United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 19, 2004
Charles R. Fulbruge III
Clerk
No. 03-60323
JIGNESHKUMAR NATVARLA PATEL
Petitioner
v.
JOHN ASHCROFT, U S ATTORNEY GENERAL
Respondent
Petitions for Review of Orders of the
Board of Immigration Appeals
No. A45 788 587
Before KING, Chief Judge, and REAVLEY and EMILIO M. GARZA,
Circuit Judges.
PER CURIAM:*
Jingeshkumar Patel petitions for review of the Board of
Immigration Appeals’s (BIA’s) order affirming the Immigration
Judge’s (IJ’s) determination that he is a removable alien and for
review of the BIA’s denial of his motion to reopen. For the
following reasons, we DISMISS the petitions for review.
I. BACKGROUND
Patel, a citizen of India, entered the United States as a
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
1
conditional permanent resident on February 18, 1997. Patel’s
conditional resident status was based on his April 28, 1996
arranged marriage to Sonal K. Patel (Sonal),1 a U.S. citizen.
See 8 U.S.C. § 1186a(a)(1) (2000). Patel claims that he and his
wife were unable to reconcile their cultural differences
regarding their marriage and thus, on January 4, 1998, less than
a year after he joined his wife in the United States, the couple
divorced.
On November 17, 1998, Patel filed a petition to remove the
condition on his permanent resident status. Although he was no
longer married to Sonal, he requested a waiver based on his
assertion that he entered into the marriage in good faith. See
id. § 1186a(c)(4)(B). The Immigration and Naturalization Service
(INS) denied Patel’s waiver application, terminated his
conditional resident status, and initiated removal proceedings by
serving him with a Notice to Appear on July 24, 1999. In the
notice, the INS charged Patel as removable under 8 U.S.C.
§ 1227(a)(1)(D)(i), as an alien whose conditional status has been
terminated, and under 8 U.S.C. § 1227(a)(1)(G) (2000), as an
alien who procured a visa by marriage fraud.
Before the IJ, Patel conceded that he entered the country as
a conditional resident by virtue of his marriage to Sonal and
1
The government identifies Patel’s wife as Sonal
Kantibhai; however, because she is listed as either Sonal Patel
or Sonelle Patel throughout the administrative record, we refer
to her as Sonal Patel.
2
that this marriage had been judicially terminated. After
reviewing the evidence in the record, the IJ concluded that Patel
had failed to carry his burden of proving that he entered his
marriage in good faith, either to obtain a good-faith marriage
waiver or to disprove the INS’s allegation that he obtained his
visa by marriage fraud. Accordingly, the IJ held that Patel was
removable under §§ 1227(a)(1)(D)(i) and 1227(a)(1)(G) and granted
Patel a 60-day period of voluntary departure.
Patel appealed this decision to the BIA, claiming that the
IJ erred by not requiring the INS to prove, by clear and
convincing evidence, that Patel married Sonal with the sole
purpose of evading the immigration laws. Patel further argued
that he had shown, by a preponderance of the evidence, that he
married Sonal in good faith. On March 20, 2003, the BIA
summarily affirmed the IJ’s decision and ordered that Patel
voluntarily depart the United States within thirty days. Patel
petitioned this court for review of the BIA’s decision.
Patel also filed a motion to reopen and to reconsider with
the BIA, claiming that his counsel had been ineffective during
the IJ hearing and requesting an extension of his voluntary
departure during the pendency of the motion. Without addressing
Patel’s request for an extension of his voluntary departure, the
BIA denied Patel’s motion to reopen after concluding that Patel
had not demonstrated that his counsel’s conduct had been so
egregious as to render the proceedings unfair. Patel
3
subsequently petitioned this court for review of the BIA’s
decision denying his motion to reopen, and the case was
consolidated with his petition for review of the BIA’s decision
in his direct appeal.
II. DISCUSSION
A. BIA’s Final Order of Removal
In his petition for review of the BIA’s March 20, 2003
order, Patel first argues that his removal proceedings were
rendered fundamentally unfair because the IJ did not require the
government to establish his removability by clear and convincing
evidence before placing the burden on Patel to demonstrate his
eligibility for a waiver of that removability. We review
questions of law, including the application of burdens of proof,
de novo. See Mikhael v. INS, 115 F.3d 299, 305 (5th Cir. 1997).
Although generally “[w]e have authority to review only an order
of the BIA, not the IJ,” id at 302, when, as here, the BIA
summarily affirms an IJ’s decision, the latter decision forms the
basis of this court’s review, see Moin v. Ashcroft, 335 F.3d 415,
418 (5th Cir. 2003). “[T]his Court must affirm the decision if
there is no error of law and if reasonable, substantial, and
probative evidence on the record, considered as a whole, supports
the decision’s factual findings.” Id. at 418.
