Takhir Khaytekov v. William P. Barr

• Court: Court of Appeals for the Sixth Circuit
• Decided: December 16, 2019
• Docket: 19-3149
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 19a0619n.06

Case No. 19-3149

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

FILED TAKHIR ASHIROVICH KHAYTEKOV, ) Dec 16, 2019 ) DEBORAH S. HUNT, Clerk Petitioner, ) ) ON PETITION FOR REVIEW v. ) FROM THE UNITED STATES ) BOARD OF IMMIGRATION AP- WILLIAM P. BARR, Attorney General, ) PEALS ) Respondent. )

BEFORE: COLE, Chief Judge; SILER and MURPHY, Circuit Judges.

MURPHY, Circuit Judge. In 2001, Takhir Ashirovich Khaytekov came to the United

States from Uzbekistan on a temporary visa lasting six months. He never left. Six years later,

authorities caught wind of his unauthorized presence and started proceedings to remove him. See

8 U.S.C. § 1227(a)(1)(B). In response, Khaytekov initially applied for asylum. After he married

a U.S. citizen, he withdrew his asylum application and substituted an application asking for an

adjustment of his status to that of a lawful permanent resident. See id. § 1255(a)

Khaytekov’s misrepresentations derailed his adjustment-of-status application, as an immi-

gration judge found that he lied about many things during his immigration proceedings. To stay

in this country, for example, Khaytekov falsely claimed in his asylum application that he had been

“brutally attacked” by “nationalist and fascist” groups in Uzbekistan. According to the judge, Case No. 19-3149, Khaytekov v. Barr

Khaytekov’s lies rendered him inadmissible under 8 U.S.C. § 1182(a)(6)(C)(i), which, in turn,

made him ineligible for adjustment of status under § 1255(a). Even if Khaytekov were eligible for

adjustment of status, the judge continued, he would not merit that discretionary relief because the

negative aspects of his case (his lies) outweighed any positive aspects.

Found inadmissible under § 1182(a)(6)(C), Khaytekov applied for a waiver of inadmissi-

bility under § 1182(i)(1). The waiver would allow him to seek adjustment of status despite his lies

if he could prove that his removal would cause his wife Angela “extreme hardship.” Khaytekov

argued she would suffer such hardship because she is disabled and he is her sole caregiver. The

judge denied this waiver request on three grounds. Ground One: The judge found that Khaytekov

had knowingly filed a frivolous asylum application, which rendered him “permanently ineligible”

for benefits like an inadmissibility waiver. Id. § 1158(d)(6). Ground Two: The judge found that

Khaytekov did not prove his eligibility for the waiver because he had not shown that his removal

would cause Angela extreme hardship. To reach this result, the judge questioned whether Angela

was truly disabled because her social-security application for disability benefits had been denied.

Ground Three: The judge found that, even if Khaytekov were eligible for a waiver under

§ 1182(i)(1), his case did not warrant a favorable exercise of discretion. The judge again relied on

Khaytekov’s lies, describing him as “one of the most remarkably and demonstrably dishonest peo-

ple with whom this Court has dealt in well over 30 years of experience on the bench.”

Khaytekov appealed to the Board of Immigration Appeals. During the appeal he filed

several motions, including a motion to remand for the immigration judge to consider new evidence

showing that Angela had procured disability benefits; a motion to have a three-member panel de-

cide his appeal; and a motion for cancellation of removal. The Board dismissed the appeal and

denied the motions. It upheld the finding that Khaytekov had filed a frivolous asylum application,

2 Case No. 19-3149, Khaytekov v. Barr

which barred him from seeking an inadmissibility waiver under § 1182(i)(1). It also held that

Khaytekov would not have been entitled to a waiver in any event. When doing so, the Board

acknowledged Khaytekov’s new evidence about his wife’s disability benefits and so did not rely

on the immigration judge’s lack-of-hardship finding. Rather, the Board concluded that, even ac-

counting for Angela’s disability, Khaytekov did not merit a waiver when balancing the negative

and positive aspects of his case.

In this court, Khaytekov alleges that the Board erred in the following ways: (1) by denying

his motion to remand based on his new evidence; (2) by refusing to impanel a three-member panel;

(3) by denying his motion to remand so that he could apply for cancellation of removal; and (4) by

upholding the findings that he had filed a frivolous asylum application and was not credible.

1. Motion to Remand for New Evidence. Khaytekov moved the Board to remand so that

the immigration judge could reconsider his request for an inadmissibility waiver under § 1182(i)(1)

in light of new evidence (Angela’s approval for disability benefits). We lack jurisdiction over this

argument, but the reason why is quite complex.

