Glen Nazim Khan v. U.S. Attorney General , 216 F. App'x 900 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
FEBRUARY 7, 2007
Nos. 05-16744; 06-11377 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA No. A37-591-546
GLEN NAZIM KHAN,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petitions for Review of a Decision of the
Board of Immigration Appeals
_________________________
(February 7, 2007)
Before BLACK, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Glen Nazim Khan, a native and a citizen of Trinidad and Tobago, petitions
this Court for review of two decisions of the Board of Immigration Appeals
(“BIA”). Khan appeals the BIA’s decision to deny his request for a waiver of
inadmissibility and order of removal. Khan also appeals the BIA’s decision to
deny his motion for reconsideration, and Khan’s appeal from this decision has been
consolidated with his original petition for review.
BACKGROUND
Khan was admitted to the United States as an immigrant on January 7, 1982.
On August 26, 1991, Khan pled guilty and was convicted of manslaughter with a
deadly weapon - a pistol, for which he received a term of imprisonment of fifteen
years followed by five years probation. The Immigration and Naturalization
Service (“INS”), now the Department of Homeland Security (“DHS”), issued Khan
a Notice to Appear, charging him with removal for having been convicted of an
aggravated felony, at any time after admission, in violation of INA
§ 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), and for, at any time after
admission, having been convicted “under any law of purchasing, selling, offering
for sale, exchanging, using, owning, possessing, or carrying a firearm,” in violation
of INA § 237(a)(2)(C), 8 U.S.C. § 1227(a)(2)(C). Khan filed for a waiver of
inadmissibility pursuant to former section INA § 212(c), 8 U.S.C. § 1182(c).1
1
Under INA § 212(c), the Attorney General, or one of his representatives, could waive
the deportation of an admittedly deportable alien based upon various equitable considerations.
See 8 U.S.C. § 1182(c) (repealed 1996) (requiring that the alien be a lawful permanent resident
2
At his initial hearing, the Immigration Judge (“IJ”) asked Khan if he had
“ever been convicted . . . of manslaughter with a deadly weapon in case number
912404." Khan replied that “[w]ith all due respect, I think if I answer, I’ll be a
witness against myself.” The government informed the IJ that the court had
certified copies of the conviction. At a later hearing on his application for a
waiver, Khan testified extensively to the details surrounding his arrest for second
degree murder and ultimate guilty plea to manslaughter with a deadly weapon.
The IJ found Khan subject to removal from the United States and denied Khan a
waiver of inadmissibility based on the IJ’s discretion after balancing the equities of
the facts in Khan’s case. The BIA adopted the IJ’s decision and affirmed. Khan
filed a petition for review in this Court and also filed a motion to reconsider with
the BIA. Khan argues that the BIA committed reversible error by failing to both
properly analyze the equities in his case and explain why the equities in his favor
were not considered unusual or outstanding. Khan also argues that the BIA
committed reversible error by improperly imposing a requirement that Khan waive
and have domiciled in the United States for seven continuous years to be eligible for a
discretionary waiver).
In INS v. St. Cyr, 533 U.S. 289, 326, 121 S. Ct. 2271, 2293, 150 L. Ed. 2d 347 (2001), the
United States Supreme Court held that even though § 212(c) had been repealed by the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), relief remained
available to aliens “whose convictions were obtained through plea agreements and who,
notwithstanding those convictions, would have been eligible for 212(c) relief at the time of their
plea under the law then in effect.” As Khan pled guilty to manslaughter with a deadly weapon in
1991 and served less than five years in prison, he was eligible for relief under the former §
212(c). See Del Pilar v. U.S. Att’y Gen., 326 F.3d 1154, 1156 n.1 (11th Cir. 2003) (per curiam).
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his right to remain silent under the Fifth Amendment in order to obtain
discretionary relief under § 212(c). Khan raises no arguments in his brief as to the
BIA’s denial of his motion for reconsideration. Accordingly, he has abandoned
any arguments on this issue. Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228-29
n.2 (11th Cir. 2005) (per curiam) (stating that when an appellant fails to raise an
argument on an issue, that issue is deemed abandoned).
JURISDICTION
Before reaching the merits of Khan’s petition, we must first consider
whether we have subject matter jurisdiction. “We review subject matter
jurisdiction de novo.” Garcia v. Att’y Gen., 329 F.3d 1217, 1220 (11th Cir. 2001)
(per curiam). Under the Immigration and Nationality Act, we lack jurisdiction to
review the final removal order of an alien who is removable for having committed
an aggravated felony. See INA § 242(a)(2)(C), 8 U.S.C. § 1252(a)(2)(C); INA §
237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii). The term “aggravated felony”
includes “a crime of violence . . . for which the term of imprisonment [is] at least
one year.” INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F). Our jurisdiction is
limited only to the threshold issues of whether Khan is “(1) an alien (2) who is
removable (3) because he committed a criminal offense enumerated in the statute.”
