Mahmoud v. Gonzales

United States Court of Appeals
For the First Circuit

No. 06-1369

MAHMED MAHMOUD,

Petitioner,

v.

ALBERTO GONZALES, ATTORNEY GENERAL,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS

Before

Boudin, Chief Judge

Lynch and Lipez, Circuit Judges.

Carlos E. Estrada on brief for petitioner.
Peter D. Keisler, Assistant Attorney General, Civil Division,
Department of Justice, Greg D. Mack, Senior Litigation Counsel,
and Mary Jane Candaux, Senior Litigation Counsel, Office of
Immigration Litigation, Civil Division, Department of Justice, on
brief for respondent.

May 4, 2007
 BOUDIN, Chief Judge. Mahmed Mahmoud, a native and

citizen of Egypt, entered the United States on June 12, 2001, as a

non-immigrant visitor authorized to remain until December 11, 2001.

He failed to leave by that date. In October 2003, Mahmoud conceded

in removal proceedings that he was subject to removal, but he

requested voluntary departure. The immigration judge ("IJ")

granted Mahmoud's request, so long as he departed on or before

February 11, 2004, or within any extension granted to him.

In late December 2003, after consulting an immigration

attorney, Mahmoud married Gloria Maldonado. Within a few days,

Maldonado submitted a request for an immigrant visa for Mahmoud and

in January 2004, Mahmoud moved to reopen his removal proceedings

and adjust his status. The IJ promptly denied relief with a brief

explanation; Mahmoud sought review; and the Board of Immigration

Appeals remanded, asking the IJ to explain further the reasons for

her denial.

On December 2, 2004, the IJ ruled that, given the

sequence of events described above, it was "unlikely" that

Mahmoud's marriage was bona fide--a condition for adjustment of

status in this case, 8 U.S.C. § 1255(e) (2000)--and in any event

adjustment remained a discretionary decision and the circumstances

did not warrant relief. The IJ noted that Mahmoud had presented

little evidence of favorable equities, and suggested that Mahmoud's

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actions "constitute[d] a delay tactic and a disregard for the final

order that [Mahmoud] requested."

Mahmoud appealed this decision to the Board in January

2005. While that motion was pending, United States Citizenship and

Immigration Services, an agency within the Department of Homeland

Security,1 approved Maldonado's visa petition on behalf of Mahmoud,

who then filed with the Board a motion to remand, arguing that the

approval of his petition supported his claim that his marriage was

bona fide and that he was eligible for adjustment of status.

Acting by a single member, the Board affirmed the IJ's

denial of Mahmoud's motion to reopen and denied his motion to

remand. As to reopening, the Board agreed with the IJ that Mahmoud

was not entitled to favorable discretionary action on his

application to adjust status. The motion to remand, it found, was

in effect a motion to reopen and was accordingly numerically and

time-barred. 8 U.S.C. §§ 1229a(c)(7)(A), 1229a(c)(7)(C)(i); 8

C.F.R. § 1003.2(c)(2). The Board added that, if not thus barred,

Mahmoud’s failure to voluntarily depart as earlier ordered

precluded adjustment of status. 8 U.S.C. § 1229c(d).

1
In 2003, functions of the former INS were transferred to the
newly formed Department of Homeland Security and divided into three
separate agencies, including United States Citizenship and
Immigration Services; the Attorney General retained the
adjudicative and discretionary functions exercised through the IJs
and the Board. See Homeland Security Act of 2002, Pub. L. No. 107-
296, 116 Stat. 2135 (2002).

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 Mahmoud now seeks review in this court, arguing that the

IJ and Board erred both in substance and procedurally, denying him

due process. The government responds that to the extent Mahmoud

preserved claims, they relate to factual or discretionary

determinations by the IJ and the Board as to which judicial review

is precluded by statute, see 8 U.S.C. § 1252(a)(2)(B), namely,

whether Mahmoud entered into a bona fide marriage and whether a

discretionary adjustment of status should be allowed.

Because of rapid successive amendments, the immigration

statutes are now an archeological dig in which layer upon layer of

provisions, often with different effective dates, must be excavated

to determine what is or is not reviewable.2 Ever changing

substantive law, including new regulations and court glosses, adds

further complications. The result, although partly due to real

world conditions and inherent complexities of the subject, is a

maze of confusion.

