De Perio v. Gonzales

224 F. App'x 588

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 7, 2007
• Docket: No. 05-74638
• Status: Published

Opinions

MEMORANDUM

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Petitioners Alfredo and Myrna De Perio and their children filed a petition for a writ of habeas corpus in the district court challenging the former Immigration and Naturalization Service district director’s failure to cancel the revocation of Alfredo De Perio’s visa application for humanitarian reasons. The district court transferred the matter to this court pursuant to § 106(c) of the REAL ID Act of 2005, Pub.L. No. 109-13,119 Stat. 231.

We are not precluded by 8 U.S.C. § 1252(a)(2)(B)(ii) from exercising jurisdiction over this appeal because that statute “applies only to acts over which a statute gives the Attorney General pure discretion,” Medina-Morales v. Ashcroft, 371 F.3d 520, 528 (9th Cir.2004) (emphasis added), and thus does not apply to our review of a discretionary decision made pursuant to regulation. See also Fernandez v. Gonzales, 439 F.3d 592, 601 (9th Cir.2006). Nor does Elbez v. INS, 767 F.2d 1313, 1314 (9th Cir.1985), prevent us from reviewing this case. That case merely stands for the proposition that “[m]atters relating to the withdrawal of visa petitions ... are not within the scope of a deportation proceeding” and “must be initially raised in the district court.” Id. The De Perios did raise the matter in a collateral proceeding in the district court and only find themselves before this court by operation of the REAL ID Act. Absent any applicable jurisdictional bar, we have jurisdiction under 28 U.S.C. § 1331 and the Administrative Procedure Act, 5 U.S.C. §§ 701 et seq. See ANA Int’l Inc. v. Way, 393 F.3d 886, 890 (9th Cir.2004).

The doctrine of res judicata does not apply because our prior decision involving the De Perios did not resolve petitioners’ visa revocation claims on the merits. See, e.g., Western Radio Services Co. v. Glickman, 123 F.3d 1189, 1192 (9th Cir.1997). Instead, in the prior chse the De Perios had “not petition[ed] for review of the visa petition decision” and "tims that challenge was “not before us.” See De Perio v. Ashcroft, 120 Fed.Appx. 75, 76 (9th Cir.2005) (unpublished disposition). We therefore lacked jurisdiction over the visa challenge raised here, see id., and there was no “final judgment on the merits ” with regard to that issue. See Western Radio, 123 F.3d at 1192 (emphasis added).

The district director did not abuse his discretion by failing to cancel the automatic revocation of Alfredo De Perio’s visa petition for humanitarian reasons. See 8 C.F.R. § 205.1(a)(3)(i)(C) (1998). The director offered “facially legitimate and bona fide reasons[s]” for refusing to revoke cancellation, see Noh v. INS, 248 F.3d 938, 942 (9th Cir.2001), including De Perio’s failure to come to the United States until after his mother’s death, his filing of a fraudulent asylum petition and the relative strength of his ties to the United States and the Philippines.

As petitioners have never allowed the period for voluntary departure to lapse, they still qualify for that remedy. Accordingly, the stay of removal and voluntary departure shall remain in force until 30 days following issuance of the mandate.

PETITION DENIED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.