United States Court of Appeals
For the First Circuit
No. 01-1616
ALI RUCKBI,
Plaintiff, Appellant,
v.
IMMIGRATION AND NATURALIZATION SERVICE, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella, Circuit Judge,
and Cyr, Senior Circuit Judge.
Linda A. Cristello, with whom Allan M. Tow was on brief for
appellant.
Mary Jane Candaux, Attorney, Office of Immigration Litigation,
with whom Robert D. McCallum, Jr., Assistant Attorney General and David
V. Bernal, Assistant Director, were on brief for appellees.
April 5, 2002
CYR, Senior Circuit Judge. Ali Ruckbi, a Syrian
national, appeals from the district court judgment which
dismissed his habeas corpus petition for relief from a final
deportation order. We affirm.
I
BACKGROUND
Ruckbi failed to depart the United States after his
visa expired in October 1992. While residing in Massachusetts,
Ruckbi admittedly committed thirty-six criminal offenses,
including larceny by check and forgery, under several aliases.
The Immigration and Naturalization Service ("INS") issued an
order to show cause why Ruckbi ought not be deported. During
the course of a consent search of the Ruckbi residence, INS
agents seized documentary evidence relating to various crimes,
including altered passports as well as identification cards
issued under various aliases.
After Ruckbi conceded deportability, he applied for an
adjustment of status based on his marriage to a United States
citizen, see Immigration and Nationality Act ("INA") § 245, 8
U.S.C. § 1255(a), and, in the alternative, for leave to depart
the United States voluntarily, see INA § 244(e), 8 U.S.C. §
1254(e) (repealed 1996). In these applications, however, Ruckbi
categorically denied having committed the crimes charged.
3
Following a series of evidentiary hearings during which
Ruckbi admitted the charged offenses, the immigration judge
("IJ") rejected his section 245 and 244(e) applications. The
Board of Immigration Appeals ("BIA") affirmed. Thereafter, we
dismissed Ruckbi's direct appeal due to lack of appellate
jurisdiction. See Ruckbi v. INS, 159 F.3d 18, 21 (1st Cir.
1998). In due course, the district court dismissed the petition
for habeas corpus, see 28 U.S.C. § 2241, and Ruckbi initiated
this appeal.
II
DISCUSSION
Ruckbi asserts three principal challenges to the
fundamental fairness of the deportation proceedings.1
A. The Unannounced Discontinuance of the Final Hearing
First, Ruckbi contends that the IJ violated due process
by abruptly issuing an opinion on February 22, 1995, dismissing
1In view of the fact that Ruckbi's challenges must fail
under even the most favorable standard of review, see Goncalves
v. Reno, 144 F.3d 110, 124-25 (1st Cir. 1998) (declining to
import the more deferential standards applicable under amended
§§ 2254 and 2255 for use in § 2241 habeas petitions brought in
immigration cases, since in § 2241 habeas cases the district
court is the first court, federal or state, to resolve disputed
issues of law), we shall simply assume, without deciding, that
Ruckbi's constitutional claims are to be reviewed de novo, see,
e.g., Requena-Rodriguez v. Pasquarell, 190 F.3d 299, 302 (5th
Cir. 1999), but that the IJ's subsidiary factual findings may
not be set aside unless clearly erroneous, see, e.g., Selgeka v.
Carroll, 184 F.3d 337, 342 (4th Cir. 1999).
4
his section 245 and section 244(e) applications, notwithstanding
the IJ's earlier announcement continuing the hearing until
February 27. More particularly, Ruckbi argues that the
cancellation of the February 27th hearing preempted (i) his
filing of (and any IJ ruling upon) a crucial application for
waiver of excludability under INA § 212(h), 8 U.S.C. § 1182(h),
and (ii) any cross-examination of the government's forensic
expert. These claims are without merit.