In this case, we can bypass the arguments as to just what

is or is not reviewable and whether special restrictive standards

apply to review, because the IJ and the Board would be upheld even

if everything was reviewable under ordinary administrative law

standards and none of the special restrictions applied. A vast

2
E.g., REAL ID Act of 2005, Pub. L. No. 109-13, div. B, 119
Stat. 231 (2005); Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, Pub. L. No. 104-208, div. C, 110 Stat.
3009 (1996); Antiterrorism and Effective Death Penalty Act of 1996,
Pub. L. No. 104-132, tit. IV, 110 Stat. 1214 (1996).

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number of cases turn on whether someone is entitled to be

considered for discretionary relief; here, discretionary relief was

considered and was denied.

Because of perceived abuses, Congress by statute and the

Attorney General by regulation have sought to prevent applicants

from using marriages to U.S. citizens as a means of avoiding normal

visa requirements or of frustrating removal proceedings against one

who has overstayed his visa. Immigration Marriage Fraud Amendments

of 1986, Pub. L. No. 99-639, 100 Stat. 3537 (1986); see also 8

C.F.R. § 216.3(b). Pertinently, if it were found that Mahmoud had

in fact entered into this marriage simply to defeat removal, he

would be ineligible for an adjustment of status from removable

alien to permanent resident. 8 U.S.C. § 1255(e).

However, even if the marriage did not disqualify Mahmoud,

the decision whether to grant an adjustment of status is still a

discretionary decision, 8 U.S.C. § 1255(a); where the request for

adjustment of status is made by one like Mahmoud already in removal

proceedings, the IJ presiding over the removal proceeding exercises

that discretion. 8 C.F.R. § 1245.2(a)(1). In this instance, the

IJ expressed doubt whether this was a bona fide marriage but also

denied relief as a matter of discretion.

Here, the IJ made clear that the outcome would be the

same even if she ignored her doubts as to whether the marriage was

more than a device to frustrate the order of removal. The IJ noted

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Mahmoud's unconditional agreement to voluntarily depart (which he

failed to do without securing an extension), the eve-of-departure

marriage, and the lack of any evidence from Mahmoud "to show

hardship or humanitarian concerns beyond the mere act of marriage

itself" such as "a U.S. citizen child."

Even if Congress had not limited review of factual and

discretionary determinations, this is a perfectly rational

explanation rooted in the record. Judgments about equities and

last minute requests for relief and about the importance of

voluntary departure agreements are exactly the kind of factors that

one would expect a decision-maker to consider. See generally In re

Velarde, 23 I. & N. Dec. 253, 256 (BIA 2002). Nothing in the

outcome is surprising--let alone irrational or arbitrary.

Mahmoud was, of course, provided an opportunity to point

to discretionary factors in his favor, but he says that he was

entitled as a matter of due process to an evidentiary hearing on

his motion to reopen to adjust status. No such constitutional

claim was presented to the Board; in his second appeal, Mahmoud

simply argued that the failure to provide such a hearing was an

abuse of discretion. This likely ends the matter because an

unexhausted claim is ordinarily not preserved for review. 8 U.S.C.

§ 1252(d)(1).

In all events, Mahmoud apparently made no proffer to the

IJ--and certainly has not pointed us to such a proffer--as to

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specific evidence that he would have offered as to discretionary

factors or equities in support of an adjustment of status. Absent

such a showing, there is no plausible due process or abuse of

discretion claim. See Morales-Izquierdo v. Gonzales, 477 F.3d 691,

701 (9th Cir. 2007); cf. Luna v. INS, 709 F.2d 126 (1st Cir. 1983).

As for Mahmoud's request for a second remand, this

request (whether or not procedurally barred) was effectively mooted

by the Board's decision to sustain the discretionary denial of

adjustment of status. Mahmoud sought remand for the IJ to

reconsider whether the grant of the visa application by a different

agency supported the claim that the marriage was bona fide. But in

denying discretionary relief, the IJ ruled that the denial did not

depend on whether the marriage was bona fide.

Finally, Mahmoud argues that "systemic malaise" has

infected the review process for immigration cases, and that this

malaise resulted in a predisposition to deny his claim and a

violation of his due process rights. Again, Mahmoud did not

present this claim to the Board; but there is no evidence that the

IJ or the Board was biased or unserious about review. Mahmoud

himself got fair consideration of his claim, including one remand

for further proceedings and an explicit explanation for the denial

of discretionary relief.

The petition for review is denied.

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