United States Court of Appeals
For the First Circuit
No. 05-1171
JEAN ROUDY ELYSEE,
Petitioner,
v.
ALBERTO R. GONZALES,
Attorney General of the United States,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Selya, Lynch, and Howard,
Circuit Judges.
Harvey J. Bazile and Bazile & Associates on brief for
petitioner.
Surell Brady, Attorney Advisor, Justice Management Division,
United States Department of Justice, Peter D. Keisler, Assistant
Attorney General, Civil Division, and Jeffrey J. Bernstein,
Senior Litigation Counsel, Office of Immigration Litigation, on
brief for respondent.
February 21, 2006
LYNCH, Circuit Judge. Petitioner Jean Roudy Elysee seeks
review of a decision denying his application for cancellation of
removal and ordering him removed to Haiti. Because Elysee does not
raise even a colorable legal question or constitutional claim, we
do not have jurisdiction over his petition.
I.
Elysee, a citizen of Haiti, was granted lawful permanent
resident status in 1987, when he came to the United States. He has
four children. Three are United States citizens, two of whom
currently reside with him and one of whom lives with the mother in
Somerville, Massachusetts; the fourth child lives in Haiti. Elysee
and the two children live with Elysee's father, a United States
citizen, and his mother, a lawful permanent resident. Elysee's
brothers and sisters all live in the United States, although he has
some extended family in Haiti.
In 1999, Elysee was arrested twice for two separate
attacks on his former girlfriend, the first occurring on June 8,
1999 and the second occurring on July 13, 1999. The first incident
resulted in a civil restraining order being issued against him on
June 9, 1999. On September 28, 1999, Elysee pled guilty in
Massachusetts state court to assault and battery, threatening to
commit a crime, and intimidating a witness for the first incident,
and assault with a dangerous weapon and violation of a restraining
order for the second.
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The former INS1 issued a notice to appear on May 16,
2000, charging that, as a result of his state convictions, Elysee
was removable under 8 U.S.C. § 1227(a)(2)(A)(ii) (conviction after
admission of two or more crimes of moral turpitude not arising out
of the same scheme of criminal misconduct) and § 1227(a)(2)(E)(ii)
(certain violations of a protection order after admission).
At an initial hearing before the immigration judge (IJ)
on November 8, 2000, Elysee conceded removability on both grounds
charged, but sought discretionary relief in the form of
cancellation of removal under 8 U.S.C. § 1229b. He conceded that
he did not have a fear of returning to Haiti based on any of the
statutory grounds for asylum or withholding of removal; nor did he
have a fear of torture supporting relief under the Convention
Against Torture. Further hearings were held on December 6, 2002
and November 28, 2003, during which Elysee testified and presented
documentary evidence in support of his application for cancellation
of removal.
At the conclusion of the hearing on November 28, 2003,
the IJ denied Elysee cancellation of removal as a matter of
discretion. The IJ noted that an alien seeking cancellation of
removal "bears the burden of demonstrating that discretionary
1
On March 1, 2003, the relevant functions of the INS were
transferred to the Department of Homeland Security, and the INS
subsequently ceased to exist. See Homeland Security Act of 2002,
Pub. L. No. 107-296, § 471(a), 116 Stat. 2135, 2205 (codified at 6
U.S.C. § 291(a)).
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relief should be exercised on his behalf." The IJ "balance[d] the
adverse factors evidencing [Elysee's] undesirability as a permanent
resident with the social and humane considerations presented on his
behalf." The IJ noted Elysee's testimony that hardship would be
suffered by him, his children, and his family if he were removed,
but also noted that Elysee "ha[d] not provided detailed evidence
for this Court to consider." The IJ also found that Elysee had not
provided evidence that he was supporting his children; indeed,
Elysee's testimony was that he did not earn significant wages and
relied on his parents for financial support. The IJ also
considered Elysee's generalized fears of return to Haiti, but found
that Elysee "ha[d] not provided any evidence that his return to
Haiti would present him a hardship other than the fact that his
family is primarily in the United States."
With regard to Elysee's criminal history, the IJ found
that Elysee was not a credible witness and that he had "failed to
provide proof of genuine rehabilitation where his criminal record
is such a serious one." The IJ noted that, at times, Elysee
affirmed the accuracy of police reports filed in the two incidents;
these reports stated that the victim had visible injuries and had
said that Elysee had strangled her and kicked her in the head. The
IJ noted that at other times Elysee denied touching or harming his
former girlfriend as the police reports described. The IJ found
that Elysee's criminal history was "very recent, very serious and
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of such a nature that [Elysee] must [s]how unusual or outstanding
equities."
