Galvan v. Winfrey , 181 F. App'x 428 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 12, 2006
Charles R. Fulbruge III
Clerk
No. 04-41624
Summary Calendar
ISMAEL GALVAN,
Petitioner-Appellant,
versus
A. G. WINFREY, Interim Field Office Director, DHS HLG/DO;
UNITED STATES OF AMERICA,
Respondents-Appellees.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:03-CV-213
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Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Petitioner-Appellant Ismael Galvan challenges the district
court’s denial of his petition for habeas corpus, contending that
he is entitled to a discretionary waiver of admissibility under
former Immigration and Nationality Act § 212(c). The parties
dispute whether we should treat this case as an appeal of the
denial of a habeas corpus petition under 28 U.S.C. § 2241 or a
petition for review under the REAL ID Act of 2005, Pub. L. No.
109-13, 119 Stat. 231 (May 11, 2005). Although Congress was
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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silent as to the effect of the Real ID Act on § 2241 cases
pending on appeal, we have held that habeas petitions on appeal
on May 11, 2005, the REAL ID Act’s effective date, “are properly
converted into petitions for review.” Rosales v. Bureau of
Immigration & Customs Enforcement, 426 F.3d 733, 736 (5th Cir.
2005), cert. denied, 126 S. Ct. 1055 (2006). Accordingly, we
will treat Galvan’s appeal as a petition for review.
The parties also dispute whether we can consider only the
Board of Immigration Appeals (BIA) decision or the decisions of
the immigration judge (IJ) and BIA. This court generally has the
authority to review only decisions of the BIA, not decisions of
an IJ. See Alarcon-Chavez v. Gonzales, 403 F.3d 343, 345 (5th
Cir. 2005). However, this court may review an IJ’s decision if
that decision had some impact on the BIA’s decision. Mikhael v.
INS, 115 F.3d 299, 302 (5th Cir. 1997).
In dismissing Galvan’s appeal and affirming the IJ’s
decision, the BIA expressly, though succinctly, noted that the IJ
had taken into account the positive and negative equities and
made no clear error in his various factual conclusions. Because
the BIA relied, at least in part, on the IJ’s decision, we will
consider both the IJ’s and the BIA’s decisions. Mikhael, 115
F.3d at 302.
Galvan raises four claims: (1) the BIA failed to issue a
sufficiently reasoned decision that addressed the legal and
factual issues which he raised; (2) the BIA’s decision violated
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its regulations and did not satisfy Galvan’s due process rights;
(3) Galvan was substantially prejudiced by the BIA’s failures;
and (4) his appeal should have been referred to a three-member
panel.
Alleged Inadequacy of the BIA’s Decision
Galvan alleges that the BIA failed to issue a sufficiently
reasoned decision that addressed the legal and factual issues
which he raised. In part, he bases this claim on assertions that
this court can consider only the BIA’s decision and that the
BIA’s decision standing alone fails to provide an adequate basis
for this court to review the BIA’s legal and factual conclusions.
As noted above, this court can consider the decisions of the
IJ and BIA in this petition for review. See Mikhael, 115 F.3d at
302. The BIA’s decision, while succinct, agreed with the IJ’s
extensive factual analysis and legal conclusions. The IJ
considered Galvan’s factual and legal arguments and, in
compliance with BIA precedent, weighed the positive and negative
equities. Because there is substantial evidence in the record to
support the IJ’s and BIA’s conclusions, Galvan’s contention that
the BIA’s decision was inadequate is unavailing. See Chun v.
INS, 40 F.3d 76, 78 (5th Cir. 1994).
Alleged Violations of BIA Regulations and Galvan’s Due
Process Rights
Galvan contends that the BIA abused its discretion when it
considered non-record factors, its workload and litigation
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priorities. This court has rejected similar arguments. See
Soadjede v. Ashcroft, 324 F.3d 830, 832-33 (5th Cir. 2003).
Galvan also asserts that the BIA failed to give meaningful
consideration to the substantial evidence in favor of his claim
and violated Galvan’s due process rights by failing to engage in
de novo review of the IJ’s legal conclusions and application of
pertinent standards. The BIA did not violate Galvan’s due
process rights by relying on the reasons set forth by the IJ.
