjustment of status are discretionary,

see 8 U.S.C. §§ 1182(h), 1252(a)(2)(B)(i), and because petitioner was found

inadmissible based on a conviction for a violation of law relating to a controlled

substance, see 8 U.S.C. § 1252(a)(2)(C).

We have jurisdiction to determine our jurisdiction. Latu v. Ashcroft ,

375 F.3d 1012, 1017 (10th Cir. 2004). We conclude that we lack jurisdiction over

petitioner’s appeal. Because petitioner was noticed to appear after April 1, 1997,

this case is governed by the permanent rules of the Illegal Immigration Reform

and Immigrant Responsibility Act of 1996 (IIRIRA). Tsevegmid v. Ashcroft ,

336 F.3d 1231, 1234 n.3 (10th Cir. 2003). Under IIRIRA’s permanent rules, we

lack jurisdiction to review the agency’s discretionary denial of either a waiver of

inadmissibility under § 212(h), 8 U.S.C. § 1182(h), or of adjustment of status,

id. § 1255(i). 8 U.S.C. § 1252(a)(2)(B)(i). We have decided in a similar context,

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however, that we may retain jurisdiction to review an otherwise unreviewable

discretionary decision if the alien has raised a “ substantial constitutional issue.”

Morales Ventura v. Ashcroft , 348 F.3d 1259, 1262 (10th Cir. 2003) (finding no

jurisdiction to review the agency’s discretionary determinations concerning

cancellation of removal under 8 U.S.C. § 1252(a)(2)(B)(i), in the absence of a

“substantial constitutional issue”). Thus, we must decide whether petitioner has

presented a substantial constitutional issue.

We hold that petitioner has not presented a substantial constitutional issue,

as his arguments are based on mistaken premises. Removal proceedings are civil

in nature, INS v. Lopez-Mendoza , 468 U.S. 1032, 1038 (1984), and the extensive

constitutional safeguards attending criminal proceedings do not apply, United

States v. Aguirre-Tello , 353 F.3d 1199, 1204 (10th Cir. 2004) (en banc). Rather,

“the procedural safeguards are minimal because aliens do not have a

constitutional right to enter or remain in the United States.” Aguilera v.

Kirkpatrick , 241 F.3d 1286, 1292 (10th Cir. 2001); see also Bassett v. INS ,

581 F.2d 1385, 1386-87 (10th Cir. 1978) (citing, inter alia , Harisiades v.

Shaughnessy , 342 U.S. 580, 586-89 (1952)). An alien in removal proceedings is

entitled only to the Fifth Amendment guarantee of fundamental fairness.

Aguirre-Tello , 353 F.3d at 1204. Therefore, when facing deportation, aliens are

entitled only to procedural due process, which provides “the opportunity to be

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heard at ‘a meaningful time and in a meaningful manner.’” de la Llana-Castellon

v. INS , 16 F.3d 1093, 1096 (10th Cir. 1994) (quoting Mathews v. Eldridge ,

424 U.S. 319, 333 (1976) (further quotation omitted).

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 in this case, the

burden shifted to petitioner to show that he was both 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 , 468 U.S. at 1038, being ordered removed is not

analogous to being sentenced for a criminal offense.

Petitioner has not argued that he did not have an opportunity to present his

case. Therefore, petitioner’s arguments that his constitutional rights have been

violated are without merit, and we conclude that we lack jurisdiction over the

petition for review under 8 U.S.C. § 1252(a)(2)(B)(i).

We reject the government’s argument that we also lack jurisdiction because

petitioner was found inadmissible based on a conviction for a violation of law

relating to a controlled substance, see 8 U.S.C. § 1252(a)(2)(C). As the IJ noted,

petitioner’s conviction for cocaine trafficking was dismissed. Admin. R. at 103.

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His conviction for possession of marijuana falls within the statutory exception to

the jurisdictional bar. See 8 U.S.C. § 1227(a)(2)(B)(i).

The petition for review is DISMISSED.

Entered for the Court

Monroe G. McKay
Circuit Judge

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