Higuit v. Gonzales

Filed: January 12, 2006

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-1002

(A71-792-749)

LUIS A. HIGUIT,

Petitioner,

versus

ALBERTO R. GONZALES, Attorney General,

Respondent.

O R D E R

The Court amends its opinion filed January 3, 2006, by

replacing the word “Gonzalez” with the word “Gonzales” at lines

4, 17, and 18 of the second paragraph on page 4; at line 4 of the

second full paragraph on page 5; and at line 10 of the second

full paragraph on page 6.

For the Court

/s/ Patricia S. Connor

____________________________

Clerk

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

LUIS A. HIGUIT, 

Petitioner,

v.

 No. 05-1002

ALBERTO R. GONZALES, Attorney

General,

Respondent.



On Petition for Review of a Final Order of

the Board of Immigration Appeals.

(A71-792-749)

Argued: December 1, 2005

Decided: January 3, 2006

Before WIDENER, WILKINSON, and TRAXLER, Circuit Judges.

Dismissed in part and affirmed in part by published opinion. Judge

Wilkinson wrote the opinion, in which Judge Widener and Judge

Traxler joined.

COUNSEL

ARGUED: Arnedo Silvano Valera, Fairfax, Virginia, for Petitioner.

Bryan Stuart Beier, UNITED STATES DEPARTMENT OF JUS-

TICE, Office of Immigration Litigation, Washington, D.C., for

Respondent. ON BRIEF: Anna Mills Wagoner, United States Attor-

ney, John W. Stone, Jr., Assistant United States Attorney, OFFICE

OF THE UNITED STATES ATTORNEY, Greensboro, North Caro-

lina, for Respondent.

2 HIGUIT v. GONZALES

OPINION

WILKINSON, Circuit Judge:

Luis A. Higuit challenges a Board of Immigration Appeals decision

denying adjustment of status, asylum, and withholding of removal.

We hold that because Higuit raises no constitutional claim or question

of law on appeal, we lack subject matter jurisdiction to review his

denial of adjustment of status. REAL ID Act of 2005, Pub. L. No.

109-13, § 106(a)(1)(A)(iii), 119 Stat. 231, 310 (to be codified as 8

U.S.C. § 1252(a)(2)(D)). With respect to asylum and withholding of

removal, the immigration judge properly determined that Higuit was

ineligible for relief because he had engaged in persecution as an intel-

ligence operative for the Marcos regime in the Philippines. We there-

fore dismiss in part and affirm in part.

I.

Petitioner Luis Higuit is a native of the Philippines who entered the

United States in May 1990 on a nonimmigrant visa. Higuit overstayed

his visa and the Immigration and Naturalization Service (now the

Department of Homeland Security) sought his removal. See 8

U.S.C.A. § 1227(a)(1)(B) (West 2005). Higuit acknowledged remov-

ability, but applied for relief on the basis of asylum and withholding

of removal under the Immigration and Nationality Act, 8 U.S.C.A.

§§ 1158(a)(1), 1231(b)(3), and the Convention Against Torture

(CAT), see 8 C.F.R. § 208.16(c) (2005).

In a hearing on October 15, 1999, the immigration judge (IJ)

denied these requests for relief. According to the IJ, Higuit was ineli-

gible for asylum and withholding of removal because, inter alia, the

relevant statutory and regulatory provisions foreclosed such relief for

any alien who "ordered, incited, assisted, or otherwise participated in

the persecution of any person on account of race, religion, nationality,

membership in a particular social group, or political opinion." 8

U.S.C.A. § 1158(b)(2)(A)(i); see also id. § 1231(b)(3)(B)(i); 8 C.F.R.

§ 1208.16(d)(2).

The IJ found that Higuit met this definition because of his approxi-

mately ten years of service as an intelligence officer in the repressive

HIGUIT v. GONZALES 3

Ferdinand Marcos government in the Philippines. Through covert

information-gathering, infiltration, and surveillance techniques,

Higuit provided his superiors with intelligence on the leftist New Peo-

ple’s Army (NPA) and other anti-Marcos communist groups. His asy-

lum application stated that "[b]ecause of my loyalty to the Marcos

group and to the Military Establishment, I hurt so many people" and

ruined careers, and furthermore, that individuals he investigated were

imprisoned and killed. Higuit testified to the same. The IJ determined

that while Higuit had never personally inflicted physical harm, he was

ineligible for asylum and withholding of removal because his intelli-

gence activities led to the persecution of NPA members and other

anti-government dissidents, including individuals who were only sus-

pected of maintaining ties to communist organizations. The IJ did,

however, grant Higuit’s application for voluntary departure.

