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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