United States Court of Appeals
For the First Circuit
No. 06-1438
FLAVIO RODRÍGUES-NASCIMENTO,
Petitioner,
v.
ALBERTO R. GONZÁLES,
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Boudin, Chief Judge,
Torruella and Lynch, Circuit Judges.
Jeffrey B. Rubin and Law Offices of Jeffrey B. Rubin, on brief
for petitioner.
Richard Zanfardino, Trial Attorney, U.S. Department of
Justice, Civil Division, Office of Immigration Litigation, Peter D.
Keisler, Assistant Attorney General, Civil Division, and Terri J.
Scadron, Assistant Director, Office of Immigration Litigation, on
brief for respondent.
May 9, 2007
TORRUELLA, Circuit Judge. Petitioner Flavio Rodrígues-
Nascimento seeks review of the denial of his petition for
adjustment of status, as well as his motion for voluntary
departure. We find that we lack jurisdiction to review the denial
of the petition for adjustment of status under 8 U.S.C. §§ 1252(a)
(2)(B)(i) and 1252(d)(1), and deem Petitioner's request for
voluntary departure waived by failure to develop argumentation.
I. Background
Petitioner was born in Brazil in 1962 and entered the
United States illegally in 1988. He was married in 1992 to a
citizen of Brazil,1 and his wife subsequently came to the United
States on a visitor's visa, which she overstayed. On February 4,
1998, Petitioner was paroled into the United States in order to
seek adjustment of status based on an I-140 his employer filed on
his behalf.2 He and his wife had a daughter in 2001 who is a
United States citizen by birth.
That same year, Petitioner was arrested and pled guilty
to assault and battery with a dangerous weapon for kicking his wife
with a shoed foot. Petitioner was sentenced to a suspended
1
Petitioner states that he married his wife by correspondence
while she was in Brazil.
2
On November 22, 1995, Petitioner's employer filed a Petition for
Alien Worker (I-140 petition). The petition was approved on
February 5, 1997. After visiting his family in Brazil, Petitioner
returned to the United States on advance parole on February 4,
1998, in order to seek adjustment of his illegal status based on
the approved I-140 petition.
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sentence of eleven months incarceration. Petitioner was arrested
again in 2002 and pled guilty to assault and battery and
intimidation of a witness. He was sentenced to six days
incarceration and three years probation.
On February 28, 2003, the Department of Homeland Security
("DHS") initiated removal proceedings against Petitioner, asserting
that he was an alien convicted of a crime involving moral
turpitude.3 See 8 U.S.C. § 1182(a)(2)(A)(i)(I). Petitioner filed
for relief from removal in the form of a request for adjustment of
status under 8 U.S.C. § 1255(a), and a waiver of inadmissibility
under 8 U.S.C. § 1182(h)(1)(B), citing extreme hardship to his
four-year-old United States citizen daughter. In the alternative,
he requested voluntary departure under 8 U.S.C. § 1229c(a).
After a hearing on January 4, 2005, the Immigration Judge
("IJ") refused to grant a waiver of inadmissibility, concluding
that Petitioner had not met his burden of proof to establish
extreme hardship to his daughter, his only qualifying relative
under 8 U.S.C. § 1182(h)(1)(B). Namely, the IJ found that should,
as Petitioner claims, his departure result in his daughter being
forced to also move to Brazil, her hardship would be mitigated by
the fact that Petitioner and his wife have significant family ties
in that country. In addition, the IJ held that his discretion
3
Petitioner's Notice to Appear cited his 1998 conviction for
assault and battery with a "dangerous weapon."
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under § 1182(h)(1)(A) to grant Petitioner's request for a waiver of
inadmissibility should not be exercised because Petitioner's
history of violent behavior outweighed his positive attributes and
because of the lack of evidence of Petitioner's rehabilitation.
The IJ also denied Petitioner's request for voluntary
departure, due to Petitioner's conviction for an aggravated felony
-- i.e., the assault and battery of his wife with a shoed foot.