Start with the jurisdictional basics. Congress has stripped courts of jurisdiction to consider

many discretionary rulings of the Board of Immigration Appeals. E.g., 8 U.S.C. § 1252(a)(2)(B).

Two provisions bar courts from reviewing a decision denying the relief that Khaytekov seeks: a

waiver of inadmissibility under § 1182(i)(1). Section 1252(a)(2)(B)(i) says that “no court shall

have jurisdiction to review” “any judgment regarding the granting of relief under,” among other

sections, § 1182(i). Section 1182(i)(2) adds: “No court shall have jurisdiction to review a decision

or action of the Attorney General regarding a waiver under paragraph (1).” These carveouts to our

jurisdiction come with their own carveout: Congress clarified that courts retain jurisdiction to re-

view “constitutional claims or questions of law” that the Board answers when deciding issues

3 Case No. 19-3149, Khaytekov v. Barr

covered by a jurisdictional bar. Id. § 1252(a)(2)(D). Under this framework, we would lack juris-

diction if Khaytekov had sought our review of the Board’s discretionary balancing of the positive

and negative aspects of his case or of any decision that he failed to establish hardship. Neither

decision qualifies as a “question of law” under § 1252(a)(2)(D) and so both are subject to the

jurisdictional bar. See, e.g., Ettienne v. Holder, 659 F.3d 513, 517–19 (6th Cir. 2011) (hardship);

Addo v. Mukasey, 267 F. App’x 442, 448–49 (6th Cir. 2008) (balancing); see also Cospito v. Att’y

Gen. of U.S., 539 F.3d 166, 170–71 (3d Cir. 2008).

Yet this petition presents a procedural twist. Khaytekov does not seek review of the denial

of a waiver under § 1182(i)(1); he seeks review of the denial of a motion to remand. Federal courts

have long treated those motions (which are filed before the Board’s decision) like motions to reo-

pen (which are filed after the Board’s decision). Hernandez-Perez v. Whitaker, 911 F.3d 305, 315

n.4 (6th Cir. 2018); Pilica v. Ashcroft, 388 F.3d 941, 945 n.3 (6th Cir. 2004); see 8 C.F.R.

§ 1003.2(c)(4). And a court has jurisdiction to review the Board’s denial of a motion to reopen if

the court would have jurisdiction over the underlying issue that an immigrant seeks to raise in that

motion. Kucana v. Holder, 558 U.S. 233, 252–53 (2010). But what “if the court would lack

jurisdiction over the . . . underlying” issue that an immigrant seeks to press? Id. at 250 n.17. The

Supreme Court has reserved that jurisdictional question. Id.

We have answered the question for other Board actions that, like the denial of a waiver

under § 1182(i), are subject to § 1252(a)(2)(B)(i). Hernandez-Perez, 911 F.3d at 315–16; Pilica,

388 F.3d at 945–48. For example, the denial of adjustment of status under § 1255(a) normally

triggers that jurisdictional bar. And Pilica considered whether we had jurisdiction over the Board’s

denial of a motion to remand to allow an immigrant to apply for adjustment of status. 388 F.3d at

945–46. We started with the statutory text, recognizing that “[t]he question is whether the denial

4 Case No. 19-3149, Khaytekov v. Barr

of the motion to remand was a judgment ‘regarding the granting of relief’ under” the adjustment-

of-status statute. Id. (quoting 8 U.S.C. § 1252(a)(2)(B)(i)). We then held that a motion to remand

“that does not involve the consideration of relief on the merits should not be treated as ‘regarding’

the granting of relief” for purposes of § 1252(a)(2)(B)(i)’s text. Id. at 948. If, by contrast, the

Board denied a motion to remand (or reopen) on merits grounds—because, for example, new evi-

dence still did not show the required hardship for discretionary relief—Pilica suggested that we

would lack jurisdiction. Id. at 947–48 (discussing Rodriguez v. Ashcroft, 253 F.3d 797, 800 (5th

Cir. 2001)). Ultimately, Pilica held that we had jurisdiction because the immigrant in that case

sought only an opportunity to apply for adjustment of status and there was no indication that the

Board’s unexplained denial of the motion rested on the merits of the immigrant’s adjustment-of-

status claim. Id. at 945, 948.

Hernandez-Perez clarified how Pilica applies when an immigrant seeks to remand (or re-

open) a previously denied claim based on new evidence. 911 F.3d at 316. There, the Board denied

an application for cancellation of removal under 8 U.S.C. § 1229b because the immigrant had not

shown that his removal would cause extreme hardship to his daughter, a decision also triggering

§ 1252(a)(2)(B)(i)’s jurisdictional bar. Hernandez-Perez, 911 F.3d at 309–10. The immigrant

then filed a motion to reopen with new evidence of hardship to his son, but the Board found that

this new evidence “did not establish prima facie eligibility for cancellation of removal.” Id. at 310.