Resendiz-Alcaraz v. U.S. Att’y Gen., 383 F.3d 1262, 1266 (11th Cir. 2004). If
these conditions are met, we are divested of jurisdiction to review the deportation
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order. See Tovar-Alvarez v. Att’y Gen., 427 F.3d 1350, 1352 (11th Cir. 2005) (per
curiam).
Khan was ordered removed based on his aggravated felony conviction.
Khan does not challenge that he is removable based on his conviction. Khan
challenges the order based on the discretion afforded the BIA in considering
whether an alien is eligible for relief from deportation under § 212(c). We do not
have jurisdiction over “any other decision or action of the Attorney General or the
Secretary of Homeland Security the authority for which is specified . . . to be in the
discretion of the Attorney General or Secretary of Homeland Security. . . .” INA
§ 242(a)(2)(B)(ii), 8 U.S.C. § 1252(a)(2)(B)(ii). Relief from removal pursuant to
the former INA § 212(c) is discretionary. 8 U.S.C. § 1182 (repealed 1996).
Therefore, we lack jurisdiction over this part of Khan’s appeal.
However, Khan alleges that the BIA violated his Fifth Amendment right
against self-incrimination. We retain jurisdiction to review substantial
constitutional claims or questions of law arising out of removal proceedings. See
INA § 242(a)(2)(D), 8 U.S.C. § 1252 (a)(2)(D); Farquharson v. U.S. Att’y Gen.,
246 F.3d 1317, 1322 (11th Cir. 2001).
SUBSTANTIAL CONSTITUTIONAL ISSUES
Khan argues that the IJ and the BIA constitutionally erred by requiring that
Khan waive his Fifth Amendment right against self-incrimination before he could
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argue for relief under § 212(c). At his initial hearing, the IJ asked Khan if he had
even been convicted of manslaughter, and Khan chose not to answer. The IJ
ultimately sustained Khan’s judgment and conviction for manslaughter based on
the admission of certified copies of the judgment. In seeking a waiver pursuant to
§ 212(c), Khan discussed, at length, the details surrounding the incident that led to
his plea and conviction. Khan first raised his Fifth Amendment claim in this
petition for review. We have interpreted the exhaustion requirement of INA §
242(d)(1), 8 U.S.C. § 1252(d)(1), to preclude jurisdiction over claims that have not
been raised before the BIA. Sundar v. INS, 328 F.3d 1320, 1323-25 (11th Cir.
2003). Constitutional challenges, and some due process challenges, do not require
exhaustion because the BIA does not have the authority to adjudicate those claims.
Id. at 1325. However, where the BIA can provide a remedy to the constitutional
claim, “the exhaustion requirement applies with full force.” Id. If Khan had raised
the issue before the BIA, it would have been within the authority of the BIA to
determine whether the IJ had required Khan to waive his right against self-
incrimination before allowing Khan to proceed with his waiver argument.
Furthermore, the BIA would also have had the authority to determine whether the
IJ impermissibly placed excessive weight on Khan’s silence relative to the
testimony and evidence he provided. Since Khan did not allege that the IJ violated
his Fifth Amendment rights as part of his appeal before the BIA, we dismiss his
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petition for failure to exhaust his administrative remedies.2
Even if Khan had not failed to exhaust his administrative remedies, his Fifth
Amendment claim is without merit. There is no evidence the IJ or BIA required
that Khan waive his right against self-incrimination before allowing him to argue
for a waiver of inadmissability. The record shows that the IJ and the BIA had
extensive testimony and evidentiary submissions with which to conclude that the
reasons for removing Khan outweighed the equities in favor of him remaining in
the country. Therefore, Khan has failed to raise a substantial constitutional
argument that affects our limited jurisdiction to review the BIA’s deportation
order.
Accordingly, the petition is dismissed.
PETITION DISMISSED.
2
In his reply brief, Khan argues that he has raised a substantial question of law, which is
whether the IJ impermissibly used Khan’s decision to remain silent as the major reason for
denying his waiver of inadmissibility and ordering his removal. This argument is without merit.
First, the invocation of a person’s Fifth Amendment right against self-incrimination in a removal
proceeding may be the basis of an adverse inference. INS v. Lopez-Mendoza, 468 U.S. 1032,
1043-44, 104 S. Ct. 3479, 3486, 82 L. Ed. 2d 778 (1984). Second, even if the IJ did make an
adverse inference against Khan for his initial choice to remain silent, there is no evidence that
this was the major reason for denying his waiver of inadmissability and ordering his removal.
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