Soadjede, 324 F.3d at 832-33.
As noted above, the IJ considered the positive and negative
equities as required by BIA precedent, including Galvan’s claim
of rehabilitation and the evidence opposed to this claim. After
doing so, the IJ found that Galvan failed to carry his burden of
showing he was entitled to § 212(c) relief. Because there is no
evidence in the record which compels a contrary conclusion, the
BIA did not abuse its discretion when it affirmed the IJ’s
decision. Chun, 40 F.3d at 78.
Galvan also contends that the BIA abused its discretion by
denying his unopposed motion to remand. The BIA routinely treats
motions to remand as motions to reopen. See Ogbemudia v. INS,
988 F.2d 595, 599-600 (5th Cir. 1993); Matter of Coelho, 20
I. & N. Dec. 464, 471 (BIA 1992). The BIA applies the same
standards to a motion to remand as it does to a motion to reopen,
and this court reviews both motions for an abuse of discretion.
Ogbemudia, 988 F.2d at 600.
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The BIA must deny a motion to reopen if it finds that the
movant has not introduced previously unavailable, material
evidence or if the movant has not established a prima facie case
for the underlying substantive relief sought. Ogbemudia, 988
F.2d at 599-600. Further, even if a movant establishes those
threshold requirements, the BIA may deny a motion to reopen if it
determines that “the movant would not be entitled to the
discretionary grant of relief.” Id. at 600 (internal quotation
marks and citation omitted).
The BIA did not abuse its discretion in denying Galvan’s
motion to remand. The IJ stated that his decision would not be
affected even if Galvan’s 1990 conviction had been lowered to a
misdemeanor. Further, the IJ based his decision that Galvan
failed to establish his rehabilitation, in part, on Galvan’s use
of cocaine in relation to the 2001 conviction. Thus, Galvan was
not entitled to a remand based on his “new” evidence related to
his 1990 and 2001 convictions, and the BIA did not err when it
failed to order a remand or to address the motion to remand. Roy
v. Ashcroft, 389 F.3d 132, 139-40 (5th Cir. 2004); Ogbemudia, 988
F.2d at 599-600.
Alleged Need for Referral to a Three-Member Panel
Galvan contends that, under 8 C.F.R. § 1003.1(e)(6)(iii),
(v), (vi), a three-member panel was required to hear his appeal
to the BIA. The immigration regulations state that, “[u]nless a
case meets the standards for assignment to a three-member panel
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under paragraph (e)(6) of this section, all cases shall be
assigned to a single Board member for disposition.” 8 C.F.R.
§ 1003.1(e). A three-member panel is appropriate only if there
is a need “to review a decision by an immigration judge . . .
that is not in conformity with the law or with applicable
precedents,” “to review a clearly erroneous factual determination
by an immigration judge,” or “to reverse the decision of an
immigration judge or the Service, other than a reversal under
§ 1003.1(e)(5).” § 1003.1(e)(6)(iii), (v), (vi).
Galvan has not established that the IJ’s and BIA’s decisions
did not comply with the law or BIA precedent. Similarly, he has
not proven that the BIA’s or IJ’s decisions were based on clearly
erroneous factual findings. Finally, Galvan has not established
any other reasons that would require the BIA to reverse the IJ’s
decision. Accordingly, the BIA did not abuse its discretion when
it failed to refer Galvan’s appeal to a three-member panel.
Alleged Prejudice
Galvan argues that he was substantially prejudiced by the
BIA’s failure to comply with its regulations and issue a
sufficiently reasoned decision that addressed his factual and
legal issues. The decisions issued by the IJ and BIA
sufficiently evaluated Galvan’s factual and legal claims, and
Galvan failed to establish that the BIA did not comply with its
regulations. Because the IJ’s and BIA’s decisions complied with
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BIA regulations, due process requirements, and this court’s
precedent, Galvan’s claim of prejudice is unavailing.
Accordingly, Galvan’s petition for review is DENIED.