Abu-Khaliel v. Gonzales

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 06a0044p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

X

Petitioner, -

HISHAM D. ABU-KHALIEL,

-

-

-

No. 04-4061

v.

,

>

ALBERTO GONZALES, U.S. Attorney General, -

Respondent. -

N

On Petition for Review of an Order

of the Board of Immigration Appeals.

No. A74 738 054.

Argued: October 27, 2005

Decided and Filed: February 1, 2006

Before: KEITH, KENNEDY, and BATCHELDER, Circuit Judges.

_________________

COUNSEL

ARGUED: Svetlana J. Schreiber, SVETLANA SCHREIBER & ASSOCIATES, Cleveland, Ohio,

for Petitioner. Barry J. Pettinato, UNITED STATES DEPARTMENT OF JUSTICE, Washington,

D.C., for Respondent. ON BRIEF: Svetlana J. Schreiber, SVETLANA SCHREIBER &

ASSOCIATES, Cleveland, Ohio, for Petitioner. Barry J. Pettinato, David V. Bernal, UNITED

STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

_________________

OPINION

_________________

KENNEDY, Circuit Judge. Hisham Dawood Abu-Khaliel (“Petitioner”) petitions this court

for review of the decisions of the immigration judge (“IJ”) denying his request for a continuance and

voluntary departure, and the decision of the Board of Immigration Appeals (“BIA”) denying his

motion to remand. The Government contests our jurisdiction to hear Petitioner’s claims. For the

following reasons, we hold that we have jurisdiction to review all Petitioner’s claims except his

request for voluntary departure. However, we DENY the petition on the merits.

BACKGROUND

Petitioner is a native of Israel and a citizen of Jordan. He entered the United States as a non-

immigrant visitor for pleasure on September 20, 1995. His authorization expired on March 19,

1996. Petitioner remained in the country after the expiration of his authorization. On January 13,

1997, Petitioner married Shaheerah Jean Storrs, a citizen of the United States. On April 28, 1997,

1

No. 04-4061 Abu-Khaliel v. Gonzales Page 2

Petitioner was convicted in the Shaker Heights, Ohio, Municipal Court of five counts of criminal

simulation in violation of § 745.12(a)(4)1 of the Shaker Heights codified ordinances. He was also

convicted, on the same day, and in the same court, of criminal simulation in violation of

§ 2913.32(a)(4)2 of the Ohio Revised Code.

The former Immigration and Naturalization Service (“I.N.S.”) initiated removal proceedings

against Petitioner on December 1, 1999. In its notice to appear (“NTA”), the I.N.S. charged

Petitioner with being subject to removal pursuant to Title 8 U.S.C. § 1227(a)(1)(B) and (a)(2)(A)(ii)

(1999), as an alien who, after admission, remained in the United States for longer than he was

permitted, and who was convicted of two crimes involving moral turpitude. At the initial hearing

held on August 1, 2001, Petitioner admitted to an IJ all but one of the factual allegations in the NTA.

He only denied that the crimes for which he was convicted arose from more than a single scheme

of criminal misconduct. Thus, he admitted that he was removable pursuant to Title 8 U.S.C.

§ 1227(a)(1)(B) (1999). Petitioner also requested voluntary departure. The IJ continued the

proceedings until July 12, 2002 based on an I-130 family-based certification filed by Petitioner’s

wife.

The July 12, 2002 hearing was continued until May 2, 2003, in order to permit Petitioner to

seek a labor certification. The labor certification never materialized. In August of 2002, Petitioner

finalized his divorce from his first wife. Five days before his May 2, 2003 hearing, Petitioner

married his second wife. Petitioner’s second wife filed a second I-130 on his behalf.

At the May 2, 2003 hearing, the IJ determined that Petitioner was removable as charged, and

ordered him deported to Jordan. At the beginning of that hearing, the IJ, exercising her discretion,

denied Petitioner’s request for a third continuance based on the second I-130 filed by Petitioner’s

new wife. The IJ cited the number and length of the prior continuances, the fact that the second wife

would have been aware of Petitioner’s pending deportation proceeding prior to her marriage to him,

and Petitioner’s criminal convictions as reasons for declining to exercise her discretion. The IJ also

expressed some frustration that Petitioner had not informed the court of his pending divorce at the

July 12, 2002 hearing where the second continuance was granted.3 Finally, the IJ denied Petitioner

voluntary departure.

