Elysee v. Gonzales

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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