NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________
Nos. 09-2198 & 09-3444 ___________
VANNEY VAN, Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES, Respondent
____________________________________
On Petitions for Review of Orders of the Board of Immigration Appeals (Agency No. A027 356 788) Immigration Judge: Andrew R. Arthur ____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a) September 23, 2010
Before: SLOVITER, JORDAN and GREENBERG, Circuit Judges
(Opinion filed: September 24, 2010 )
OPINION ___________
PER CURIAM
Petitioner Vanney Van, a native and citizen of Cambodia, seeks review of final
orders issued by the Board of Immigration Appeals (“BIA”). For the reasons that follow, we will deny the petitions for review in part and dismiss them in part.
Because the parties are familiar with the background, we will present it here only
in summary. In 1984, as a young child, Van entered the United States with his family as a
refugee. In 1988, he became a lawful permanent resident (“LPR”) on account of his
refugee status, as of the date of his entry into the United States in 1984. On April 23,
1997, he was convicted after pleading guilty in Pennsylvania state court to robbery,
attempted rape, burglary, possessing instruments of crime, and criminal conspiracy. He
was sentenced to one to ten years of imprisonment, serving three years before being
released.1 In late 2007, the Department of Homeland Security (“DHS”) initiated removal
proceedings, charging Van with three aggravated felony-based grounds of removability
under 8 U.S.C. § 1227(a)(2)(A)(iii), for having been convicted of a crime of violence, a
theft offense, and attempt or conspiracy to commit an aggravated felony, pursuant to
sections 1101(a)(43)(F), (G), and (U), respectively.2 Van applied for waivers of
inadmissability under 8 U.S.C. § 1159(c) (INA § 209(c)) and former section 1182(c)
(former INA § 212(c)). He also applied for deferral of removal under the United Nations
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (“CAT”). Van testified at a hearing before the Immigration Judge (“IJ”) in
support of his applications for relief. The IJ found that Van was removable for having
1 Van committed these offenses in 1993 as a teenager but was prosecuted as an adult. 2 DHS also charged Van with removability under a fourth ground, but there were no findings made on that charge, and it is not at issue here.
2 been convicted of crimes constituting aggravated felonies as defined in 8 U.S.C.
§§ 1101(a)(43)(F), (G), and (U). The IJ also determined Van was ineligible for a waiver
under 8 U.S.C. § 1159(c), noting such waiver depends upon an application to adjust status
under section 1159(a), and that Van was no longer eligible for that adjustment because his
status already was previously adjusted, and that he was no longer a refugee. The IJ also
determined that Van was ineligible for a waiver of deportation under former INA
§ 212(c) (former 8 U.S.C. § 1182(c)) due to his criminal convictions occurring after the
effective date of the abolishment of the provision. Further, the IJ denied Van’s
application for CAT relief and ordered Van removed to Cambodia. In a decision dated
March 24, 2009, the Board of Immigration Appeals (“BIA”) affirmed the IJ’s order of
removal and dismissed Van’s appeal.
Van filed with the BIA a motion to reopen and reconsider, requesting adjustment
of status and a waiver of inadmissibility under INA § 212(h) (8 U.S.C. § 1182(h)). The
BIA denied Van’s motion, noting that it was untimely as a motion to reconsider.3
Considered as a motion to reopen, the BIA concluded that Van presented no new and
material evidence that would affect the outcome of the proceedings, citing 8 C.F.R.
§ 1003.2(c)(1), and rejected Van’s argument regarding the section 1182(h) waiver. Van
filed timely petitions for review regarding both the BIA’s decisions, and the matters have
3 The BIA cited 8 C.F.R. § 1003.2(c) in support, but the provision governing the time for filing a motion to reopen appears at 8 C.F.R. § 1003.2(b)(2).
3 been consolidated in this Court. The respondent has filed a motion to dismiss.
As the respondent argues in its motion and in its brief, we generally lack
jurisdiction to review final orders of removal against criminal aliens, like Van, who have
an aggravated felony conviction. See 8 U.S.C. § 1252(a)(2)(C). However, we may
review “constitutional claims or questions of law” raised in a petition for review. See
8 U.S.C. § 1252(a)(2)(D); Papageorgiou v. Gonzales, 413 F.3d 356, 358 (3d Cir. 2005).
Van argues that the BIA erred in its determinations of his claims concerning section
1159(c) waiver, CAT relief, and denial of the motion to reopen for consideration of a
section 1182(h) waiver.4 We will address these issues in turn.
Van contests the agency’s determination concerning his entitlement to a section
1159(c) waiver. The IJ described the section 1159 provision for refugees to adjust status
to that of LPRs, and noted that a waiver of inadmissibility under 1159(c) can be granted
when a section 1159(a) application for LPR status is pending.5 Concerning Van, the IJ
found that Van is no longer a refugee but is already an LPR, and, under the terms of the
statute, he is no longer eligible for section 1159(a) adjustment of status and thus not
4 We deem all other issues to be waived. See Lie v. Ashcroft, 396 F.3d 530, 532 n.1 (3d Cir. 2005). 5 The waiver provision of section 1159(c) is set forth as a “coordination with section 1182” (concerning inadmissible aliens), listing which provisions of section 1182 were inapplicable for aliens seeking a section 1159 adjustment of status. It also provides that, with certain exceptions not relevant here, the Secretary of Homeland Security or the Attorney General may waive the provisions of inadmissibility for humanitarian purposes or family unity reasons.