Although not raised by the parties, we must, as an initial
4
matter, determine whether we have jurisdiction to review the
BIA’s order of removability. See Ojeda-Terrazas v. Ashcroft, 290
F.3d 292, 294 & n.4 (5th Cir. 2002); Goonsuwan v. Ashcroft, 252
F.3d 383, 385 (5th Cir. 2001). In general, this court may review
final orders of removal under 8 U.S.C. § 1252(a)(1) (2000);
however, § 1252(a)(2)(B)(ii)2 bars us from asserting jurisdiction
over “any . . . decision or action of the Attorney General the
authority for which is specified under this subchapter to be in
the discretion of the Attorney General.” In its order, the BIA
affirmed the IJ’s decision that Patel was deportable both under
§ 1227(a)(1)(D)(i), for termination of his conditional resident
status, and under § 1227(a)(1)(G), for marriage fraud. Before
the IJ, Patel asserted that he should have been granted a waiver
of his removability under § 1227(a)(1)(D)(i) because he entered
into his marriage in good faith. See § 1186a(c)(4)(B). The
decision whether to grant this waiver is, however, committed by
statute solely to the discretion of the Attorney General. See
Assaad, No. 03-60201, manuscript at 6-7 (citing Urena-Tavarez v.
Ashcroft, 367 F.3d 154, 160 (3d Cir. 2004)). Therefore, the
jurisdictional bar in § 1252(a)(2)(B)(ii), by its terms, bars
2
Section 1252(a)(2)(B)(ii) is part of the permanent
jurisdictional rules enacted by Congress in § 306(a) of the
Illegal Immigration Reform and Immigrant Responsibility Act of
1996 (IIRIRA), see Pub. L. No. 104-208, 110 Stat. 3009-546, -607
to -612. These rules apply to Patel’s petitions for review
because the INS initiated his removal proceedings after April 1,
1997. See Assaad v. Ashcroft, No. 03-60201, manuscript at 4 n.1
(5th Cir. July 19, 2004).
5
federal court review of the BIA’s final order of removability.3
Our determination that § 1252(a)(2)(B)(ii) applies to the
BIA’s March 20, 2003 order does not conclusively resolve the
question of our jurisdiction, however. Notwithstanding this
provision, we may review the BIA’s decision if Patel’s petition
presents a “substantial constitutional claim[].” See Balogun v.
Ashcroft, 270 F.3d 274, 278 n.11 (5th Cir. 2001). In arguing
that the IJ’s allocation of the burden of proof rendered his
proceedings fundamentally unfair, Patel essentially argues that
his claim arises under the Due Process Clause of the Fifth
Amendment. See Animashaun v. INS, 990 F.2d 234, 238 (5th Cir.
1993) (“[T]he IJ must conduct deportation hearings in accord with
due process standards of fundamental fairness.”).
Patel is correct that the government generally bears “the
3
We note that the Ninth Circuit has recently held that
§ 1252(a)(2)(B)(ii) does not bar federal court jurisdiction over
an alien’s appeal from a BIA order finding him deportable under
§ 1227(a)(1)(G) for marriage fraud. See Nakamoto v. Ashcroft,
363 F.3d 874, 878 (9th Cir. 2004). Nakamoto thus appears to
support Patel’s contention that we may review the marriage-fraud
aspects of the BIA’s order. But, our precedents indicate that,
where an “order of removal cites two [independent] bases for
removal” and “the jurisdiction-stripping provisions of § 1252
clearly apply” to one of these bases, then “it does not matter
for the purposes of determining the scope of our jurisdiction
under [§ 1252] that the order of removal is also based on” a
ground not covered by § 1252’s jurisdictional bars. Flores-Garza
v. INS, 328 F.3d 797, 802 (5th Cir. 2003). Instead, in these
situations, we must dismiss the petition for review based on our
lack of jurisdiction to review the first independent ground of
removability; here, the determination that Patel is not entitled
to a discretionary good-faith marriage waiver of his conceded
removability under § 1227(a)(1)(D)(i). Id.
6
burden of establishing by clear and convincing evidence that, in
the case of an alien who has been admitted to the United States,
the alien is deportable.” 8 U.S.C. § 1229a(c)(3)(A) (2000).
Here, Patel was deemed removable both as an alien whose
conditional resident status has been terminated, see
id. § 1227(a)(1)(D)(i), and as an alien who procured a visa by
marriage fraud, see id. § 1227(a)(1)(G). The first of these
provisions makes deportable an alien who has obtained “permanent
resident status on a conditional basis under section 1186a . . .