Petitioner appealed the IJ’s rulings to the BIA where he made a motion to remand. The BIA

affirmed the IJ and denied the motion. Petitioner now asks this court to review the IJ’s decisions

on the denial of a continuance, the IJ’s denial of voluntary departure, and the the BIA’s decision

denying his motion to remand. Petitioner also contests the IJ’s decision with respect to whether his

1

The relevant portions of Shaker Heights Codified Ordinance § 745.12(a) read:

No person, with purpose to defraud, or knowing that the person is facilitating a fraud, shall do any of

the following:

. . . (2) Practice deception in making, retouching, editing, or reproducing any photograph, movie film,

video tape, phonograph record, or recording tape . . .

(4) Utter, or possess with purpose to utter, any object that the person knows to have been simulated

as provided in division (A)(1), (2), or (3) of this section.

2

Ohio Revised Code § 2913.32(A)(4) is identical to Shaker Height Codified Ordinance § 745.12(a)(4).

3

Petitioner points out that the subject of discussion of the July 12, 2002 hearing was the pending labor

certification and not the I-130 filed by his previous wife, although that too was mentioned. While it does appear from

the record that the IJ may have been confused as to the subject matter discussed at the July 12, 2002 hearing, as we hold

below, the other reasons given by the IJ are sufficient to affirm the IJ under the abuse of discretion standard of review.

No. 04-4061 Abu-Khaliel v. Gonzales Page 3

convictions stemmed from a single scheme of criminal misconduct.4 The Government contests our

jurisdiction to hear the appeal. The Government also, in the alternative, contests the merits of

Petitioner’s arguments.

ANALYSIS

A. Jurisdiction

We must first address the question of whether this court has jurisdiction over Petitioner’s

claims. We review the existence of subject matter jurisdiction de novo. Ammex, Inc., v. Cox, 351

F.3d 697, 702 (6th Cir. 2003). Petitioner asserts that this court has jurisdiction to review the IJ’s

denial of voluntary departure, the BIA’s denial of his motion to remand his case to the IJ, and the

IJ’s denial of a continuance. We address each argument in turn.

Title 18 U.S.C. § 1252(a)(1) grants judicial review of final orders of removal except as

provided in subsection(b). However, Title 8 U.S.C. § 1252(a)(2)(B)(i) (1999), regardless of whether

the judgment, decision, or action is made in removal proceedings, strips courts of jurisdiction to

review “any judgment5regarding the granting of relief under section 1182(h), 1182(i), 1229b, 1229c,

or 1255 of this title.” Voluntary departure is addressed in 8 U.S.C. § 1229c (1999). Thus, this

court lacks jurisdiction to review the IJ’s denial of voluntary departure. See 8 U.S.C. § 1229c(f)

(1999).

4

Because Petitioner has already admitted that he is removable pursuant to Title 8 U.S.C. § 1227(a)(1)(B) (1999),

due to his overstay, he has admitted that he is deportable absent an adjustment of his status. In light of our holding on

the merits of his appeal concerning the discretionary decisions of the IJ and the BIA, it is unnecessary for this court to

rule on Petitioner’s arguments that his crimes arose out of a single scheme of criminal misconduct, and we decline to

do so.

5

8 U.S.C. § 1252 reads as follows:

(a) Applicable provisions

(1) General orders of removal

Judicial review of a final order of removal (other than an order of removal without a hearing pursuant to section

1225(b)(1) of this title) is governed only by chapter 158 of Title 28, except as provided in subsection (b) of this section

and except that the court may not order the taking of additional evidence under section 2347(c) of Title 28.

(2) Matters not subject to judicial review

...

(B) Denials of discretionary relief

Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any

other habeas corpus provision, and sections 1361 and 1651 of such title, and except as provided in subparagraph

(D), and regardless of whether the judgment, decision, or action is made in removal proceedings, no court shall have

jurisdiction to review--

(i) any judgment regarding the granting of relief under section 1182(h), 1182(i), 1229b, 1229c, or 1255 of this

title, or

(ii) any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for

which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of

Homeland Security, other than the granting of relief under section 1158(a) of this title.

No. 04-4061 Abu-Khaliel v. Gonzales Page 4

This court has already determined that it has jurisdiction over the BIA’s denial of a motion

to remand. See Pilica v. Ashcroft, 388 F.3d 941, 945-48 (6th Cir. 2004). In Pilica, this court held

that a motion to reopen that does not involve the consideration of relief on the merits should not be

treated as “regarding” the granting of relief under § 1255. Id. Accordingly, this court held that it

had jurisdiction over the BIA’s denial of a motion to remand. Id. Similarly here, the motion for

remand involves procedural issues, not the merits of Petitioner’s claims. Thus, the Government’s

arguments to the contrary are unavailing.

