United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 9, 2006
Charles R. Fulbruge III
No. 04-31052 Clerk
MELANIE BEAUCEJOUR JEAN,
Petitioner – Appellant,
v.
ALBERTO R. GONZALES;
JAMES W. ZIGLAR;
ANDREA QUARANTILLO;
BUREAU OF IMMIGRATION AND CUSTOMS ENFORCEMENT;
UNITED STATES DEPARTMENT OF JUSTICE,
Respondents – Appellees.
Petition for Review of a Decision
of the Attorney General of the United States
Before KING, SMITH, and BENAVIDES, Circuit Judges.
BENAVIDES, Circuit Judge:
Petitioner-Appellant Melanie Beaucejour Jean appeals from the
district court’s denial and dismissal of her habeas corpus petition
for lack of jurisdiction. Jean filed the habeas petition in
response to the Attorney General’s denial of her petition for
discretionary relief from an order of inadmissibility. For the
reasons set forth below, we convert this appeal into a petition for
review and deny the petition.
I. FACTUAL BACKGROUND & PROCEDURAL POSTURE
Petitioner-Appellant Melanie Beaucejour Jean, a native of
Haiti, entered the United States in 1994 along with her husband and
children. Jean was convicted in New York state court in 1995 of
manslaughter in the second degree in connection with the death of
a child entrusted to her care. She was sentenced to a term of
imprisonment of two to six years and was released in March 1999.
Immigration officials arrested Jean in June 1999 and initiated
removal proceedings against her the next month.
In response, Jean applied for discretionary relief, requesting
the following: adjustment of her status as a refugee pursuant to 8
U.S.C. §§ 1157, 1159 (2000); asylum pursuant to 8 U.S.C. § 1158;
withholding of removal pursuant to 8 U.S.C. § 1231; and deferral of
removal pursuant to the Convention Against Torture, implemented by
8 C.F.R. §§ 208.16-208.18. An immigration judge (“IJ”) ruled that
her second-degree manslaughter conviction constituted an
“aggravated felony” which rendered her ineligible for all relief
from removal. Jean appealed to the Board of Immigration Appeals
(“BIA” or “Board”), which reversed the IJ’s decision. The Board
concluded that Jean’s conviction did not amount to a “crime of
violence,” the necessary predicate for classifying the offense as
an “aggravated felony” in this context. The Board remanded to give
Jean another opportunity to apply for relief from removal.
On remand, after conducting several evidentiary hearings, the
IJ again denied Jean’s requests for relief. Jean subsequently
appealed to the Board. It again reversed the IJ, after weighing
“the equities” against Jean’s criminal conviction, and “chastised”
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the IJ for failing to adhere to the Board’s earlier ruling that
Jean’s manslaughter conviction did not represent a “crime of
violence.”
Pursuant to 8 C.F.R. § 3.1(h)(1)(I), then Attorney General
John Ashcroft directed the Board to refer the case to his office
for review. The Attorney General issued a decision reversing the
Board, holding that “the interests of [Jean’s] family and the
general public would be ill-served by granting her lawful permanent
residency” and concluding that she was “not entitled to any
alternative relief from removal.” In re Jean, 23 I. & N. Dec. 373,
374 (A.G. 2002). The Attorney General stated that the balance
between “claims of hardship to the respondent’s family against the
gravity of her criminal offense . . . . will nearly always require
the denial of a request for discretionary relief from removal where
an alien’s criminal conduct is as serious as that of the
respondent.”
Having exhausted her administrative remedies, Jean filed the
habeas petition from which this appeal was taken in July 2002,
asking for an immediate stay of her removal and one or all of the
following: an adjustment of her status to that of a lawful
permanent resident, a grant of asylum, or reversal of the order of
removal. On June 3, 2002, Jean was removed to Haiti, making her
request for a stay of removal moot.
Jean raised several arguments in her original habeas petition;
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however, she maintains only her ultra vires claim on this appeal.
In her petition, she claimed that the Attorney General’s decision
was ultra vires for two reasons. First, she argued that the
Attorney General attached additional requirements never
contemplated by Congress to requests for adjustment of status filed
pursuant to 8 U.S.C. § 1159(c). Second, she argued that the
Attorney General’s decision effectively rewrote the “aggravated
felony” asylum limits of 8 U.S.C. § 1158, establishing a per se
rule in place of Congress’s guided discretion.
Jean’s habeas petition was referred to a magistrate judge, who
recommended denial and dismissal of Jean’s habeas petition. The
magistrate judge relied upon this Court’s holding in Bravo v.