INA § 245 plainly provides that eligibility for an
adjustment of status is restricted to otherwise "admissible"
aliens,2 whereas Ruckbi conceded inadmissibility, during earlier
2
"Section 245 of the Act authorizes the Attorney General, in
her discretion and under such regulations as she may prescribe,
to adjust an alien's status to that of an alien lawfully
admitted for permanent residence, provided that the alien meets
certain statutory requirements. To be statutorily eligible for
adjustment of status, the alien must show: (1) that he was
inspected and admitted or paroled into the United States; (2)
that he has made an application for such adjustment; (3) that he
is eligible to receive an immigrant visa and is admissible to
the United States for permanent residence; and, (4) that an
immigrant visa is immediately available to him at the time his
application is filed. Once the alien has established threshold
statutory eligibility, he must additionally demonstrate to the
Attorney General's satisfaction that he merits relief in the
exercise of discretion." Ruckbi, 159 F.3d at 19 (citing Henry
v. INS, 74 F.3d 1, 4, 7 (1st Cir. 1996)) (emphasis added).
In the event that his application for adjustment of status
were to be denied, Ruckbi further sought a discretionary grant
of voluntary departure. "Under § 244(e) of the INA, the
Attorney General may, in her discretion, permit an alien in
deportation proceedings to depart voluntarily from the United
States at his own expense in lieu of deportation. To be
statutorily eligible for voluntary departure, an alien must
5
hearings, by testifying that he had committed the crimes of
"moral turpitude" with which he was charged, thereby rendering
himself presumptively ineligible for any adjustment under § 245.3
Consequently, Ruckbi could obtain an adjustment of status only
after requesting and securing a separate § 212(h) waiver of
excludability from the IJ.4 See Ruckbi, 159 F.3d at 20 n.4 ("A
demonstrate to the Attorney General's satisfaction that he is
and has been a person of good moral character for at least five
years immediately preceding the date of his voluntary departure
application. As with adjustment [of status], once an alien has
established statutory eligibility for voluntary departure, he
additionally must persuade the Attorney General that he merits
a grant of relief in the exercise of discretion." Id. at 20
(citing Molina v. INS, 981 F.2d 14, 17 (1st Cir. 1992))
(emphasis added).
3INA § 212(a)(2)(A)(i)(I), 8 U.S.C. § 1182(a)(2)(A)(i)(I),
states: "[A]ny alien convicted of, or who admits having
committed, or who admits committing acts which constitute the
essential elements of . . . a crime involving moral turpitude
(other than a purely political offense) or an attempt or
conspiracy to commit such a crime . . . is inadmissible."
(Emphasis added.) Similarly, the IJ noted that Ruckbi's use of
altered passports likely rendered him independently excludable
under INA § 212(a)(6)(C)(i), 8 U.S.C. § 1182(a)(6)(C)(i), which
provides: "Any alien who, by fraud or willfully misrepresenting
a material fact, seeks to procure (or has sought to procure or
has procured) a visa, other documentation, or admission into the
United States or other benefit provided under this chapter is
inadmissible." (Emphasis added.)
4
INA § 212(h), 8 U.S.C. § 1182(h), provides, in pertinent
part: "The Attorney General may, in his discretion, waive the
application of subparagraph[] (A)(i)(I) of . . . subsection
(a)(2) of this section . . . in the case of an immigrant who is
the spouse . . . of a citizen of the United States or an alien
lawfully admitted for permanent residence if it is established
to the satisfaction of the Attorney General that the alien's
denial of admission would result in extreme hardship to the
6
showing of admissibility to the United States is a statutory
prerequisite to adjustment-of-status relief under § 245 of the
INA.") (emphasis added); see also Griffiths v. INS, 243 F.3d 45,
55 (1st Cir. 2001) (same). Ruckbi has not done so.