The question of whether this court has jurisdiction to review the IJ’s denial of a continuance

requires a more nuanced discussion. Title 8 U.S.C. § 1252(a)(2)(B)(ii) (1999) strips courts of

jurisdiction to review “any other decision or action of the Attorney General the authority for which

is specified under this subchapter to be in the discretion of the Attorney General, other than the

granting of relief under section 1158(a) of this title.” The phrase “this subchapter” refers to

subchapter II of Chapter 12 of Title 8, U.S.C. §§ 1151-1378. Zafar v. U.S. Attorney General, 426

F.3d 1330, 1334 (11th Cir. 2005); Onyinkwa v. Ashcroft, 376 F.3d 797 (8th Cir. 2004). See also Van

Dinh v. Reno, 197 F.3d 427, 433 (10th Cir. 1999).

In CDI Information Services, Inc., v. Reno, 278 F.3d 616, 619 (6th Cir. 2002), this court

applied 8 U.S.C. § 1252(a)(2)(B)(ii) in holding that it lacked jurisdiction over the I.N.S.’s decision

denying an immigrant an extension of his visa. We determined that 8 U.S.C. § 1184(a)(1) and its

accompanying regulation, 8 C.F.R. § 214.1(c)(5), gave the Attorney General discretion to decide

on visa extensions and, because of that discretion, under 8 U.S.C. § 1252(a)(2)(B)(ii), the court

lacked jurisdiction. See id. 619-20.

The Government notes that Petitioner appeals only the denial of his motion for a continuance

and not his removability. The Government argues that 8 U.S.C. § 1229a(a)(1) (1999), which reads:

“An immigration judge shall conduct proceedings for deciding the inadmissibility or deportability

of an alien,” and 8 C.F.R. § 3.29 (1999) (now codified at 8 C.F.R. § 1003.29), which reads: “The

Immigration Judge may grant a motion for continuance for good cause shown,” give the IJ discretion

over the granting of continuances. Apparently, the Government concludes that the IJ’s decision to

grant or deny a continuance when presiding in a removal proceeding is a decision within the

discretion of the Attorney General, with the result that this court is stripped of jurisdiction pursuant

to 8 U.S.C. § 1252(a)(2)(B)(ii). The Government reaches this conclusion by relying on Onyinkwa

and on this Circuit’s decision in CDI Information Services. Onyinkwa, 376 F.3d at 799 (“Whenever

a regulation implementing a subchapter II statute confers discretion upon an IJ, IIRIRA generally

divests courts of jurisdiction to review the exercise of that discretion.”) (citing CDI Info. Serv., Inc.

v. Reno, 278 F.3d at 619).

In Onyinkwa, the Eighth Circuit relying on this court’s opinion in CDI Information Services6

found that it lacked jurisdiction to rule on whether an IJ improperly denied Onyinkwa a continuance.

Onyinkwa, 376 F.3d at 799. The Onyinkwa court did recognize an exception to the rule for

situations where a “showing of a substantial violation” has been made. Id. In relying on CDI

Information Services, we believe that Onyinkwa misapplied our precedent. CDI Information

Services dealt with an application for a visa extension. Section 1184(a)(1) and the regulation it

enables, 8 C.F.R. § 214.1(c)(5), give the Attorney General discretion over the granting of visa

applications. In contrast, continuances are governed by 8 U.S.C. § 1229a(a)(1) and 8 C.F.R. § 3.29,

which give IJs discretion over the granting of continuances. The Attorney General is not given

discretion to order removal in contested removal proceedings, and the Government does not so

contend. Section 1252(a)(2)(B)(ii) only applies to the portions of subchapter II left to the Attorney

6

Onyinkwa also relied on this court’s decision in Koenig v. I.N.S., 64 Fed.Appx. 996 (6th Cir. 2003)

(unpublished)). Insofar as Koenig is not distinguishable from this case, it is only persuasive, and we decline to apply

it.

No. 04-4061 Abu-Khaliel v. Gonzales Page 5

General’s discretion, not the portions of subchapter II that leave discretion with IJs in matters where

IJs are merit decision-makers that are subject to our review. Cf. Zafar, 426 F.3d at 1334-35;

Medina-Morales v. Ashcroft, 371 F.3d 520, 528-29 (9th Cir. 2004). Thus, under the plain language

of § 1252(a)(2)(B)(ii), the sections the Government points to and the sections the Eighth Circuit

relied on do not strip this court of jurisdiction.

