Hafeez v. Gonzales

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
May 22, 2007
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court

M UH AM M ED A SIF HAFEEZ,

Petitioner,

v. No. 06-9531
(No. A95-554-823)
ALBERTO R. GONZALES, United (Petition for Review)
States A ttorney General,

Respondent.

OR D ER AND JUDGM ENT *

Before H E N RY, B AL DOC K , and M U RPH Y, Circuit Judges.

M uhammed Asif Hafeez, a native of Pakistan who has lived in this country

for fifteen years, seeks review of a removal order and the subsequent denial of a

motion to reopen the removal proceeding. He did not file a separate petition for

review from the latter decision, however, so we lack jurisdiction to consider it.

Youkhana v. Gonzales, 460 F.3d 927, 933-34 (7th Cir. 2006); see Bauge v. INS,

*
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. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
7 F.3d 1540, 1541 (10th Cir. 1993) (holding Board of Immigration Appeal’s

(BIA’s) denial of motion for reconsideration “is not before this court because no

new petition for review was filed,” although petition for review had been filed

following underlying deportation order). W e affirm the removal order for the

reasons explained below.

Factual Background and Procedural H istory

The basic historical facts are not in dispute. Petitioner entered the United

States on a nonimmigrant student visa in 1992. He was quickly out of compliance

with the visa, and has since remained in the country. He married a U.S. citizen in

2000, but the marriage ended in divorce in 2001. In 2003, the Department of

Homeland Security issued petitioner a notice to appear, charging removability

under 8 U.S.C. § 1227(a)(1)(C)(i), for failure to maintain or comply with the

conditions of his visa.

Petitioner conceded the charge under § 1227(a)(1)(C)(i), but sought relief

from removal. Citing abuse allegedly suffered during his marriage, which was the

basis for a Self-Petition for Abused Spouse (Form I-360), he applied for

cancellation of removal and adjustment of status under 8 U.S.C. § 1229b(b)(2)

and § 1255. The government responded by lodging an additional charge that he

had made a false claim of citizenship while seeking employment. This second

charge supplied an alternative basis for removal under 8 U.S.C. § 1227(a)(3)(D),

but its real significance lay in its consequences for petitioner’s applications for

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relief from removal. The government asserts, without dispute, that having made a

false claim of citizenship would render petitioner inadmissible and thus ineligible

for adjustment of status under § 1255, and would negate good moral character and

thus preclude cancellation of removal under § 1229b(b)(2).

The case came on for hearing before an immigration judge (IJ). Petitioner

conceded removability for the visa violation under § 1227(a)(1)(C)(i), so, as the

IJ made clear, “the issue . . . was to consider whether [petitioner] is eligible for

any of the various forms of relief [from removal] for w hich he has applied.”

Admin. R. at 87. The government showed that in 2002, petitioner completed an

I-9 employment form and checked the box signifying that he was a “citizen or

national” of the United States. Petitioner testified that he had thought at the time

that he was a U.S. national and had not intended to represent that he was a U.S.

citizen. The IJ did not believe this explanation, noted that checking the “citizen

or national” box was the only way an alien could fill out the form without having

to supply “identifying numbers that could be checked,” and concluded that

petitioner “did what so many have done which is check the box indicating citizen

or national and then provide a social security card or number together with a

driver’s licence as evidence that he was a citizen of the United States.” Id. at 90.

Accordingly, the IJ found that petitioner had made a false claim of citizenship,

precluding the requested relief from removal.

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 Burden of Proof, Removability versus R elief from Removal,
and Interplay betw een BIA O rder and IJ Decision

M uch of the parties’ briefing concerns the burden of proof. Petitioner

insists that the government has the burden of proving, by clear and convincing

evidence, that an alien is removable for making a false claim of citizenship. That

is correct. See 8 U.S.C. § 1229a(c)(3)(A ). The government insists that a

removable alien bears the burden of proving, by a preponderance, that he has not

rendered himself ineligible for relief from removal by making such a claim. That

is also correct. See id. § 1229a(c)(4)(A)(i). The critical point is where in the

analysis the false claim of citizenship became material: insofar as it was the basis

for removal, the burden lay with the government; insofar as it was the basis for

denying relief from removal justified on other grounds, the burden lay with the

petitioner. As it happens, there is some inconsistency between the IJ’s decision

and the BIA ’s affirmance of that decision on precisely this point.