Despite that quasi-merits ruling, Hernandez-Perez held that we had jurisdiction to consider the

denial. Id. at 315–16. We adopted the rule that courts “lack jurisdiction to review the denial of a

motion to reopen or remand in a cancellation of removal case, unless the motion raised a new

hardship ground not decided in the original decision.” Id. at 316 (quoting Ortiz-Cervantes v.

Holder, 596 F. App’x 429, 432 (6th Cir. 2015)). And the motion in Hernandez-Perez relied on a

5 Case No. 19-3149, Khaytekov v. Barr

new hardship ground (harm to the immigrant’s son) different from the ground asserted in the orig-

inal application (harm to the immigrant’s daughter). Id.

While we found that we had jurisdiction in these two cases, their logic shows that we lack

jurisdiction to review the denial of Khaytekov’s motion to remand. Initially, though, we reserve

one question about whether these cases apply here. To be sure, this case triggers the jurisdictional

bar that Pilica and Hernandez-Perez interpreted (§ 1252(a)(2)(B)(i)) because that provision refers

to inadmissibility waivers under § 1182(i)(1) too. But this case also triggers another jurisdictional

bar (§ 1182(i)(2)) that uses different language. Pilica reasoned that § 1252(a)(2)(B)(i) did not

preclude review of non-merits denials of motions to reopen or remand because its text refers to the

merits by prohibiting our review of “any judgment regarding the granting of relief” under the iden-

tified sections. 8 U.S.C. § 1252(a)(2)(B)(i) (emphasis added); Pilica, 388 F.3d at 948. Section

1182(i)(2), by contrast, precludes review over “a decision or action of the Attorney General re-

garding a waiver under” § 1182(i)(1). 8 U.S.C. § 1182(i)(2) (emphasis added).

We need not decide whether this difference in language compels a different test because

we lack jurisdiction even under Pilica and Hernandez-Perez. To begin with, the Board’s decision

“involve[d] the consideration of relief on the merits” of Khaytekov’s waiver claim. Pilica, 388

F.3d at 948. Khaytekov’s motion to remand sought to use new evidence about Angela’s disability

to overturn the immigration judge’s decision that he had not shown the “extreme hardship” that

§ 1182(i)(1) requires. The Board acknowledged this new evidence in a footnote, but denied relief

because Khaytekov was still not entitled to a waiver under the Board’s discretionary balancing of

positive and negative factors. We lack jurisdiction over such a merits-based discretionary balanc-

ing—whether undertaken for the initial appeal or for a motion to remand. See Addo, 267 F. App’x

at 448–49. The opposite rule would allow immigrants to “make an end-run around the bar to

6 Case No. 19-3149, Khaytekov v. Barr

review” of the Board’s discretionary denials simply by saving some new evidence for a motion to

reopen or remand. Ortiz-Cervantes, 596 F. App’x at 433 (citation omitted).

Nor does Hernandez-Perez help Khaytekov. Both cancellation of removal (in Hernandez-

Perez) and a waiver of inadmissibility (in this case) are discretionary forms of relief that require

an immigrant to show that removal will cause extreme hardship to a family member. Compare

8 U.S.C. § 1229b(b)(1)(D), with id. § 1182(i). But, unlike the immigrant in Hernandez-Perez,

Khaytekov moved the Board to remand on the same hardship ground (his wife’s disability) that he

asserted in his original application. His motion does not address a ground “so distinct from that

considered previously as to make the motion . . . a request for new relief, rather than for reconsid-

eration of a prior denial.” Hernandez-Perez, 911 F.3d at 316 (citation omitted).

In sum, whether analyzed under § 1182(i)(2) or under § 1252(a)(2)(B)(i), we lack jurisdic-

tion to review the denial of Khaytekov’s motion to remand.

2. Motion for Three-Member Panel. Khaytekov next claims that the Board wrongly refused

to appoint a three-member panel to decide his appeal. We have jurisdiction to review the Board’s

decision to decide an appeal with one member rather than a three-member panel. Gafurova v.

Whitaker, 911 F.3d 321, 330–31 (6th Cir. 2018). But Gafurova forecloses Khaytekov’s claim.

Under regulations governing Board procedure, cases “may only be assigned for review by a three-

member panel” in certain settings. 8 C.F.R. § 1003.1(e)(6). These regulations, by contrast, place

no limits on a single member deciding an appeal. This dichotomy led Gafurova to hold that a

“single-member assignment may be made for any stated reason” or “for no stated reason at all.”