4 eligible for a section 1159(c) waiver. Van argues that he retains his status as a refugee
despite having become an LPR pursuant to section 1159(a), and that as both an LPR and a
refugee, he continues to be afforded the benefit of section 1159(c)’s provision concerning
waivers. We note that the BIA addressed this argument and stated that, even assuming
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________
Nos. 09-2198 & 09-3444 ___________
VANNEY VAN, Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES, Respondent
____________________________________
On Petitions for Review of Orders of the Board of Immigration Appeals (Agency No. A027 356 788) Immigration Judge: Andrew R. Arthur ____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a) September 23, 2010
Before: SLOVITER, JORDAN and GREENBERG, Circuit Judges
(Opinion filed: September 24, 2010 )
OPINION ___________
PER CURIAM
Petitioner Vanney Van, a native and citizen of Cambodia, seeks review of final
orders issued by the Board of Immigration Appeals (“BIA”). For the reasons that follow, we will deny the petitions for review in part and dismiss them in part.
Because the parties are familiar with the background, we will present it here only
in summary. In 1984, as a young child, Van entered the United States with his family as a
refugee. In 1988, he became a lawful permanent resident (“LPR”) on account of his
refugee status, as of the date of his entry into the United States in 1984. On April 23,
1997, he was convicted after pleading guilty in Pennsylvania state court to robbery,
attempted rape, burglary, possessing instruments of crime, and criminal conspiracy. He
was sentenced to one to ten years of imprisonment, serving three years before being
released.1 In late 2007, the Department of Homeland Security (“DHS”) initiated removal
proceedings, charging Van with three aggravated felony-based grounds of removability
under 8 U.S.C. § 1227(a)(2)(A)(iii), for having been convicted of a crime of violence, a
theft offense, and attempt or conspiracy to commit an aggravated felony, pursuant to
sections 1101(a)(43)(F), (G), and (U), respectively.2 Van applied for waivers of
inadmissability under 8 U.S.C. § 1159(c) (INA § 209(c)) and former section 1182(c)
(former INA § 212(c)). He also applied for deferral of removal under the United Nations
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (“CAT”). Van testified at a hearing before the Immigration Judge (“IJ”) in
support of his applications for relief. The IJ found that Van was removable for having
1 Van committed these offenses in 1993 as a teenager but was prosecuted as an adult. 2 DHS also charged Van with removability under a fourth ground, but there were no findings made on that charge, and it is not at issue here.
2 been convicted of crimes constituting aggravated felonies as defined in 8 U.S.C.
§§ 1101(a)(43)(F), (G), and (U). The IJ also determined Van was ineligible for a waiver
under 8 U.S.C. § 1159(c), noting such waiver depends upon an application to adjust status
under section 1159(a), and that Van was no longer eligible for that adjustment because his
status already was previously adjusted, and that he was no longer a refugee. The IJ also
determined that Van was ineligible for a waiver of deportation under former INA
§ 212(c) (former 8 U.S.C. § 1182(c)) due to his criminal convictions occurring after the
effective date of the abolishment of the provision. Further, the IJ denied Van’s
application for CAT relief and ordered Van removed to Cambodia. In a decision dated
March 24, 2009, the Board of Immigration Appeals (“BIA”) affirmed the IJ’s order of
removal and dismissed Van’s appeal.
Van filed with the BIA a motion to reopen and reconsider, requesting adjustment
of status and a waiver of inadmissibility under INA § 212(h) (8 U.S.C. § 1182(h)). The
BIA denied Van’s motion, noting that it was untimely as a motion to reconsider.3
Considered as a motion to reopen, the BIA concluded that Van presented no new and
material evidence that would affect the outcome of the proceedings, citing 8 C.F.R.
§ 1003.2(c)(1), and rejected Van’s argument regarding the section 1182(h) waiver. Van
filed timely petitions for review regarding both the BIA’s decisions, and the matters have
3 The BIA cited 8 C.F.R. § 1003.2(c) in support, but the provision governing the time for filing a motion to reopen appears at 8 C.F.R. § 1003.2(b)(2).
3 been consolidated in this Court. The respondent has filed a motion to dismiss.
As the respondent argues in its motion and in its brief, we generally lack
jurisdiction to review final orders of removal against criminal aliens, like Van, who have
an aggravated felony conviction. See 8 U.S.C. § 1252(a)(2)(C). However, we may
review “constitutional claims or questions of law” raised in a petition for review. See
8 U.S.C. § 1252(a)(2)(D); Papageorgiou v. Gonzales, 413 F.3d 356, 358 (3d Cir. 2005).
Van argues that the BIA erred in its determinations of his claims concerning section
1159(c) waiver, CAT relief, and denial of the motion to reopen for consideration of a
section 1182(h) waiver.4 We will address these issues in turn.