Ashcroft, 341 F.3d 590, 592 (5th Cir. 2003), that “[a]lthough
federal courts retain habeas jurisdiction to review statutory and
constitutional claims, there is no jurisdiction to review denials
of discretionary relief” under the limitations of 8 U.S.C.
§ 1252(a)(2)(B). After reviewing Jean’s petition, the magistrate
judge concluded that her constitutional and ultra vires claims were
meritless and recommended dismissal of her petition with prejudice.
The district court adopted the magistrate’s report and denied
and dismissed Jean’s habeas petition for lack of jurisdiction. The
court also expanded upon the magistrate judge’s discussion of the
jurisdictional issues. After analyzing the Supreme Court’s
decision in INS v. St. Cyr, 533 U.S. 289, 310-14 (2001), this
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Court’s decisions in Bravo and Flores-Garza v. INS, 328 F.3d 797
(5th Cir. 2003), and relevant decisions from other circuits, the
court concluded that “St. Cyr and its progeny indicate Jean has no
constitutional due process claim relating to the attorney general’s
discretionary denial of relief.” In one sentence, the district
court held that Jean had failed to cite a statutory violation.
Jean timely appealed.
II. DISCUSSION
A. Standard of Review
We review legal determinations of jurisdiction in this context
de novo. Bravo, 341 F.3d at 591.
B. Jurisdiction To Consider Jean’s Ultra Vires Claim
Before reaching the merits of Jean’s claim, we must decide
whether jurisdiction exists over Jean’s ultra vires claim. To do
so, we examine two different issues: (1) whether Jean’s claim is in
the context of a habeas petition or a petition for review and (2)
whether the Attorney General’s discretionary decision is subject to
judicial review.
This case is governed by the REAL ID Act of 2005, Pub. L. No.
109-13, Div. B, 119 Stat. 231 (May 11, 2005) (the “Act”). “The Act
amends the jurisdictional provisions of the Immigration and
Nationality Act, altering the way in which noncitizens can seek
judicial review of administrative orders of removal. Section 106
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of the REAL ID Act has divested federal courts of jurisdiction over
§ 2241 petitions attacking removal orders, effective immediately
and retroactively.” Rosales v. Bureau of Immigration & Customs
Enforcement, 426 F.3d 733, 735–36 (5th Cir. 2005) (per curiam),
cert. denied, 126 S. Ct. 1055, 163 L. Ed. 2d 882 (2006). The Act
requires district courts to transfer any pending habeas cases to
the appropriate court of appeals, which shall treat the transferred
case as if it had been filed pursuant to a petition for review.
Id. at 736. Congress, however, was silent on habeas petitions,
such as this one, that were already on appeal when the Act became
effective. See id. We have held that such habeas petitions are
converted into petitions for review. Id. Having established the
form of this petition, we determine whether it is subject to
judicial review.
Generally, the Act prohibits courts from reviewing a
discretionary decision of the Attorney General under 8 U.S.C.
§§ 1151, et seq. 8 U.S.C. § 1252(a)(2)(B)(ii). This general rule
includes 8 U.S.C. § 1159(c)—the provision under which Jean applied
for an adjustment of status. Id. The Act, however, further
provides that judicial “review of constitutional claims or
questions of law” is not prohibited. 8 U.S.C. § 1252(b)(2)(D).
Therefore, although her claim ordinarily would not be reviewable by
a court, Jean’s claim may be reviewed if she raises a
constitutional claim or a question of law. Here, Jean raises a
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question of law—a claim of ultra vires. See Noriega-Lopez v.
Ashcroft, 335 F.3d 874, 881 (9th Cir. 2003) (stating that an ultra
vires claim is “purely one of statutory construction”); Yang v.
INS, 79 F.3d 932, 934 (9th Cir. 1996) (holding that a question of
whether a regulation was ultra vires was a “purely legal
question”); Wind River Mining v. United States, 946 F.2d 710, 717
(9th Cir. 1991) (holding that “the definition of an ultra vires
act” is a “question of law”). Therefore, we review the merits of
Jean’s ultra vires claim.
C. Merits of Jean’s Ultra Vires Claim
Jean claims that the Attorney General’s decision not to waive
her removal was ultra vires. Under 8 U.S.C. § 1159(c), the
Attorney General may adjust the status of a refugee by waiving the
criminal grounds of inadmissibility “for humanitarian purposes, to
assure family unity, or when it is otherwise in the public
interest.” Jean argues that the Attorney General’s decision in her
case is inconsistent with the statutory scheme and therefore was
ultra vires. Specifically, she contends that the Attorney General
utilized a heightened standard, one not articulated by the
statutory provision, in analyzing her application for waiver.