As described above, the IJ considered the false claim of citizenship solely

in connection with petitioner’s applications for relief from removal (removability

itself being conceded on other grounds). Although the BIA expressly “adopt[ed]

and affirm[ed] the thorough decision of the Immigration Judge,” Admin. R. at 35,

it summarized the IJ’s ruling on removability as “finding that [the government]

has shown by clear and convincing evidence that [petitioner] is subject to removal

under section 237(a)(3)(D ) of the Act [i.e., for making a false claim of citizenship

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in violation of § 1227(a)(3)(D)],” id. The BIA thus purported to affirm a finding

on removability that the IJ did not make under a burden of proof that the IJ did

not apply. As for relief from removal, the BIA correctly noted that petitioner had

the burden of proving eligibility and “concur[red] with the Immigration Judge, for

the reasons he states, that [petitioner] has not shown he warrants the requested

relief” due to his false claim of citizenship on the I-9 form. Id. at 36. 1

W e have in several recent removal cases addressed the interplay between

BIA orders and IJ decisions they affirm. Sarr v. Gonzales, 474 F.3d 783, 789-91

(10th Cir. 2007) (summarizing Uanreroro v. Gonzales, 443 F.3d 1197 (10th Cir.

2006), and Cruz-Funez v. Gonzales, 406 F.3d 1187 (10th Cir. 2005)). Basically,

the BIA has three options: affirmance by a three-member panel of the BIA in a

full explanatory opinion, 8 C.F.R. § 1003.1(e)(6); summary affirmance by a single

BIA member w ithout any opinion, id. § 1003.1(e)(4); and affirmance by a single

member in a brief explanatory order, id. § 1003.1(e)(5). See Sarr, 474 F.3d at

789. W hen, as here, the third “middle ground” approach is used, the BIA’s order

“constitutes the final order of removal under 8 U.S.C. § 1252(a), and thus the

Court will not affirm on grounds raised in the IJ decision unless they are relied

1
The IJ and BIA also agreed that petitioner had not shown the extreme
hardship required for relief under § 1229b(b)(2). See Admin. R. at 36, 91. This
finding is not subject to judicial review. Sabido Valdivia v. Gonzales, 423 F.3d
1144, 1148 (10th Cir. 2005). But as hardship is not specified as a requirement for
adjustment of status in § 1255(a), the unreviewable hardship finding does not
fully obviate our consideration of the false-claim-of-citizenship issue here.

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upon by the BIA in its affirmance.” Sarr, 474 F.3d at 790 (quotations omitted).

B ut in such cases “w hen seeking to understand the grounds provided by the BIA,

we are not precluded from consulting the IJ’s more complete explanation of those

same grounds” and “may consult the IJ’s opinion to the extent the BIA relied

upon or incorporated it.” Id. (noting, for example, that clarification may be

obtained from IJ’s decision when BIA’s order “incorporates by reference the IJ’s

rationale” or “repeats a condensed version of the IJ’s reasons while also relying

on the IJ’s more complete discussion”) (quotation omitted).

The BIA’s concomitant adoption/misstatement of the IJ’s decision on

removability complicates the matter in a way our case law has not addressed. W e

need not delve into this complication, however, because any error or irregularity

involved is legally immaterial. “Harmless-error analysis applies in immigration

cases.” Ngarurih v. Ashcroft, 371 F.3d 182, 190 n.8 (4th Cir. 2004); see, e.g.,

Nazaraghaie v. INS, 102 F.3d 460, 465 (10th Cir. 1996); Conteh v. Gonzales,

461 F.3d 45, 59 (1st Cir. 2006), petition for cert. filed (U.S. Jan. 8, 2007)

(N o. 06-9829). Petitioner conceded his removability on a patently evident basis

separate and distinct from the false claim of citizenship. Hence, the latter ground

for removal interjected by the BIA and now subject to challenge is legally

redundant and, thus, its resolution can have no material effect on the outcome of

the removability determination. That is the hallmark of harmless error. See, e.g.,

Nazaraghaie, 102 F.3d at 465; Conteh, 461 F.3d at 59.