The Tenth Circuit in Yerkovich v. Ashcroft, 381 F.3d 990, 995 (10th Cir. 2004), also

determined that it lacked jurisdiction to “review . . . the IJ’s discretionary decision denying

petitioner’s motion for a continuance.” In Yerkovich, the Tenth Circuit recognized a conflict among

the circuits, but decided that it lacked jurisdiction to review an IJ’s denial of a continuance when the

IJ gained the power to grant that continuance under the regulations only. The Tenth Circuit found

that the plain language in § 1252(a)(2)(B)(ii) bars courts from granting relief specified under the

chapter, and that § 1252(a)(2)(B)(ii) does not differentiate between whether the discretion is

conferred in the statute or in a regulation. The Tenth Circuit also reasoned that because IJs are

designees of the Attorney General, they are governed by provisions regarding the Attorney General.

The Sixth Circuit case that the Tenth Circuit cites for this proposition, however deals with an IJ

determining whether an immigrant qualifies for “extreme hardship.” See Valenzuela Alcantar v.

I.N.S., 309 F.3d 946, 949 (6th Cir. 2002). Once again, as with extension of visas, extreme hardship

determinations were explicitly left to the discretion of the Attorney General by 8 U.S.C. § 1254(a)(1)

(repealed 1996). Because those decisions are left to the Attorney General by statute, and the ability

to grant continuances is left to the discretion of IJs by statute and regulation, the situations are not

comparable. This case is distinguishable from the logic in Yerkovich for the same reasons that it is

distinguishable from CDI Information Services.

The Third Circuit’s decision in Urena-Tavarez v. Ashcroft, 367 F.3d 154, 158 n.6 (3rd Cir.

2004), is similar to CDI Information Services. Urena-Tavarez dealt with 8 U.S.C. § 1186a(c)(4),

which gives the Attorney General discretion to “remove the conditional basis of the permanent

resident status for an alien.” Because the statute at issue in Urena-Tavarez granted discretion to the

Attorney General, it is distinguishable from this case.

In contrast, other circuits have found that they have jurisdiction in cases where the circuit

court has jurisdiction to review the decision of the IJ on the merits, as it does here. The Ninth

Circuit, in Medina-Morales, 371 F.3d at 528, determined that it had jurisdiction to review an IJ’s

denial of a motion to reopen a case because that decision was not one in “which a statute gives the

Attorney General pure discretion unguided by legal standards or statutory guidelines.” The Ninth

Circuit agreed that regulations gave IJs broad discretion over motions to remand. Id. It also agreed

that the relevant statutes did not grant or deny the Attorney General discretionary authority over

continuances. Id. The Ninth Circuit indicated that the relevant statutes “can perhaps be said to have

left such authority to the Attorney General by default.” Id. But, the Ninth Circuit did not believe

that such default authority would be enough to strip the court of jurisdiction because “default

authority does not constitute the specification required by § 1252(a)(2)(B)(ii).” Id.

Similarly, the Eleventh Circuit addressed this question in Zafar. It relied on the fact that

“[t]he expressed authority of an immigration judge to grant or deny a motion to continue a hearing

is not found under the particular ‘subchapter’ where § 1252(a)(2)(B)(ii) is contained . . . .” Id. at

1334. The Eleventh Circuit, like the Ninth Circuit, relied on the lack of a specific statutory

delegation of discretion to the Attorney General in determining that the court had jurisdiction.

Finally, the Seventh Circuit found that it had jurisdiction to decide whether an IJ abused his

or her discretion in denying a continuance in a removal proceeding involving an adjustment of

status. Subhan v. Ashcroft, 383 F.3d 591, 595 (7th Cir. 2004). The Subhan court held that:

No. 04-4061 Abu-Khaliel v. Gonzales Page 6

we nevertheless think it unlikely that Congress, intending, as it clearly did, to entitle

illegal aliens to seek an adjustment of status upon the receipt of certificates from the

state and federal labor departments, at the same time also intended section

1252(a)(2)(B)(ii) to place beyond judicial review decisions by the immigration

authorities that nullified the statute. If that section is applicable to cases such as

this--cases, that is, in which rulings on requests for adjustment of status are

precluded by procedural rulings--immigration judges can with impunity refuse to

grant one-week continuances to persons in Subhan's position.