[and] has had such status terminated,” id. § 1227(a)(1)(D)(i);
however, a second statute provides that “[t]he Attorney General
. . . may remove the conditional basis of the permanent resident
status for an alien [whose qualifying marriage has been
terminated] if the alien demonstrates that–– . . . the qualifying
marriage was entered into in good faith by the alien spouse.”
Id. § 1186(a)(c)(4)(B) (emphasis added). Similarly, under the
marriage fraud provision,
An alien shall be considered to be deportable as
having procured a visa . . . by fraud . . . if––
(i) the alien obtains any admission into the United
States with an immigrant visa or other documentation
procured on the basis of a marriage entered into less
than 2 years prior to such admission of the alien and
which, within 2 years subsequent to any admission of the
alien in the United States, shall be judicially annulled
or terminated, unless the alien establishes to the
satisfaction of the Attorney General that such marriage
was not contracted for the purpose of evading any
provisions of the immigration laws . . . .
Id. § 1227(a)(1)(G) (emphasis added). Thus, the analysis
7
required under each removability provision proceeds in two steps:
first, the government must prove by clear and convincing evidence
the prerequisite facts for finding the alien deportable (either
because his conditional resident status has been terminated or
for marriage fraud), then, the alien bears the burden of proving
his eligibility for relief from removability (i.e., that he
nevertheless entered into his marriage in good faith or that he
did not marry for the purpose of evading immigration laws).
Although the IJ did not explicitly state that the government
met its initial burden under either provision, the IJ’s implicit
finding that Patel was deportable was supported by substantial
evidence. Before the IJ, Patel admitted the facts that form the
basis of his deportability under each section. Specifically,
Patel admitted (1) that he entered the United States on a
conditional basis in February 1997, (2) that his conditional
status was based on his marriage to a U.S. citizen, and (3) that
this marriage was judicially terminated in January 1998. These
admissions demonstrate both that Patel was subject to termination
of his conditional resident status, see id. § 1186a(b)(2)
(explaining that such status will be terminated if the INS can
prove by a preponderance of the evidence that the alien’s
marriage was judicially terminated for a reason other than death
within two years of the grant of conditional resident status),
and that Patel was prima facie eligible for deportability as an
alien who obtained a visa by marriage fraud, see id.
8
§ 1227(a)(1)(G). Therefore, based on these admissions, it was
proper for the IJ to shift the burden of proof to Patel to
demonstrate either his eligibility for a good-faith marriage
waiver under § 1186a(c)(4)(B) or that his marriage was not
fraudulent. Accordingly, we hold that Patel’s argument regarding
the IJ’s allocation of the burden of proof does not present a
substantial constitutional claim.
Patel also contends that the IJ violated his substantive due
process rights by not informing him that he was eligible for a
waiver of removability, under 8 U.S.C. § 1227(a)(1)(H), based on
hardship to his qualifying relatives: his second (and current)
U.S. citizen wife and the couple’s three children. See 8 C.F.R.
§ 240.11(a)(2) (1999) (requiring the IJ to inform an alien of his
apparent eligibility for any form of relief from removal). The
government responds that, even if the IJ should have informed
Patel of his eligibility for this relief, we lack jurisdiction
over this claim because it was not fully exhausted. We agree.
Patel did not claim either in his direct appeal to the BIA or in
his motion to reopen that the IJ erred by not advising him of all
available forms of relief.4 See Wang v. Ashcroft, 260 F.3d 448,
452-53 (5th Cir. 2001) (“An alien fails to exhaust his
administrative remedies with respect to an issue when the issue
4
In his motion to reopen Patel did argue, however, that
his counsel had been ineffective for failing to advise him that
he was eligible for the hardship waiver.
9
is not raised in the first instance before the BIA––either on
direct appeal or in a motion to reopen.”). Therefore, 8 U.S.C.
§ 1252(d)(1), which precludes judicial review when an alien has
not “exhausted all administrative remedies available to the alien
as of right,” bars our jurisdiction over this claim.
B. BIA’s Denial of Patel’s Motion to Reopen
In his second petition for review, Patel argues that the BIA
erred in denying his motion to reopen based on the ineffective
assistance of his counsel. Patel claims that his counsel, who
represented him before the IJ, was ineffective in at least three
ways: (1) by failing to explain to the IJ the cultural context of
his arranged marriage to Sonal, (2) by failing to object to the
IJ’s improper allocation of the burden of proof, and (3) by
failing to advise Patel of his eligibility for a waiver of his
deportability under § 1227(a)(1)(H) based on his second marriage
to a U.S. citizen and the births of his three U.S. citizen
children. See § 1227(a)(1)(H) (waiving certain grounds of
removability on the basis of an alien’s marriage to a U.S.
citizen).