The Attorney General did create and impose a heightened
standard in Jean’s case by adding a factor to be considered. For
a section 1159(c) waiver determination, he directed administrative
judges (like an IJ or BIA panel) to consider the “nature of the
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criminal offense that rendered an alien inadmissible in the first
place” and balance the “claims of hardship to the . . . family
against the gravity of [the] criminal offense.” Jean, 23 I. & N.
Dec. at 383. He articulated the test as follows:
It would not be a prudent exercise of the
discretion afforded to me by this provision
[§ 1159(c)] to grant favorable adjustments of
status to violent or dangerous individuals
except in extraordinary circumstances, such as
those involving national security or foreign
policy considerations, or cases in which an
alien clearly demonstrates that the denial of
status adjustment would result in exceptional
and extremely unusual hardship. Moreover,
depending on the gravity of the alien’s
underlying criminal offense, such a showing
might still be insufficient. . . . For those
aliens . . . who engage in violent criminal
acts during their stay here, this country will
not offer its embrace.
Id. at 383–84.
In adjusting the factors to be considered under section
1159(c), the Attorney General acted lawfully. First, he did not
impose the heightened “extreme hardship” standard on all aliens
with aggravated felony convictions but “only on those who ‘engage
in violent criminal acts.’” Rivas-Gomez v. Gonzales, 441 F.3d
1072, 1079 (9th Cir. 2006) (quoting Jean, 23 I. & N. Dec. at 384).
As the Ninth Circuit noted, the Attorney General’s determination in
Jean was “fact-based, not categorical.” Rivas-Gomez, 441 F.3d at
1079. Indeed, the BIA has limited Jean’s heightened waiver
requirement to “dangerous or violent crimes” in a subsequent
decision. See In re K—A—, 23 I. & N. Dec. 661, 666 (BIA 2004).
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Second, the Attorney General did not add a class of aliens to those
who are statutorily ineligible for waiver, nor did he instruct the
BIA to ignore statutory considerations of family unity,
humanitarian concerns, and public interest. See Togbah v.
Ashcroft, 104 Fed. Appx. 788, 794 (3d Cir. July 8, 2004)
(unpublished). He left open the possibility that even the most
violent and dangerous immigrants could be granted relief in an
appropriate case. Moreover, the Attorney General acted within his
broad discretion.
The Attorney General has broad discretionary authority to
grant or deny a waiver. See, e.g., Jay v. Boyd, 351 U.S. 345,
353–54 (1956) (interpreting the then-current statute allowing
suspension of deportation as giving the Attorney General
“unfettered discretion”); see also Rivas-Gomez, 441 F.3d at 1078
(“[T]he Attorney General has broad discretion to grant or deny
waivers and may establish general standards governing the exercise
of such discretion . . . .”). The Ninth Circuit has held that the
Attorney General’s articulated standards must be rationally related
to the statutory scheme. Rivas-Gomez, 441 F.3d at 1078. Using
that test, the Rivas-Gomez Court decided that the Jean heightened
waiver standard is “rationally related to the national immigration
policy of not admitting aliens who would be a danger to society.”
Id. Likewise, the Third Circuit found the Jean decision to be
within the Attorney General’s “permissible exercise of his
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statutory discretion.” Togbah, 104 Fed. Appx. at 794. It implied
that such a decision should be reviewed for arbitrariness and
capriciousness. Id. We read both the Ninth and Third Circuit
decisions as essentially holding that general standards articulated
by the Attorney General for the exercise of discretion should be
rational and connected to the statutory scheme. We agree that this
is the appropriate inquiry. We also agree that the standards
utilized in this case meet that inquiry. In sum, the Attorney
General acted in his broad, discretionary authority when he denied
Jean’s waiver application.
We have held that, once it is determined that an act “did not
exceed the authority given to it by Congress,” the action is not
ultra vires. United States v. Underwood, 61 F.3d 306, 311 (5th
Cir. 1995) (examining whether a Sentencing Commission action was
ultra vires). Applying Underwood’s logic, the Attorney General did
not exceed the discretionary authority afforded to him by Congress.
Therefore, the Attorney General’s decision was not ultra vires.
III. CONCLUSION
Pursuant to the REAL ID Act, we have jurisdiction to consider
the challenge raised in what now has been converted into a petition
for review because it contains a question of law. However, Jean’s
argument that the Attorney General acted outside his statutorily-
granted authority fails. The Attorney General’s decision,
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therefore, was not ultra vires. Accordingly, we DENY the petition
for review.
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