Maiwand v. Gonzales

501 F.3d 101
CourtCourt of Appeals for the Second Circuit
DecidedSeptember 11, 2007
Docket05-6055
StatusPublished

This text of 501 F.3d 101 (Maiwand v. Gonzales) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Maiwand v. Gonzales, 501 F.3d 101 (2d Cir. 2007).

Opinion

501 F.3d 101 (2007)

Mohammad Homayun MAIWAND, Petitioner,
v.
Alberto R. GONZALES, Attorney General, Respondent.

Docket No. 05-6055-ag.

United States Court of Appeals, Second Circuit.

Argued: March 21, 2007.
Decided: September 11, 2007.

*102 Michael P. DiRaimondo, DiRaimondo & Masi, LLP (Marialaina L. Masi, Mary Elizabeth Delli-Pizzi, Stacy A. Huber, of counsel), Melville, NY, for Petitioner.

Papu Sandhu, Office of Immigration Litigation, Department of Justice (Peter D. Keisler, Assistant Attorney General, of counsel), Washington, DC, for Respondent.

Before: SACK, B.D. PARKER, and HALL, Circuit Judges.

SACK, Circuit Judge:

Mohammad Homayun Maiwand, a native and citizen of Afghanistan, petitions for review of a decision by the Board of Immigration Appeals ("BIA") denying 1) his application for a waiver of inadmissibility under section 212(c) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1182(c); 2) his request for relief pursuant to regulations implementing the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 85 ("CAT"); and 3) his motion to terminate the removal proceedings against him. In re Mohammad Homayan Maiwand, No. A 28 906 603 (B.I.A. Jan. 29, 2004), aff'g No. A 28 906 603 (Immig. Ct. N.Y. City July 22, 2002).

Maiwand contests the BIA's denial of section 212(c) relief, but his arguments raise no constitutional claim or question of law. We are therefore without jurisdiction to review the BIA's decision in that regard. To that extent, we dismiss the petition. We also dismiss the petition insofar as it asks us to review the correctness of the IJ's fact-finding regarding Maiwand's CAT claim. To the extent Maiwand argues that the IJ erred in assessing what evidence could satisfy his burden of proof under the CAT regulations, we find the argument to be without merit.

Maiwand's challenge to the third part of the BIA's decision is based on his argument that because he entered the country as a refugee, the BIA is statutorily prohibited from ordering his removal without first cancelling that status. Although this is a question of law that we have jurisdiction to review, we conclude that the BIA's interpretation of the relevant statutes and regulations are reasonable. To that extent, we deny the petition.

BACKGROUND

According to Maiwand's testimony before Immigration Judge ("IJ") Alan A. Vomacka, Maiwand is a member of the Mohummed Ziy monarchy, which ruled Afghanistan for about two hundred years prior to the 1980s. In 1988, after the Ziy family was overthrown by the Soviet Union, Maiwand escaped with his wife Fazila to the United States. He was accorded refugee status in 1990. In 1992, the INS[1] granted his application for adjustment of status and, retroactive to 1991, made Maiwand a legal permanent resident ("LPR"). Fazila became a United States citizen in 1997. Maiwand and Fazila have three children born in the United States in 1990, 1992, and 1994, respectively. They are United States citizens.

In 1993, Maiwand, in exchange for $5,000, introduced an Afghani friend, who said he wanted to purchase heroin, to another *103 friend who Maiwand knew was selling heroin. Maiwand was charged by the State of New York with, and pled guilty to, second degree criminal sale of a controlled substance. Maiwand's conviction subjected him to deportation because it "relat[ed] to a controlled substance." 8 U.S.C. § 1251(a)(2)(B)(i) (1994) (current version at 8 U.S.C. § 1227). The INS issued an order to show cause in 1994. Maiwand appeared before an IJ, conceded removability, attempted to secure refugee status through his first asylum application, and applied for relief under INA § 212(c). The IJ found Maiwand ineligible for both forms of relief. Maiwand's case then began a convoluted journey through the immigration agency and the federal courts, recounted at length in In re Mohammad Homayan Maiwand, No. A 28 906 603 (B.I.A. June 23, 2000). As relevant to this petition, the BIA remanded Maiwand's case to the IJ in 2000 to allow the IJ to reconsider Maiwand's application for section 212(c) relief and any other relief that might have been available as a result of the amount of time that had passed since the IJ had last considered Maiwand's applications. See id.

On remand, the IJ denied Maiwand's application for a waiver of inadmissibility pursuant to section 212(c), in large part because new testimony by Maiwand before the IJ convinced the IJ that Maiwand's earlier testimony falsely minimized his involvement in the heroin transaction that led to his 1993 conviction. In light of the new information and the IJ's corresponding doubts about Maiwand's credibility, the IJ decided not to exercise the Attorney General's discretion delegated to the IJ to grant Maiwand a section 212(c) waiver.

The IJ also denied Maiwand's application for CAT relief. The judge recognized that the Afghan government might be unable to protect Maiwand from the violent acts of rogue elements in the country. The IJ nonetheless found that Maiwand had failed to show a "probability that [he] would be taken into custody by the government under the present situation in Afghanistan [or] a probability that if he were taken into custody by some other group, it would be with the acquiescence of the government." Oral Decision Tr., dated July 22, 2002, at 6. In sum, the IJ found, Maiwand had "not established a probability of being tortured in Afghanistan." Id.

Maiwand appealed to the BIA, which affirmed the IJ's denial of relief under both section 212(c) and CAT. Maiwand also filed a motion asking the BIA to terminate the proceedings based on the theory that as a refugee, he could not be removed from the country. The BIA denied this motion, reasoning that once Maiwand adjusted his status from that of refugee to that of an LPR, his previous refugee status provided no basis for terminating removal proceedings.

Maiwand petitions for review.

DISCUSSION

I. Standard of Review

"Where, as here, the BIA adopts and affirms the decision of the IJ, and supplements the IJ's decision, we review the decision of the IJ as supplemented by the BIA." Islam v. Gonzales, 469 F.3d 53, 55 (2d Cir.2006).

We apply the principles of Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), to agency interpretations of statutes when Congress has delegated law-making authority to the agency and the interpretation was promulgated pursuant to that authority. Ucelo-Gomez v. Gonzales, 464 F.3d 163, 168 (2d Cir. 2006) (citing United States v. Mead Corp., 533 U.S. 218, 226-27, 121 S.Ct. 2164, 150 *104

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Related

Maiwand v. Gonzales
501 F.3d 101 (Second Circuit, 2007)
United States v. Mead Corp.
533 U.S. 218 (Supreme Court, 2001)
Immigration & Naturalization Service v. St. Cyr
533 U.S. 289 (Supreme Court, 2001)
Mahamed Ayenul Islam v. Alberto R. Gonzales
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SMRIKO
23 I. & N. Dec. 836 (Board of Immigration Appeals, 2005)

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Bluebook (online)
501 F.3d 101, Counsel Stack Legal Research, https://law.counselstack.com/opinion/maiwand-v-gonzales-ca2-2007.