United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
June 4, 2007
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 05-60907
_____________________
MOHAMMAD YOUSSEF SAID,
Petitioner,
versus
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
Respondent.
_________________________________________________________________
Petition for Review of an Order of the
Board of Immigration Appeals
_________________________________________________________________
Before REAVLEY, JOLLY and BENAVIDES, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
Mohammad Said petitions for review of a decision of the Board
of Immigration Appeals (“BIA”). Because we determine that we have
no jurisdiction to review the discretionary BIA decision before us,
we dismiss his petition for review.
I.
Said is a native of Lebanon. As a Palestinian refugee,
however, he claims not to be a Lebanese citizen. Said entered the
United States with his parents in 1988 when he was 11 years old.
In late summer 1994, when he was 17, Said was arrested and then
indicted on charges of aggravated assault with a deadly weapon, his
car.
In February 1995, while the charges were still pending, he
sought to adjust his status to that of a permanent U.S. resident by
filing form I-485 (“the I-485”). On the I-485, Said checked “No”
in answer to the question, “Have you ever, in or outside the U.S.:
... been arrested, cited, charged, indicted, fined or imprisoned
for breaking or violating any law or ordinance, excluding traffic
violations?” After an interview, the adjustment was granted and
Said was admitted as a lawful permanent resident (“LPR”) on May 2,
1996.
Four days later, Said pled guilty to the felony aggravated
assault charge. He was sentenced to three years of probation and
fined.
II.
We now turn to recite the procedural history of this matter in
some detail, as it proves crucial to the resolution of Said’s
appeal.
In April 1999, the Immigration and Naturalization Service
(“INS”) issued a notice to appear alleging (1) that Said had been
convicted of a crime involving moral turpitude and (2) that he had
procured his LPR status by fraud or by misrepresenting a material
fact. The alleged misrepresentation was his false answer on the
I-485, given his prior arrest and indictment for aggravated
assault.
2
On May 3, 1999, after completing his sentence, Said was
permitted to withdraw his plea to the felony and the state court
judgment was vacated. Said was then allowed to enter a new guilty
plea to the reduced charge of misdemeanor assault.
Following a hearing in January 2000, an Immigration Judge
(“IJ”) found that Said had not been convicted of a crime involving
moral turpitude based on the 1999 order vacating his felony
conviction. The IJ, however, found Said “removable as one who has
willfully misrepresented a material fact in connection with seeking
benefits from” the INS. The IJ provided no oral or written legal
analysis concerning why the misrepresentation on the I-485 was
material. Having found Said removable, the IJ denied him voluntary
departure. The IJ also denied Said a waiver of removal because he
was found to have made a misrepresentation under 8 U.S.C. §
1227(a)(1)(H).
Said appealed to the BIA, arguing that the misrepresentation
was not material and that the IJ abused his discretion in denying
a waiver of inadmissibility. The BIA agreed with the IJ's
determination that the misrepresentation was material.1 Citing its
decision in Matter of Ng, 17 I&N Dec. 536 (BIA 1980), the BIA
stated that Said's “no” answer “is the kind of misrepresentation
that tends to shut off a line of inquiry which is relevant to the
1
We refer to this decision hereafter as “Said 1."
3
applicant's eligibility, and which might well have resulted in a
determination that he was inadmissible.” The BIA dismissed the
appeal on June 18, 2003 and ordered him removed. Crucial for the
purposes of this appeal, Said did not petition the federal courts
for review of the decision and order in Said 1.
On August 20, after the expiry of the 30-day period in which
he could have appealed, see 8 U.S.C. § 1252(b)(1) (2003), Said
filed a motion asking the BIA to reopen and remand the proceedings
to the IJ. He did not request that the BIA vacate or reconsider
its decision; his motion to reopen only raised the claim that he
was now eligible to apply for a discretionary waiver of
inadmissibility based on his citizen brother’s successful family
visa petition. The BIA granted Said’s motion to reopen and remand
on October 31, 2003.
At a series of hearings before the IJ in early 2004, Said
sought (1) a discretionary waiver of his inadmissibility, arguing
that his removal would cause extreme hardship to his citizen wife,
whom he had married in July 2002, and (2) the opportunity to depart
voluntarily. On May 4, 2004, the IJ again denied Said a waiver,
finding that his removal would not result in “extreme hardship” to
his wife. The IJ reached this conclusion because Said’s argument
for “extreme hardship” was based on the fact that his wife would
have to return with him to Lebanon, which is also her native
4
country. Although Said speculated on problems they might face
there, such as a future civil war and the potential unavailability
to Said of a work permit, the IJ found that Said’s case fell far
short of “extreme hardship” and denied discretionary relief. The
IJ also again denied voluntary departure.
Said filed a motion to reconsider with the IJ, offering
evidence of a polygraph examination, which he claimed demonstrated
that he had not lied to the IJ in his testimony about the
misrepresentation on the I-485. The IJ denied the motion in June
2004 and Said appealed.