See 8 U.S.C. § 1229c(a).
Petitioner appealed to the Board of Immigration Appeals
("BIA"), and on February 17, 2006, the BIA summarily affirmed the
decision of the IJ. This renders the decision of the IJ the final
agency decision for the purpose of appellate review. See Keo v.
Ashcroft, 341 F.3d 57, 60 (1st Cir. 2003).
II. Analysis
Petitioner asks us to reconsider the IJ's analysis of
extreme hardship under 8 U.S.C. § 1182(h). However, this is
precisely the type of review that is precluded by 8 U.S.C. § 1252
(a)(2)(B):
Notwithstanding any other provision of law
(statutory or nonstatutory), . . . except as
provided in subparagraph (D), and regardless
of whether the judgment, decision, or action
is made in removal proceedings, no court shall
have jurisdiction to review-- (i) any judgment
regarding the granting of relief under section
1182(h), 1182(i), 1229b, 1229c, or 1255 of
this title . . . .
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The only exception, subparagraph (D), created by the REAL
ID Act of 2005, Pub. L. No. 109-13, § 106(a)(1)(A)(iii), 119 Stat.
231, 310, preserves review only for constitutional claims and
questions of law raised in a petition for review. 8 U.S.C. § 1252
(a)(2)(D); see also Conteh v. Gonzáles, 461 F.3d 45, 62-63 (1st
Cir. 2006) (describing the changes wrought by the REAL ID Act).
Petitioner has not raised such a claim. His sole
allegation is that the IJ failed to adequately consider his
daughter's citizenship in making the factual determination that she
would not suffer hardship, essentially challenging how much weight
should be granted to the evidence he presented. Section
1182(h)(1)(B) explicitly states that "[t]he Attorney General may,
in his discretion, waive the application of subparagraphs
(A)(i)(I), (B), (D), and (E) of subsection (a)(2) . . . 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
United States citizen . . . daughter . . . of such alien." 8
U.S.C. § 1182(h)(1)(B). As we have previously held, even under 8
U.S.C. § 1252(a)(2)(D), "discretionary or factual determinations
continue to fall outside the jurisdiction of the courts of
appeals." Mehilli v. Gonzáles, 433 F.3d 86, 93 (1st Cir. 2005)
(quoting Vasile v. Gonzáles, 417 F.3d 766, 768 (7th Cir. 2005)).
Indeed, in Bencosme de Rodríguez v. Gonzáles, we held that we
lacked jurisdiction over a similar discretionary decision made by
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an IJ. 433 F.3d 163, 164 (1st Cir. 2005) (holding that we lack
jurisdiction to review the IJ's determination "that removal would
[not] result in 'exceptional and extremely unusual hardship' to
[Petitioner's] United States citizen children"). Accordingly, we
lack jurisdiction to review whether the IJ abused his discretion in
denying the § 1182(h)(1)(B) waiver of inadmissibility. We
similarly lack jurisdiction to review the IJ's balancing of factors
in consideration of the petition for a waiver of inadmissibility
under § 1182(h)(1)(A).
Petitioner's claim that the IJ improperly denied
voluntary departure is also denied. While an error may exist here,
Petitioner's failure to adequately brief this claim before the BIA
prevents us from considering its merits. Olujoke v. Gonzáles, 411
F.3d 16, 22-23 (1st Cir. 2005) (concluding that Petitioner's
failure to "make any developed argumentation" in support of a claim
before the BIA bars any attempt to resurrect the issue before the
court); see also Makhoul v. Ashcroft, 387 F.3d 75, 82 (1st Cir.
2004). Consequently, we deem that portion of his petition waived.
III. Conclusion
For the aforementioned reasons, we conclude that we do
not have jurisdiction to review Petitioner's waiver of
inadmissibility claim and find Petitioner's claim for voluntary
departure waived.
Affirmed.
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