Id. In so holding, the Seventh Circuit focused on the concern that if it lacked jurisdiction to review

procedural rules in certain types of cases, that lack of jurisdiction would also effectively strip a court

of jurisdiction to review the very merits of a claim that it would otherwise have jurisdiction to

review. See id.7

Like the Ninth and Eleventh Circuits, we agree that we have jurisdiction to review the IJ’s

denial of a continuance. We reach that conclusion through somewhat different reasoning. The

regulation to which the Government points, 8 C.F.R. § 3.29, makes explicit an implicit power

granted to immigration judges by 8 U.S.C. § 1229a(a)(1). In § 1229a(a)(1), Congress granted IJs

the power to “conduct proceedings.” Thus, their powers to conduct removal proceedings are not

conferred by the Attorney General. In our view, a necessary component of that power is the ability

to decide when to conduct those proceedings, or when it is appropriate to delay a proceeding until

a later time. It would appear, therefore, that Congress implicitly granted IJs the power to grant

continuances in 8 U.S.C. § 1229a(a)(1). While it may not be a denial of due process to forbid a

judicial officer from granting necessary continuances, in the absence of such a restriction, that power

is surely implied.

Section 1229a(a)(1) falls within subchapter II, and it is, therefore, subject to 8 U.S.C.

§ 1252(a)(2)(B)(ii). Thus, we are not persuaded by the logic of the Ninth and the Eleventh Circuits.

As we have previously discussed, however, we agree with the result that those courts reached

because we do not believe that an IJ and the Attorney General are the same when the IJ is carrying

out duties conferred by statute as opposed to when the IJ is performing duties delegated by the

Attorney General.

If Congress desired to strip this court of jurisdiction to review decisions within subchapter

II that it left to the discretion of an IJ, it could have done so. Because it only stripped this court of

jurisdiction for decisions within subchapter II it left to the discretion of the Attorney General, we

have jurisdiction to review the IJ’s decision to deny a continuance for an abuse of discretion. We

are further persuaded by the analysis of the Seventh Circuit in Subhan. If Congress grants courts

the ability to review the merits of a proceeding, it would seem very odd indeed for a court to lack

the ability to review a procedural decision that is determinative of the merits of a case, particularly

when the court has jurisdiction to review the merits of that case absent a conclusive procedural

ruling.

B. Merits

The BIA’s denial of a motion to remand is reviewed for an abuse of discretion. Fieran v.

I.N.S., 268 F.3d 340, 344 (6th Cir. 2001) (citing Ashki v. I.N.S., 233 F.3d 913, 917 (6th Cir. 2000)).

In addition, we review the denial of a continuance for an abuse of discretion in light of the fact that

a grant of a continuance is within the discretion of the IJ. See 8 C.F.R. § 3.29. See also Witter, 113

F.3d at 555. “In determining whether the Board abused its discretion, this Court must decide

7

In Witter v. I.N.S., 113 F.3d 549, 555 (5th Cir. 1997), the Fifth Circuit ruled on whether the BIA abused its

discretion in denying an appeal from a continuance without ruling on the jurisdictional question posed here.

No. 04-4061 Abu-Khaliel v. Gonzales Page 7

whether the denial . . . was made without a rational explanation, inexplicably departed from

established policies, or rested on an impermissible basis such as invidious discrimination . . . .”

Balani v. I.N.S., 669 F.2d 1157, 1161 (6th Cir.1982).

In this case, we cannot say that either the IJ’s denial of a continuance or the BIA’s

consequent denial of Petitioner’s motion to remand were abuses of discretion. The IJ offered two

uncontroverted reasons to explain why denial of a further continuance was appropriate. First, the

IJ cited to the length of the prior continuances. Second, the IJ pointed out that Petitioner had

violated the laws of the United States.8 These reasons alone provide sufficient basis for this court

to find that the IJ did not abuse her discretion in denying Petitioner a further continuance. To the

extent that Petitioner alleges a denial of due process, his argument is not well taken. See Huicochea-

Gomez v. I.N.S., 237 F.3d 696, 700 (6th Cir. 2001) (“The failure to be granted discretionary relief

does not amount to a deprivation of a liberty interest.”).

Furthermore, on review, the BIA found that: “Moreover, given the circumstances noted by

the Immigration Judge and the opposition filed by the Department of Homeland Security, we are not

persuaded that a remand of these proceeding[s] is warranted.” Although we have previously

admonished the BIA for not providing this court with “any explanation whatsoever,” see Pilica, 388

F.3d at 948, we hold that the BIA’s explanation, though vague, is sufficient to find that it did not

abuse its discretion in this case, particularly since the IJ did not abuse her discretion in denying the

continuance and Petitioner admitted that he was otherwise deportable.

CONCLUSION

For the foregoing reasons, we DISMISS the portion of the petition requesting voluntary

departure for lack of jurisdiction, and we DENY the remainder of the petition for review.

8

Even if Petitioner is correct that his crimes were out of a single scheme of criminal misconduct, a single

violation of a criminal statute could provide a sound basis for an IJ to deny a continuance after having already granted

two previous continuances.