Higuit sought review in the Board of Immigration Appeals (BIA),

but during the pendency of his appeal requested a remand to the IJ for

consideration of a discretionary adjustment of status, in light of his

receipt of an approved Alien Worker petition. See 8 U.S.C. § 1255(i).

The BIA remanded the case to the IJ for further proceedings. The par-

ties agreed that Higuit was statutorily eligible for an adjustment of

status, and that the determinative question was whether he deserved

a favorable exercise of discretion. See Elkins v. Moreno, 435 U.S.

647, 667-68 (1978) (describing the balancing of equities in adjust-

ment of status determinations).

Higuit submitted evidence that he was married, had a child born in

the United States, owned property in this country, and was active in

a church organization. On July 31, 2003, the IJ determined that these

positive factors did not tip the balance in favor of Higuit, due to his

persecution activities in the Philippines. The IJ noted that while an

alien who engaged in persecution was not barred from receiving an

adjustment of status, Higuit’s estimable conduct in the United States

did not outweigh his participation in the Marcos regime.

Higuit renewed his appeal to the BIA, which adopted and affirmed

the IJ’s decisions denying adjustment of status, asylum, and withhold-

ing of removal. Higuit filed a timely appeal.

4 HIGUIT v. GONZALES

II.

We first address the denial of adjustment of status. An adjustment of

status is a discretionary decision committed to the Attorney General. See

8 U.S.C.A. § 1255(i); see also Okpa v. INS, 266 F.3d 313, 315 (4th Cir.

2001) (per curiam). Notwithstanding an alien’s unlawful immigration

classification, the Attorney General may adjust an alien’s status to that

of a lawful permanent resident if, inter alia, the alien is physically present

in the United States, is admissible for permanent residence, and is eli-

gible to receive an immigrant visa, which must be immediately available.

See 8 U.S.C.A. § 1255(i). Prior to May 2005, it was clear that we

lacked jurisdiction to review such a determination. At that time, 8 U.S.C.

§ 1252(a)(2)(B)(i) (2000) provided that courts do not have jurisdiction

to review "any judgment regarding the granting of relief under section .

. . 1255 [adjustment of status]." See also Velasquez-Gabriel v. Crocetti,

263 F.3d 102, 104 n.1 (4th Cir. 2001).

On May 11, 2005, however, Congress enacted the REAL ID Act.

REAL ID Act of 2005, Pub. L. No. 109-13, Div. B, 119 Stat. 231, 302-

23. The relevant provisions of the Act apply retroactively, and as a result

to this appeal. § 106(b), 119 Stat. at 311; Papageorgiou v. Gonzales,

413 F.3d 356, 358 (3d Cir. 2005). As applicable here, the REAL ID

Act added a new subsection (D) to the judicial review provisions in the

Immigration and Nationality Act. Subsection (D) states: "Nothing in

subparagraph (B) . . . which limits or eliminates judicial review, 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 in accordance with this section." 8 U.S.C. § 1252(a)(2)(D).

Subsection (B)’s jurisdiction-stripping default remained unchanged, but

was revised to indicate that courts lacked jurisdiction "except as provided

in subparagraph (D)." Id. § 1252(a)(2)(B). In effect, therefore, the REAL

ID Act confers upon courts of appeal a narrowly circumscribed jurisdic-

tion to resolve constitutional claims or questions of law raised by aliens

seeking discretionary relief. See Obioha v. Gonzales, No. 04-2253, slip

op. at 4 n.3 (4th Cir. Dec. 8, 2005); Hamdan v. Gonzales, 425 F.3d 1051,

1057 (7th Cir. 2005).

Under this framework, we lack jurisdiction to review the IJ’s denial

of adjustment of status. Higuit does not advance any constitutional

HIGUIT v. GONZALES 5

claims. Nor is there any question that he meets the statutory prerequi-

sites for an adjustment of status, see 8 U.S.C.A. § 1255(i), as both

parties agree that he has. Instead, Higuit submits that he has raised a

question of law because the IJ determined that the persecution he car-

ried out in the Philippines outweighed his commendable conduct in

the United States. Specifically, he contends that he was denied adjust-

ment of status because the IJ had already determined that he was

barred from receiving asylum or withholding of removal on the basis

of his persecution activities.

This does not present a question of law. In making the discretionary

adjustment of status determination, the IJ balanced Higuit’s positive and

negative attributes and did not rule in Higuit’s favor. The IJ relied upon

Higuit’s participation in the Marcos regime, but specifically noted that

Higuit was not precluded from receiving an adjustment of status because

he had engaged in persecution activities that would bar asylum and

withholding of removal. Whether Higuit’s actions in the Philippines met

the statutory and regulatory definitions of "persecution" was therefore

neither relevant to nor dispositive of the IJ’s ultimate adjustment of status

determination, which was an equitable determination based on factual

findings rather than a question of law.