Moreover, even assuming Ruckbi intended to submit a §
212(h) application for waiver of excludability on February 27,
1995, the unannounced discontinuance by the IJ was harmless. 5
Regardless of the merits vel non of any § 212(h) application by
Ruckbi, the IJ — after balancing all relevant factors — was
empowered to deny Ruckbi's § 245 application on the alternative
and independent ground that Ruckbi had not established that he
was entitled to a discretionary adjustment. See, e.g.,
Rashtabadi v. INS, 23 F.3d 1562, 1570 (9th Cir. 1994) ("The BIA
or the IJ decides whether an applicant is entitled to a
favorable exercise of agency discretion [under § 245] on a case
by case basis by 'taking into account the social and humane
United States citizen or lawfully resident spouse . . . of such
alien . . . and . . . the Attorney General, in his discretion,
and pursuant to such terms, conditions and procedures as he may
by regulations prescribe, has consented to the alien's applying
or reapplying for a visa, for admission to the United States, or
adjustment of status."
5
Since Ruckbi's claim cannot survive the more rigorous
"harmless error" standard applicable on direct appellate review,
cf. Griffiths, 243 F.3d at 55; White v. INS, 17 F.3d 475, 479-80
(1st Cir. 1994), we need not determine to what extent, if any,
the normally less advantageous habeas corpus standard further
undermines the present claim.
7
considerations presented in an applicant's favor and balancing
them against the adverse factors that evidence the applicant's
undesirability as a permanent resident.' Where an alien has
committed a particularly grave criminal offense, he may be
required to make a heightened showing that his case presents
unusual or outstanding equities.")(citations omitted); see also
supra note 2.
The IJ's decision clearly reflects that the § 245
application submitted by Ruckbi was rejected on just such
alternative and independent grounds:
First, this court must deny the respondent's
request for adjustment of status pursuant to
section 245(a) . . . because he has not
established that he merits an exercise of
discretion in his favor . . . .
Furthermore, the respondent is excludible
under section 212(a)(2)(A)(i)(I) . . .
[b]ecause he has not filed for a waiver of
excludibility pursuant to section
212(h)(1)(B) . . . .
8
(Emphasis added.)6 Thus, there can be no doubt whatsoever that
the IJ would have reached the identical decision even assuming
that Ruckbi applied for a § 212(h) waiver on February 27.
Second, the contention that the discontinuance of the
February 27 hearing prevented Ruckbi from "cross-examining" the
government's forensic expert is meritless as well. The
government previously introduced a forensic laboratory report
which concluded that the two passports seized during the search
of the Ruckbi apartment had been altered. Neither on appeal nor
before either the IJ or the BIA has Ruckbi identified the
proposed scope or subject matter of the "cross-examination"
sought. Furthermore, the government offered the laboratory
report for the sole purpose of establishing that the passports
had been altered (a fact readily conceded by Ruckbi's counsel),
6 In light of the clear evidence and explicit finding that
Ruckbi gave false testimony before the IJ, he has not argued on
appeal that the IJ abused his discretion in declining to grant
relief under §§ 245 and 244(c). Hence, we need not reach the
question whether the district court would have subject matter
jurisdiction over such a habeas claim. See Goncalves, 144 F.3d
at 125 (noting that following enactment of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996,
courts of appeals retain jurisdiction to hear appeals relating
to certain types of habeas claims, such as those involving pure
questions of law, but reserving the question as to whether this
jurisdictional grant extends to "'the manner in which [agency]
discretion was exercised'") (citation omitted). But cf.
Calcano-Martinez v. INS, 533 U.S. 348, 121 S. Ct. 2268, 2270 n.2
(2001) (noting that "[t]he scope of [the IIRIRA jurisdictional]
preclusion is not entirely clear").