The IJ concluded that "based upon all the evidence and
all of the testimony, and balancing all of the positive matters
presented to [the court] and all of the adverse matters presented
to [the court]," Elysee did not "merit[] a favorable exercise of
discretion." The IJ ordered Elysee's removal to Haiti. Elysee
appealed to the Board of Immigration Appeals (BIA), which adopted
and affirmed the IJ's decision on January 13, 2005, making the IJ's
decision the final agency determination for the purposes of
appellate review. See Long v. Gonzales, 422 F.3d 37, 40 (1st Cir.
2005).
Elysee petitions this court for review, arguing that the
IJ's denial of his application for cancellation of removal was an
abuse of discretion.
II.
In general, under the cancellation of removal provision
for lawful permanent residents, "[t]he Attorney General may cancel
removal" of a deportable alien if certain conditions are met. 8
U.S.C. § 1229b(a). At minimum, (1) the alien must have been a
lawful permanent resident for at least five years, (2) the alien
must have continuously resided in the United States for seven years
after admission, and (3) the alien must have not been convicted of
any aggravated felony. Id. Even if these minimum conditions are
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met, an alien may be ineligible for cancellation of removal under
certain other circumstances. See, e.g., id. § 1229b(c)(1)
(ineligible if entered the United States as a crewman after June 1,
1964); id. § 1229b(c)(4) (ineligible if deportable on national
security grounds).
Elysee was not deemed statutorily ineligible for
cancellation of removal, although the government did challenge the
continuous residence requirement. Instead, the IJ determined that
Elysee had not established that the hardship, if any, that would be
suffered by Elysee and his family outweighed his serious criminal
history and potential future dangerousness and the fact that he had
not accepted responsibility for his crimes.
Cancellation of removal is a form of discretionary relief
over which we generally have no appellate jurisdiction, although
the recently enacted REAL ID Act of 2005, Pub. L. No. 109-13, Div.
B, 119 Stat. 231, 302, has "reframed the limits on jurisdiction to
provide an exception." Mehilli v. Gonzales, 433 F.3d 86, 92 (1st
Cir. 2005). Under 8 U.S.C. § 1252(a)(2)(B)(i), "except as provided
in subparagraph (D) . . . no court shall have jurisdiction to
review . . . any judgment regarding granting of relief" under the
cancellation of removal provision. Subparagraph (D) was added by
the REAL ID Act:
[n]othing in subparagraph (B) or (C), or in
any other provision of [the Immigration and
Nationality Act] (other than this section)
which limits or eliminates judicial review,
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shall be construed as precluding review of
constitutional claims or questions of law
raised upon a petition for review filed with
an appropriate court of appeals.
REAL ID Act, § 106(a)(1)(A)(iii), 119 Stat. at 310 (codified at 8
U.S.C. § 1252(a)(2)(D)); see also Sena v. Gonzales, 428 F.3d 50, 52
(1st Cir. 2005) (per curiam) (citing this provision and concluding
that the court had jurisdiction because constitutional and legal
questions were presented). Although this provision allows possible
review of discretionary determinations like cancellation of
removal, a petition for review must raise at least a colorable
constitutional claim or question of law before we will exercise
jurisdiction to review such a claim or question. See Mehilli, 433
F.3d at 93-94.
Elysee does not raise even a colorable constitutional
claim or question of law. Elysee's main arguments in his petition
for review are (1) the IJ's supposed "complete[] disregard[]" for
the hardships that will be faced by Elysee's children if he is
deported, (2) the unfair weight given to the fact that Elysee's
underlying convictions stemmed from incidents of domestic violence,
and (3) the IJ's alleged error in concluding that Elysee was not
credible in his testimony about the criminal proceedings and had
not taken responsibility for his criminal conduct. These are not
constitutional claims or questions of law but attacks on the
factual findings made and the balancing of factors engaged in by
the IJ.
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Elysee also makes an offhand claim of gender bias,
arguing that the fact that he is a male and a father (instead of a
mother) played an improper role in the IJ's decision. This
argument is frivolous. There is not a scintilla of evidence in the
record suggesting that gender bias played any role in the IJ's
decision. Furthermore, Elysee's argument on the point is woefully
underdeveloped. To the extent that this could even be construed as
a constitutional equal protection claim, it is not colorable. See
id. at 93-94 (constitutional claims must be at least colorable to
give court of appeals jurisdiction under 8 U.S.C. § 1252(a)(2)(D)).
The petition for review is dismissed for lack of
jurisdiction.
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