"[T]he REAL ID Act reflects a congressional intent to preserve [a]

broad effort to streamline immigration proceedings and to expedite re-

moval while restoring judicial review of constitutional and legal issues."

Grass v. Gonzales, 418 F.3d 876, 879 (8th Cir. 2005). Were Higuit cor-

rect that he has presented a question of law, almost every decision deny-

ing discretionary relief would henceforth be subject to judicial review.

We are not free to convert every immigration case into a question of law,

and thereby undermine Congress’s decision to grant limited jurisdiction

over matters committed in the first instance to the sound discretion of the

Executive. A constitutional claim or question of law may be embedded

in a denial of adjustment of status such that it presents a proper issue for

appellate court resolution, but that is plainly not the situation here.

III.

We now turn to the BIA’s decision affirming the IJ’s denial of

asylum and withholding of removal. We have jurisdiction to

consider

6 HIGUIT v. GONZALES

these orders, 8 U.S.C.A. § 1252(a)(1), (a)(2)(B)(ii), and review legal

questions de novo, Blanco de Belbruno v. Ashcroft, 362 F.3d 272, 278

(4th Cir. 2004).

Congress has specifically instructed that aliens who have engaged in

persecution are expressly ineligible for asylum or withholding of remov-

al. See Bah v. Ashcroft, 341 F.3d 348, 351 (5th Cir. 2003) (per curiam).

Asylum is unavailable where "the alien ordered, incited, assisted, or oth-

erwise participated in the persecution of any person on account of race,

religion, nationality, membership in a particular social group, or political

opinion." 8 U.S.C.A. § 1158(b)(2)(A)(i); see also id. § 1231(b)(3)(B)(i)

(setting forth virtually identical persecution exception for withholding

of removal under the Immigration and Nationality Act); 8 C.F.R. §

1208.16(d)(2) (same for withholding of removal under the CAT). If

there is evidence that the alien engaged in persecution, he must prove

by a preponderance of the evidence that he is not barred from relief on

this ground. See id. §§ 208.13(a), 208.16(d)(2), 1208.16(d)(2); see also

Hernandez v. Reno, 258 F.3d 806, 812 (8th Cir. 2001).

Higuit argues that he did not engage in persecution because in the

course of his military intelligence-gathering activities, he never

physically tortured or harmed any person. We do not believe the

statutory language defines persecution so narrowly. Congress

expressly precluded the relief he seeks for any alien who "ordered,

incited, assisted, or otherwise participated in" persecution. 8 U.S.C.A.

§§ 1158(b)(2)(A)(i), 1231(b)(3)(B)(i) (emphasis added). The text makes

clear that while the commission of actual physical harm may be sufficient

to bring an alien within the persecution exception, it is not necessary.

See Singh v. Gonzales, 417 F.3d 736, 740 (7th Cir. 2005) (alien assisted

or participated in persecution where he helped bring religious

minorities into custody and was aware that they were physically abused).

Our conclusion that persecution is not limited to physical harm finds

support in the corpus of circuit law interpreting the identical language

in the Holtzman Amendment, which denies relief to former Nazis who

"ordered, incited, assisted, or otherwise participated in" persecution. 8

U.S.C.A. § 1182(a)(3)(E)(i); see, e.g., Negele v. Ashcroft, 368 F.3d 981,

983-84 (8th Cir. 2004) (actual participation in physical atrocities unne-

cessary for finding that alien engaged in persecution); Naujalis v. INS,

240 F.3d 642, 646 (7th Cir.

HIGUIT v. GONZALES 7

2001) (government need not show that alien "personally participated

in the atrocities"); Hammer v. INS, 195 F.3d 836, 843 (6th Cir. 1999)

(same).

In this case, the IJ determined Higuit was aware that his

information-gathering and infiltration led to the torture, imprison-

ment, and death of NPA members and other political opponents, as

well as individuals merely suspected of affiliation with these groups.

This brutality was the result of the information Higuit covertly gath-

ered and provided to his superiors over a period of approximately ten

years. See Singh, 417 F.3d at 740 (length of involvement relevant to

whether alien assisted or participated in persecution). Under these cir-

cumstances, the IJ properly determined that Higuit did assist or other-

wise participate in persecution. While "a distinction must be made

between genuine assistance in persecution and inconsequential associ-

ation with persecutors," id. at 739, there can be no dispute over

Higuit’s personal culpability in this case.

IV.

For the foregoing reasons, we dismiss the appeal in part and affirm

the judgment of the BIA in part.

DISMISSED IN PART AND AFFIRMED IN PART