During the pendency of his appeal but prior to his filing a
brief with the BIA, Said filed a bar complaint in Texas against his
counsel. She moved to withdraw in January 2005. Soon thereafter,
Said hired his current counsel to argue his appeal to the BIA. In
that appeal, he argued (1) that the IJ had abused his discretion in
refusing to grant hardship relief, (2) that the IJ should have
admitted the polygraph evidence, and (3) that in Said 1 the IJ and
BIA had erred in evaluating the materiality of his original false
answer, which is the argument he seeks to have us address and
resolve in this petition for review.
On September 6, 2005, the BIA dismissed Said’s appeal in a
brief per curiam opinion (“Said 2"), stating that it did “not find
the [IJ’s] factual findings to be clearly erroneous” and thus
affirmed his decision denying Said a hardship waiver. The BIA also
5
approved the rejection of the polygraph evidence in the motion to
reconsider. The BIA made no reference to Said's collateral attack
on Said 1 with regard to the materiality of his original
misrepresentation on the I-485. Said now petitions this court for
review.
III.
We can review only those issues that are properly before us
under the governing law granting us subject-matter jurisdiction,
the REAL ID Act of 2005. See 8 U.S.C. § 1252 (2006). As an
appellate court, we have subject-matter jurisdiction over
constitutional claims and questions of law that were exhausted
before the BIA. §§ 1252(a)(2)(D); 1252(d)(1). Unless a
discretionary grant or denial of relief under § 1182(i) poses such
a claim or question, we do not have jurisdiction to review it. §
1252(a)(2)(B). We must raise the issue of our appellate
jurisdiction sua sponte, if necessary. Ruhrgas AG v. Marathon Oil
Co., 526 U.S. 574, 583 (1999) (reminding that “subject-matter
delineations must be policed by the courts on their own initiative
even at the highest level.”).2
In this appeal, Said admits his false answer on the I-485 and
as a question of law, argues that the IJ and BIA utilized the wrong
2
After oral argument, we asked the parties to file letter
briefs explaining our jurisdiction to review the materiality
decision in Said 1. As explained more fully below, we hold that we
lack jurisdiction over Said’s petition for review.
6
standard in Said 1 to determine if such misrepresentation was
material.3 Specifically, he contends that the proper materiality
test is provided in United States v. Kungys, 485 U.S. 789 (1988),
and that the BIA could not rely on Matter of Ng, which he claims
expresses a different, now-overruled standard.4 Said requests that
we remand the case for a hearing on the materiality of his false
statement, applying the Kungys standard.
As we have noted, after the appeal period had passed and Said
moved the BIA to reopen the case, the BIA remanded the case to the
IJ in October 2003. On remand, Said contended only that he merited
either (1) a discretionary waiver under 8 U.S.C. § 1182(i) or (2)
voluntary departure. Section 1182(i) allows administrative
authorities to waive removal in cases of extreme hardship to a U.S.
citizen relative or spouse. § 1182(i)(1). However, under the
clear command of the statute, this sort of discretionary decision
is not reviewable by this court unless it presents a constitutional
claim or an administratively-exhausted question of law. §
1252(a)(2)(D). The order appealed from presents neither an issue
of law nor a constitutional claim.
3
We do not entertain Said’s argument that the IJ was biased
against him or otherwise committed misconduct because this court
has no jurisdiction to consider issues that were not raised below.
See 8 U.S.C. § 1252(d)(1); Falek v. Gonzales, 475 F.3d 285, 289
(5th Cir. 2007).
4
We ultimately express no opinion on the merits of this
argument.
7
Said does not offer any argument in the appeal before us that
the BIA or the underlying IJ’s decision legally (or
constitutionally) erred in evaluating the standard for “extreme
hardship” in Said 2.5 Instead, he argues that no evidence was
offered that his original misrepresentation was material, an issue
litigated and settled in Said 1, his first, unappealed appearance
before the BIA. Despite Said’s suggestion to the contrary, neither
the IJ’s nor the BIA’s “extreme hardship” decisions -- the
decisions under review today -- relied on the earlier determination
that Said’s falsity was material, but instead on factual findings
concerning his wife’s situation and his fitness for voluntary
departure.6
5
Nor does he challenge the denial of voluntary departure.
6
In his letter brief, Said argues that Said 2 builds upon the
legal error that he asserts was committed in Said 1 because the IJ
again found that Said had lied during his testimony before the IJ.
Although it is true that the IJ again heard testimony concerning
Said’s truthfulness at various stages of the administrative
process, the testimony was admitted not because any such legal
question was at issue. Instead, Said’s previous counsel offered it
because she wanted the IJ “to hear some evidence ... because I
don’t think he was lying to you [before] and I think we can
convince you of that.” The IJ responded: “We’re here to let you
present whatever evidence you wish to present.” This evidence was
introduced in an attempt to convince the IJ to look favorably upon
Said’s request for discretionary relief, and not as an attempt to
challenge the legal correctness of Said 1. In the Said 2 decision,
the IJ reviewed the history of Said’s truthfulness but the decision
was specifically limited to whether “it would be an extreme
hardship for the U.S.-citizen spouse if the respondent were removed
from the United States” and whether Said merited voluntary
departure.
8
Thus, because Said does not present any constitutional claim
or question of law arising from the discretionary decision from
which he petitions for review, we do not have subject-matter
jurisdiction.
IV.
For the foregoing reasons, Said’s petition for review is
hereby
DISMISSED.
9