Once again, we must, as an initial matter, determine whether
we have jurisdiction to review the BIA’s order denying Patel’s
motion to reopen. As we recently explained in Assaad, No. 03-
60201, manuscript at 5-7, we lack jurisdiction to review the
BIA’s denial of an alien’s motion to reopen under 8 U.S.C.
§ 1252(a)(2)(B)(ii) if the underlying relief sought by the alien
10
was committed to the BIA’s discretion.
We have already determined that we lack jurisdiction to
review the BIA’s decision that Patel should not be granted a
good-faith marriage waiver of his removability. Just as
§ 1252(a)(2)(B)(ii) barred our review of the BIA’s final order
denying this form of relief, so does it bar our jurisdiction over
the BIA’s denial of Patel’s motion to reopen. Patel also argued,
however, in his motion to reopen, that he was eligible for a
waiver of his removability under § 1227(a)(1)(D)(i) because of
his current marriage to U.S. citizen and the birth of his three
U.S. citizen children. See § 1227(a)(1)(H). Yet, the decision
whether to grant this waiver is also committed by statute solely
to the discretion of the Attorney General. See id. (stating that
the removability of an alien under the provisions of § 1227(a)(1)
“may, in the discretion of the Attorney General, be waived for
any alien” who meets certain specified criteria); see also San
Pedro v. Ashcroft, No. 02-74367, 2004 WL 1396286, at *1 (9th Cir.
June 23, 2004). Therefore, because the underlying relief sought
by Patel was committed to the Attorney General’s discretion,
§ 1252(a)(2)(B)(ii) precludes judicial review of the BIA’s order
denying Patel’s motion to reopen.
Nevertheless, as we clarified above, we may review the
motion to reopen if Patel’s contention that his counsel was
ineffective presents a substantial constitutional claim. Patel
argues that his motion satisfies this test because his counsel’s
11
alleged ineffectiveness rendered his immigration proceedings
fundamentally unfair, violating his Fifth Amendment right to due
process of law. This argument is legally untenable. The alleged
ineffectiveness of Patel’s counsel denied him, at most, the
chance to receive either of the two discretionary waivers of his
removability under § 1227(a)(1)(D)(i). Accordingly, because an
alien does not have a protected liberty interest in obtaining a
discretionary waiver of his removability, we hold that Patel did
not raise a substantial constitutional claim in his motion to
reopen. See Assaad, No. 03-60201, manuscript at 8-9.5
Lastly, Patel contends that the BIA’s refusal to grant or
even to address his request for an extension of his voluntary
departure in his motion to reopen violated his due process
rights. Once again, the jurisdiction-stripping provisions of
§ 1252 deny this court the authority to review this claim, see
§ 1252(a)(2)(B)(i) (stating that “[n]otwithstanding any other
provision of law, no court shall have jurisdiction to review––any
judgment regarding the granting of relief under section . . .
5
We note the possibility, raised by Patel, that his
attorney’s performance effectively denied him the opportunity to
refute the government’s contention that he was deportable for
engaging in marriage fraud. Although the BIA’s conclusion that
Patel had committed marriage fraud may not have been purely
discretionary, see supra note 2, this does not affect our
conclusion that we lack jurisdiction over Patel’s petition for
review. Regardless of whether Patel was deportable for
committing marriage fraud, the BIA independently held that he was
deportable under § 1227(a)(1)(D)(i), and the only relief Patel
sought from this order was purely discretionary in nature.
12
1229c of this title,” which governs voluntary departure), unless
Patel’s petition presents a substantial constitutional claim.
Patel’s contention that the BIA’s refusal to extend his term
of voluntary departure was constitutionally impermissible is
based on a hypothetical sequence of events that has not come to
pass. He argues that, because his period of voluntary departure
expired before we heard oral argument on his petition for review,
if this court decides that Patel’s counsel was constitutionally
defective and remands the case to the BIA, the BIA could then
claim that it no longer has jurisdiction over the motion to
reopen because Patel would have left the country. See 8 C.F.R.
§ 1003.4 (2004) (equating departure from the country with
withdrawing an appeal). Patel thus argues that the BIA’s refusal
to extend his voluntary departure effectively will have deprived
him of judicial review of his ineffective-assistance-of-counsel
claim. Yet, we have held that Patel’s attorney’s performance did
not violate his Fifth Amendment rights, and his attorney has also
informed us, at oral argument, that Patel has not yet left the
country. Therefore, Patel’s voluntary-departure argument does
not present a substantial constitutional claim.
III. CONCLUSION
For the foregoing reasons, we DISMISS Patel’s petitions for
review.
13