Jose Garcia-Aguillon v. Michael B. Mukasey ( 2008 )


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  •                     United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 07-1595
    ___________
    Jose Domingo Garcia-Aguillon,          *
    *
    Petitioner,                *
    * Petition for Review
    v.                               * of an Order of the
    * Board of Immigration Appeals.
    Michael B. Mukasey, Attorney           *
    General of the United States,          *
    *
    Respondent.                *
    ___________
    Submitted: January 17, 2008
    Filed: May 5, 2008
    ___________
    Before WOLLMAN, BRIGHT, and SMITH, Circuit Judges.
    ___________
    WOLLMAN, Circuit Judge.
    Jose Domingo Garcia-Aguillon, a citizen and native of Mexico, seeks review
    of an order of the Board of Immigration Appeals (BIA) that summarily affirmed and
    adopted the decision of an immigration judge (IJ) denying Garcia-Aguillon’s request
    for voluntary departure and ordering his removal to Mexico. We dismiss the petition
    for review for lack of jurisdiction.
    I.
    Garcia-Aguillon entered the United States without inspection on at least four
    occasions within a one-month time period. On the first three occasions, dated
    September 9, 17, and 19, 2002, immigration officials intercepted Garcia-Aguillon and
    allowed him to depart voluntarily without removal proceedings. Garcia-Aguillon’s
    October 1, 2002, entry evaded an encounter with authorities, however, and he
    remained in the United States illegally.
    The government initiated removal proceedings against Garcia-Aguillon on July
    6, 2005, after he was arrested for driving without a license and admitted that he lacked
    immigration documentation. Garcia-Aguillon’s master calendar hearing was
    continued to allow his counsel time for preparation. At the resumed hearing before
    the IJ on October 18, 2005, Garcia-Aguillon admitted all of the allegations against
    him, conceded inadmissibility, and requested a voluntary departure. The IJ reset the
    merits hearing date to November 18, 2005, to permit Garcia-Aguillon and his counsel
    to review his immigration record (Form I-213) in preparation for the hearing. At the
    merits hearing, the government did not contest that Garcia-Aguillon was statutorily
    eligible for voluntary departure, but the IJ denied Garcia-Aguillon’s request as a
    matter of discretion and ordered his removal to Mexico, finding that his repeated
    illegal entries evinced “absolutely no respect for the immigration laws of the United
    States.”
    II.
    Although we generally have jurisdiction to review final orders of removal, 8
    U.S.C. § 1252, we lack jurisdiction to review the discretionary denial of voluntary
    departure under 8 U.S.C. § 1229c. 8 U.S.C. § 1252(a)(2)(B)(i). Thus, we must
    dismiss Garcia-Aguillon’s petition for lack of jurisdiction unless a colorable
    constitutional claim or question of law is raised therein, keeping in mind that a
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    petitioner may not create jurisdiction by “‘cloaking an abuse of discretion argument
    in constitutional [or legal] garb.’” Sabhari v. Mukasey, No. 06-3483, 
    2008 WL 961167
    , at *2 (8th Cir. Apr. 10, 2008) (per curiam) (quoting Torres-Aguilar v. INS,
    
    246 F.3d 1267
    , 1271 (9th Cir. 2001)); 8 U.S.C. § (a)(2)(D); see also Barco-Sandoval
    v. Gonzales, 
    516 F.3d 35
    , 40-41 n.6 (2d Cir. 2008). To be colorable, a claim must
    have “‘some possible validity.’” Sabhari, 
    2008 WL 961167
    , at *2 (quoting Torres-
    
    Aguilar, 246 F.3d at 1271
    ); see also Arbaugh v. Y&H Corp., 
    546 U.S. 500
    , 513 n.10
    (2006) (“A claim invoking federal-question jurisdiction . . . may be dismissed for want
    of subject-matter jurisdiction if it is not colorable, i.e., if it is immaterial and made
    solely for the purpose of obtaining jurisdiction or is wholly insubstantial and
    frivolous.” (internal quotations omitted)); Finch v. Hughes Aircraft Co., 
    926 F.2d 1574
    , 1578-80 (Fed. Cir. 1991) (listing various formulations of frivolous appellate
    claims).
    In his petition for review, Garcia-Aguillon argues that the IJ incorrectly applied
    the statutory standards in denying his request for voluntary departure and that his due
    process rights were violated because he lacked notice at the time of his previous
    returns that they could be used to deny him voluntary departure in the future. We
    conclude that we lack jurisdiction to review Garcia-Aguillon’s petition because his
    arguments therein fail to present a colorable constitutional claim or question of law.
    Garcia-Aguillon’s first argument fails to state a colorable legal claim because
    it amounts to nothing more than a challenge to the IJ’s discretionary and fact-finding
    exercises cloaked as a question of law. Specifically, Garcia-Aguillon argues that the
    IJ’s consideration of the repeated illegal entries listed on his Form I-213 amounts to
    the application of the statutory standard for aliens who apply for voluntary departure
    at the end of removal proceedings under 8 U.S.C. § 1229c(b), which requires a
    showing of five years of good moral character, rather than the standard for those who
    apply before the end of proceedings under 8 U.S.C. § 1229c(a), which does not.
    Garcia-Aguillon’s statutory eligibility for voluntary departure was conceded, however,
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    and thus was not at issue during the merits hearing. The single issue to be decided
    was whether Garcia-Aguillon merited voluntary departure as a matter of discretion.
    The consideration of an alien’s “additional violations of the immigration laws . . . and
    other evidence of bad character or the undesirability of the applicant as a permanent
    resident” is clearly part of the IJ’s discretionary exercise with respect to voluntary
    departure and does not pertain to the different standards found in sections 1229c(a)
    and (b). Arguelles-Campos, 22 I. & N. Dec. 811, 817 (BIA 1999) (citing Gamboa, 14
    I. & N. 244 (BIA 1972)).
    Garcia-Aguillon’s due process argument fails to state a colorable constitutional
    claim because he clearly does not possess a constitutionally protected interest in
    discretionary relief under existing law and does not provide a reasoned argument for
    changing or distinguishing the law. Garcia-Mateo v. Keisler, 
    503 F.3d 698
    , 700 (8th
    Cir. 2007) (citing Nativi-Gomez v. Ashcroft, 
    344 F.3d 805
    , 808 (8th Cir. 2003) (no
    constitutionally protected interest in discretionary relief from removal)); De Araujo
    v. Gonzales, 
    457 F.3d 146
    , 153-55 (1st Cir. 2006) (no colorable due process claim
    when alien fails to state a protected liberty or property interest).
    The petition for review is dismissed for lack of jurisdiction.
    ______________________________
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