Muhammad Ashfaque v. William P. Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 5, 2019
• Docket: 18-56084
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION DEC 05 2019 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MUHAMMAD FAISAL ASHFAQUE, No. 18-56084

Plaintiff-Appellant, D.C. No. 2:16-cv-09059-PSG-SS v.

WILLIAM P. BARR, Attorney General; et MEMORANDUM* al.,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Philip S. Gutierrez, District Judge, Presiding

Argued and Submitted November 5, 2019 Pasadena, California

Before: FARRIS, McKEOWN, and PARKER,** Circuit Judges.

Petitioner Ashfaque sought lawful permanent residency under 8 U.S.C. §

1159(b). His request for adjustment of status was denied. Ashfaque sought review

in federal court. The District Court dismissed his claim for lack of jurisdiction.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Barrington D. Parker, Jr., United States Circuit Judge for the U.S. Court of Appeals for the Second Circuit, sitting by designation. We review the District Court’s dismissal for lack of subject matter jurisdiction de

novo. Pride v. Correa, 719 F.3d 1130, 1133 (9th Cir. 2013). We affirm.

The APA provides an avenue for judicial review of the denial of certain

immigration benefits, see, e.g., Perez Perez v. Wolf, No. 18-35123, 2019 WL

6224421 (9th Cir. 2019), but 8 U.S.C. § 1252(a)(2)(B)(ii) precludes judicial review

of any decision or action “the authority for which [the INA specifies] to be in the

discretion of the Attorney General or the Secretary of Homeland Security.” The

District Court erroneously relied on 8 U.S.C. § 1252(a)(2)(B)(i), which precludes

review of discretionary decisions taken in the context of certain enumerated forms

of immigration relief. That section does not incorporate § 1159(b), the provision at

issue in this case, and all parties agree that § 1252(a)(2)(B)(i) does not apply here.

Nevertheless, because we hold that the District Court lacked jurisdiction because of

subclause (ii), the District Court’s misplaced reliance on subclause (i) is irrelevant

to this appeal. Notwithstanding § 1252(a)(2)(B)(ii), no statute “preclud[es] review

of constitutional claims or questions of law” that arise in the context of such

discretionary determinations. Id. § 1252(a)(2)(D); see also Mamigonian v. Biggs,

710 F.3d 936, 945 (9th Cir. 2013).

The relief sought by Ashfaque—adjustment of status for asylees—was

ultimately discretionary. See 8 U.S.C. § 1159(b) (providing that the Secretary of

2 Homeland Security or the Attorney General “may,” “in [their] discretion and under

such regulations as [they] may prescribe,” adjust the status of an alien who meets

enumerated statutory criteria); see also Diego v. Sessions, 857 F.3d 1005, 1011

(9th Cir. 2017) (holding that § 1252(a)(2)(B)(ii) bars review of “any discretionary

aspect of the agency’s decision to deny Diego’s application for adjustment of

status . . . under 8 U.S.C. § 1159(b)”). Although Ashfaque styles his challenge as

one involving legal error, the District Court correctly determined that USCIS’s

discretionary denial was free of the legal error alleged and thus immune from

review.

USCIS denied the application on two separate grounds, each of which is

independently sufficient. First, USCIS found Ashfaque “inadmissible under [8

U.S.C. § 1182(a)(3)(B)(i)(I)] for having engaged in terrorist activities as defined

by [8 U.S.C. § 1182(a)(3)(B)(iv)(VI)(dd)] . . . .” Second, USCIS stated that “[i]n

the alternative, [Ashfaque’s] application is being denied in the exercise of

discretion due to [his] failure to respond to the request for information about the

circumstances of [his] underlying arrest.” Ashfaque claims that USCIS’s

discretionary determination was the product of legal error for two reasons. First,

Ashfaque points out that he did respond to USCIS’s request for information.

Second, Ashfaque claims that USCIS committed legal error by defying binding

3 agency precedent and improperly relying on disputed and uncorroborated

accusations of criminal conduct that did not result in criminal convictions. See In

re Arreguin de Rodriguez, 21 I. & N. Dec. 38, 42 (BIA 1995) (explaining that

adjudicators should generally not “give substantial weight to an arrest report,

absent a conviction or corroborating evidence of the allegations”). Although

Ashfaque was charged with willful cruelty to a child, inflicting injury upon a child,

and dissuading a witness in 2004, the prosecutor dropped those charges and

Ashfaque was eventually convicted only of disturbing the peace, a misdemeanor

violation of California Penal Code § 415.

Both of Ashfaque’s claims fail for the same reason—Ashfaque did not

adequately respond to USCIS’s request for “an explanation and a description of the

circumstances surrounding [his] arrest and conviction.” Ashfaque responded to the

request by submitting minute orders from his criminal case in California state court

and legal analysis arguing that his conviction did not constitute a crime involving

moral turpitude and should not justify the denial of his application on discretionary

grounds. But Ashfaque did not provide what USCIS specifically requested—an

“explanation and a description of the circumstances surrounding” his arrest.

USCIS was permitted to request such an explanation in order to inform its

discretionary determination. See, e.g., Matter of Thomas, 21 I. & N. Dec. 20, 23

4 (BIA 1995) (explaining that the BIA may “consider evidence of unfavorable

conduct, including criminal conduct which has not culminated in a final

conviction”). As a corollary, USCIS was permitted to deny Ashfaque’s application

for failing to provide it.

We therefore reject Ashfaque’s claim of legal error. USCIS denied

Ashfaque’s application because he failed to provide USCIS with the information it

specifically requested—information that the agency needed as a prerequisite to

weighing the relative significance of the evidence in the record. USCIS’s decision

was discretionary and not predicated on legal error, and is thus immune from

review in the federal courts under 8 U.S.C. § 1252(a)(2)(B)(ii).

Ashfaque failed to plausibly allege a colorable legal or constitutional error.

The District Court’s dismissal for lack of jurisdiction is

AFFIRMED.