9
rather than to prove that Ruckbi himself had made the
alterations. Nor did the IJ predicate his decision on any such
finding.7
B. Notice of the Right to Apply for the
Section 212(h) Waiver of Excludability
Ruckbi next contends that the IJ's failure to advise
him of the right to submit a § 212(h) waiver application, as
required by INS regulations, see 8 C.F.R. § 242.17(a), warrants
reversal of the IJ's decision. This argument must be rejected as
well, since the failure to submit a § 212(h) waiver was utterly
harmless. See supra. Consequently, Ruckbi could not have been
prejudiced by the IJ's failure to advise him of the right to
submit a waiver application.8
C. Admissibility of the Fruits of the October 1993 Search
Finally, Ruckbi contends that since he testified that
he did not sign the consent-to-search form until after the INS
agents completed their search and, even then, only as a
7Similarly, Ruckbi is mistaken to the extent he contends
that the government was required to call the forensic expert,
who prepared the report, as a trial witness. See, e.g.,
Espinoza v. INS, 45 F.3d 308, 310 (9th Cir. 1995).
8We note, nonetheless, that Ruckbi had actual notice of this
right under § 242.17(a). At the May 12, 1994, hearing, Ruckbi's
counsel acquiesced when the IJ observed that, in light of the
admissions Ruckbi made regarding his past criminal conduct,
Ruckbi would need to obtain a § 212(h) waiver before any § 245
adjustment of status could be considered.
10
condition precedent to his release from government custody, the
IJ violated his Fourth Amendment right to be free from
unreasonable search and seizure by rejecting his section 245 and
section 244(c) applications. He argues that the IJ failed to
undertake the requisite inquiries into the timeliness and
voluntariness of his consent notwithstanding this undisputed
evidence. See Schneckloth v. Bustamonte, 412 U.S. 218, 223
(1973). Once again we must disagree.
First, the exclusionary rule based in the Fourth
Amendment normally does not apply in deportation proceedings.
See INS v. Lopez-Mendoza, 468 U.S. 1032, 1042-43 (1984).
Nevertheless, INS regulations do contemplate the suppression of
illegally seized evidence in cases involving "egregious
violations of the Fourth Amendment or other liberties that might
transgress notions of fundamental fairness and undermine the
probative value of the evidence obtained." Id. at 1050-51 & n.5
(citing Matter of Toro, 17 I. & N. Dec. 340, 343 (BIA 1980));
see also Velasquez-Tabir v. INS, 127 F.3d 456, 459-60 (5th Cir.
1997). However, Ruckbi neither moved to suppress the evidence
seized in the search, nor lodged a contemporaneous objection at
the time the government proposed to introduce the seized
evidence at the hearing before the IJ. Cf., e.g., Gonzalez-
Rivera v. INS, 22 F.3d 1441, 1443 (9th Cir. 1994) (noting that
11
appellant may submit pre-deportation-hearing motion to suppress
evidence seized in search); cf. also United States v. Santos
Batista, 239 F.3d 16, 19-20 (1st Cir. 2001) (criminal
defendant's failure to file pretrial suppression motion normally
constitutes waiver of Fourth Amendment challenge).
Consequently, neither the validity of Ruckbi's overt consent to
the search, nor the alleged egregiousness of the search itself
was ever placed squarely at issue.
Further, assuming arguendo that the consent issue was
adequately presented simply through Ruckbi's testimony that his
consent had been untimely and the result of coercion, the record
does not support the contention that Ruckbi's testimony was
undisputed. Instead, the IJ specifically found that Ruckbi was
not a credible witness in any respect, particularly in light of
the many instances in which he abruptly and unconvincingly
altered his testimony in mid-course. See Selgeka v. Carroll,
184 F.3d 337, 343 (4th Cir. 1999) (findings of fact reviewed
only for clear error). For instance, Ruckbi initially and
repeatedly denied that he had ever consented to the search. Yet
when government counsel confronted him with Exhibit 23, the
consent form, Ruckbi acknowledged that he had indeed signed it.
Given the numerous other testimonial misrepresentations by
Ruckbi, the IJ reasonably could conclude that the belated Fourth
12
Amendment challenge was not only groundless, but fabricated.
See Lopez-Mendoza, 468 U.S. at 1039 ("A decision of
deportability need be based only on 'reasonable, substantial and
probative evidence.'") (citation omitted).9
Affirmed.
9
The remaining arguments made by Ruckbi on appeal are
utterly meritless, hence warrant no separate discussion.
13