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 Denial of Relief from Removal

The legal irrelevance of the false claim of citizenship with respect to the

determination of removability does not, of course, eliminate the issue from the

case. It remains a basis for the denial of relief from removal, on which the

decisions of the BIA and IJ were consistent.

The focus on relief from removal does, however, have a direct effect on the

burden of proof in a w ay that undermines much of petitioner’s case on appeal. A s

noted above, when relief from removal is at issue, it is the alien’s burden to show

eligibility, not the government’s burden to show ineligibility. See also Schroeck

v. Gonzales, 429 F.3d 947, 952 (10th Cir. 2005) (explaining that when, as here,

“petitioner conceded removability, the burden shifted to him to show that he

was . . . eligible for relief from removal”). In challenging the finding that he

made a false claim of citizenship, petitioner assumes that the government bore the

burden of proof on the issue. To the extent that this assumed premise itself

constitutes his objection to the finding–i.e., to the extent petitioner argues that the

IJ and BIA legally erred by misallocating the burden of proof–his objection is

without merit for reasons we have already stated.

The focus on relief from removal has jurisdictional consequences as w ell.

Such relief (through either § 1229b and § 1255) involves a discretionary matter

excluded from judicial review by § 1252(a)(2)(B)(i) unless the petitioner raises a

legal or constitutional objection preserved for review by § 1252(a)(2)(D). Thus,

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to the extent petitioner generally challenges the evidentiary basis for the factual

finding that he made a false claim of citizenship, we lack jurisdiction to consider

his objection. See Diallo v. Gonzales, 447 F.3d 1274, 1281 (10th Cir. 2006)

(“challenges directed solely at the agency’s . . . factual determinations remain

outside the scope of judicial review” notw ithstanding § 1252(a)(2)(D)).

Petitioner may, however, obtain review of objections that either (1) involve

undisputed facts and “turn[] on interpretation of the applicable statutory section”;

or (2) question “whether the BIA applied the correct legal standard in making its

determination.” Brue v. Gonzales, 464 F.3d 1227, 1231-32 (10th Cir. 2006). His

objection that a false claim of citizenship can never be based solely on checking

the box for “citizen or national” on an I-9 form, because the statute requires a

misrepresentation of citizenship and the ambiguous avowal on the form can never

in itself satisfy that requirement, may well implicate one or both of the exceptions

identified in Brue. But that objection mischaracterizes the determination under

review here. Other evidence relating to context and intent was clearly relied on to

find that petitioner had misrepresented his citizenship. See Admin. R. at 89-90.

Petitioner’s challenge is, in actuality, a general objection to the evidentiary basis

for an adverse factual finding, which is excluded from judicial review under

§ 1252(a)(2)(B)(i).

Petitioner also summarily asserts that the analysis underlying this factual

finding violated his due process rights. This perfunctory attempt to clothe his

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challenge in constitutional garb is insufficient to transform this unreview able

factual matter into a colorable constitutional question for purposes of review

under § 1252(a)(2)(D). See, e.g., Bazua-Cota v. Gonzales, 466 F.3d 747, 748-49

(9th Cir. 2006); De Araujo v. Gonzales, 457 F.3d 146, 154 (1st Cir. 2006);

Bugayong v. INS, 442 F.3d 67, 72 (2d Cir. 2006).

Finally, petitioner’s objection to the assessment of his credibility in

connection with the false claim of citizenship likewise fails. Credibility findings

do not fall within the exception permitting judicial review under § 1252(a)(2)(D).

Perales-Cumpean v. Gonzales, 429 F.3d 977, 982 n.4 (10th Cir. 2005); M ehilli v.

Gonzales, 433 F.3d 86, 93 (1st Cir. 2005).

In sum, petitioner conceded an obvious basis for his removability and the

proper burden of proof was applied in denying him relief from removal. He has

raised no objections to that determination that are both cognizable on review and

meritorious.

The petition for review is DENIED.

Entered for the Court

M ichael R. M urphy
Circuit Judge

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