911 F.3d at 331. We thus found that the Board did not abuse its discretion when it denied a request

for a three-member panel without explanation. Id. So too here. As in Gafurova, the Board sum-

marily denied a request for a three-member panel. “Despite the lack of any explanation . . . the

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Board did not abuse its discretion because its assignment of a single member was consistent with

the requirements of its internal operating rules.” Id.

3. Motion to Remand to Apply for Cancellation of Removal. Khaytekov also challenges

the Board’s denial of his motion to remand to allow him to apply for cancellation of removal under

8 U.S.C. § 1229b(b). While a denial of cancellation of removal falls within § 1252(a)(2)(B)(i)’s

jurisdictional bar, Pilica suggests that we would have jurisdiction over the denial of a motion to

remand that seeks to raise a previously unavailable claim for relief. 388 F.3d at 945–48. Regard-

less, Khaytekov raises a pure question of law, so we have jurisdiction to review his claim under

8 U.S.C. § 1252(a)(2)(D).

At the outset, Khaytekov correctly notes that the Board mistakenly suggested that he did

not, in fact, seek cancellation of removal. “But even when the agency’s reasoning was inadequate,

its decision may be upheld on the basis of harmless error if the petitioner’s prospects are otherwise

so weak that there is no ‘reason to believe that . . . remand might lead to a different result.’”

Japarkulova v. Holder, 615 F.3d 696, 701 (6th Cir. 2010) (citation omitted). In this case, we have

already rejected the precise legal argument that Khaytekov raises to assert that he is eligible for

cancellation of removal. So a remand on this issue would serve no purpose.

To be eligible for cancellation of removal, an immigrant must be “physically present in the

United States for a continuous period of not less than 10 years immediately preceding the date of”

the application for relief. 8 U.S.C. § 1229b(b)(1)(A). Under what is known as the “stop-time”

rule, an immigrant must have satisfied this 10-year requirement by the time the government serves

the immigrant with a valid “notice to appear.” Id. § 1229b(d)(1). A different section states that a

“notice to appear” should include “[t]he time and place at which [removal] proceedings will be

held.” Id. § 1229(a)(1)(G)(i). Pereira v. Sessions, 138 S. Ct. 2105 (2018), held that a notice to

8 Case No. 19-3149, Khaytekov v. Barr

appear that does not include this information does not suffice to trigger the “stop-time” rule. Id.

at 2110. The initial notice sent to Khaytekov had the same defect identified in Pereira. But before

Khaytekov had been in the United States for 10 years, the government sent a second notice telling

him of the time and place of his removal proceedings. He thus would be ineligible for cancellation

of removal if the combination of the two notices triggered the stop-time rule. Khaytekov responds

that, under the statutory scheme, the government cannot trigger the stop-time rule in this “multi-

notice” fashion.

Unfortunately for Khaytekov, we rejected this argument after he filed his opening brief.

Garcia-Romo v. Barr, 940 F.3d 192, 199–203 (6th Cir. 2019). Garcia-Romo held that the govern-

ment can trigger the stop-time rule by sending a follow-up communication with information miss-

ing from an original notice. Id. Khaytekov’s reply brief candidly admits that Garcia-Romo fore-

closes his argument before this panel. Because he was not present in this country for 10 years at

the time of the second notice, he is not eligible to seek cancellation of removal.

4. Frivolousness and Credibility Findings. Khaytekov lastly challenges the Board’s find-

ings that he filed a frivolous asylum application and was not credible. Even if we had jurisdiction

under 8 U.S.C. § 1252(a)(2)(D) to consider his arguments, we need not address them. As noted,

we lack jurisdiction to review the Board’s denial of Khaytekov’s request for a waiver of inadmis-

sibility based on its discretionary balancing of the negative and positive aspects of his case. Addo,

267 F. App’x at 448–49. That balancing would doom Khaytekov’s requests for relief even if we

reversed the Board’s separate findings that he filed a frivolous asylum application and was not

credible. Any reversal of those findings thus would not change the outcome of Khaytekov’s ap-

plications for adjustment of status and a waiver of inadmissibility. So we need not reach these

issues because they are “not necessary for our disposition of the petition.” Dealmonte-Castillo v.

9 Case No. 19-3149, Khaytekov v. Barr

Sessions, 737 F. App’x 282, 285 (6th Cir. 2018); see also Dinou v. U.S. Att’y Gen., 451 F. App’x

840, 842 n.3 (11th Cir. 2012); Ozdemir v. INS, 46 F.3d 6, 8 (5th Cir. 1994).

All told, we dismiss Khaytekov’s petition in part and deny it in part.