Van contests the agency’s determination concerning his entitlement to a section
1159(c) waiver. The IJ described the section 1159 provision for refugees to adjust status
to that of LPRs, and noted that a waiver of inadmissibility under 1159(c) can be granted
when a section 1159(a) application for LPR status is pending.5 Concerning Van, the IJ
found that Van is no longer a refugee but is already an LPR, and, under the terms of the
statute, he is no longer eligible for section 1159(a) adjustment of status and thus not
4 We deem all other issues to be waived. See Lie v. Ashcroft, 396 F.3d 530, 532 n.1 (3d Cir. 2005). 5 The waiver provision of section 1159(c) is set forth as a “coordination with section 1182” (concerning inadmissible aliens), listing which provisions of section 1182 were inapplicable for aliens seeking a section 1159 adjustment of status. It also provides that, with certain exceptions not relevant here, the Secretary of Homeland Security or the Attorney General may waive the provisions of inadmissibility for humanitarian purposes or family unity reasons.
4 eligible for a section 1159(c) waiver. Van argues that he retains his status as a refugee
despite having become an LPR pursuant to section 1159(a), and that as both an LPR and a
refugee, he continues to be afforded the benefit of section 1159(c)’s provision concerning
waivers. We note that the BIA addressed this argument and stated that, even assuming
that Van retains vestiges of his refugee status, section 1159 relief is unavailable to Van in
light of the statute’s language that adjustment of status under section 1159(a) can be
granted to an alien “who has not acquired permanent resident status.” 8 U.S.C.
§ 1159(a)(1)(C). It appears, then, that the agency’s interpretation of the statute is that a
waiver of inadmissibility of a refugee logically can occur only at the time when the alien
refugee is seeking admission for lawful permanent residence. Van does not present any
arguments that persuade us to conclude that the BIA erred in its statutory interpretation.
See Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43
(1984). See also Saintha v. Mukasey, 516 F.3d 243, 253 (4th Cir. 2008) (rejecting the
proposition that an alien refugee who has already adjusted his status to that of an LPR
may still apply for a section 1159(c) waiver as a refugee).6
6 The BIA further concluded that it lacked jurisdiction to consider Van’s request for a section 1159(c) waiver, given that DHS has original jurisdiction over section 1159 applications for relief, and if denied, the application for adjustment of status (and presumably, any waiver request) is renewable in removal proceedings. See 8 C.F.R. § 1209.1(e). The respondent argues that Van’s failure to address this specific conclusion is fatal to his claim. However, because the BIA’s conclusion about its jurisdiction over a section 1159(c) waiver request is intertwined with its interpretation of section 1159, we do not conclude that Van has waived consideration of the section 1159(c) waiver issue.
5 Van nevertheless argues that he should be afforded the rights and protections of a
refugee and be eligible for a section 1159(c) waiver, stating that if refugee status were
lost upon adjustment to LPR status, “he would become subject to removal pursuant to
INA § 237 [8 U.S.C. § 1227], and deemed a ‘deportable alien.’” Pet’r Br. at 16-17.
Although Van does not directly dispute that he is removable on the basis of his
aggravated felony convictions, we note that it is settled law that an alien admitted as a
refugee and adjusted to LPR status is indeed subject to removal proceedings for having
committed an aggravated felony, even though his refugee status was never terminated.
See Romanishyn v. Attorney General, 455 F.3d 175, 185 (3d Cir. 2006). Van is, in fact, a
deportable alien, regardless of his arrival in the United States as a refugee. We are
unpersuaded by Van’s argument on this point.
Van next argues that he is eligible for CAT relief and that the BIA committed error
in denying his claim. However, he does not raise any constitutional claims or questions
of law on this issue. Van’s arguments concern whether the BIA decision is supported by
substantial evidence in the record. As noted earlier, because Van has aggravated felony
convictions, that issue is outside of our jurisdiction and will be dismissed.
We now turn to Van’s argument concerning his claim for relief under section
1182(h), which he presented in his motion to reopen or reconsider. We review the
decision to deny a motion to reopen or to reconsider under an abuse of discretion
standard. See Borges v. Gonzales, 402 F.3d 398, 404 (3d Cir. 2005). Under that
6 standard, the BIA’s decision may be reversed only if it is “arbitrary, irrational, or contrary
to law.” Id. (citing Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004)). Van argues this
issue as a legal matter concerning eligibility under the terms of the statute and under the
Fifth Circuit’s decision in Martinez v. Mukasey, 519 F.3d 532 (5th Cir. 2008). However,
we agree with the respondent’s position that Van does not challenge the bases of the
BIA’s denial of the motion, namely, that the motion was untimely as a motion to
reconsider, and that Van provided no new and material evidence that would have affected
the outcome of the prior proceedings. See 8 C.F.R. § 1003.2(c)(1). Van has not shown
that the BIA’s denial of the motion on these bases was arbitrary, irrational, or contrary to
law.
We will deny the petitions for review in part and dismiss them in part. The
respondent’s motion to dismiss is granted in part and denied in part.