[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
OCTOBER 26, 2007
No. 07-11660
THOMAS K. KAHN
Non-Argument Calendar
CLERK
________________________
BIA No. A29-346-270
HAROLD SEQUIERA,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(October 26, 2007)
Before BIRCH, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Harold Sequiera petitions for review of the Board of Immigration Appeals
(“BIA”) decision dismissing his appeal of the denial by the Immigration Judge
(“IJ”) of his application for adjustment of status under the Nicaraguan Adjustment
and Central American Relief Act of 1997 (“NACARA”), Pub. L. No. 105-100,
§ 202, 111 Stat. 2160, 2193 (1997) and application for waiver of inadmissibility
for crimes of moral turpitude pursuant to section 212(h) of the Immigration and
Nationality Act (“INA”), 8 U.S.C. § 1182(h). Sequiera contends that he was
denied due process during his hearing before the IJ. He also argues that he
presented sufficient evidence that his wife and mother would suffer extreme
hardship upon his deportation to merit waiver of his inadmissibility due to
commission of crimes of moral turpitude. We deny his due process claims and
dismiss the petition as to his adjustment of status claims.
I. BACKGROUND
Sequiera, a native of Nicaragua, became subject to deportation proceedings
as an alien who entered the United States without inspection in March of 1997.1
He filed applications for suspension of deportation and adjustment of status based
on his marriage to a United States citizen, Jennifer Bustamante. Sequiera indicated
1
Although the record does not include the original INS notices and application for adjustment
of status to which Sequiera was a party, it makes clear that he initially petitioned for adjustment of
status under NACARA along with his mother, brother, and sister, but later separated his case due
to his own criminal history.
2
on the form that he had not been involved in any serious criminal offense. He
supplemented his application by filing an approved I-130 petition, his marriage
certificate, his wife’s birth certificate, his birth certificate, his police record for his
juvenile arrest, tax returns and bank statements, his fingerprints, medical
examination records, and many other supporting documents. In December of
1998, however, because his marriage was ending, he moved to amend his
application to seek relief under NACARA.
In January 1999, the IJ conducted Sequiera’s deportation hearing. Because
Sequiera still needed to file a waiver of inadmissibility to proceed under
NACARA, the IJ heard testimony that day but agreed to continue the hearing to
permit the filing and to hold in abeyance Sequiera’s suspension of deportation
application. During this initial portion of the hearing, Sequiera admitted to two
prior arrests: one as a minor, for which he was never formally charged, and a
second, when he was 18 years old, for two robberies in connection with which he
eventually pled guilty and completed home arrest and two years of probation. He
also testified that he did not realize that his immigration applications stated that he
had never been arrested.
Sequiera also testified that he lived with his mother, Bertha Floris, his older
brother, Alan Sequiera, and a younger sister, Maria Castro, in Floris’s home, for
which he had provided a portion of the down payment. Sequiera stated that he,
3
Floris, and Alan split the home’s monthly mortgage payments. He explained that
during his marriage, he had lived with Bustamante’s parents and had not
contributed to his mother’s support. He testified that his father, half-siblings,
aunts, and cousins also resided in the United States.
Floris testified that Sequiera’s deportation would greatly affect her in that it
would break-up her family. She confirmed that Sequiera had paid approximately
$2,500 of the $8,000 down payment on her home and that he had helped her
financially since he began working as a teenager. AR at 511, 512-13. She
estimated her income as $250 per week.
Id. at 514. She clarified that Castro was
married and lived separately with her husband, but visited on the weekends.
Because no further testimony was offered, the IJ continued the hearing to permit
Sequiera to file his application for waiver of inadmissibility.
When the hearing was recovened, the IJ acknowledged receiving the waiver,
but noted that Sequiera’s medical records remained deficient. Sequiera did not
offer to testify or to present further witnesses.
Id. at 523. In closing, he argued a
waiver of inadmissibility should be granted because, although he had committed a
horrible crime, he had been young, manipulated by peers, and had not actually
attacked the victims himself. He emphasized his remorse, the successful
completion of his sentence, and the overall improvement of his situation. He
4
argued that deportation would bring extreme hardship to his immediate family,
who were permanent residents, and that it would destroy his life.
The IJ observed that, in order to qualify for NACARA relief, Sequiera was
required to prove that he: (1) was a Nicaraguan national; (2) who had entered the
United States before 2 December 1995 and had continually resided there; and (3)
was not otherwise inadmissible under 8 U.S.C. § 1182(a), unless the
inadmissibility was waived under 8 U.S.C. § 1182(h). The IJ concluded that
Sequiera met the citizenship and residency requirements, but was inadmissible due
to his robbery arrests and convictions. The IJ found that Sequiera had failed to
prove that his mother would suffer hardship sufficient to qualify him for waiver of
inadmissability under § 1182(h)(1)(B). Accordingly, Sequiera’s waiver of
inadmissability and application for relief under NACARA were denied. The IJ
also cited Sequiera’s failure to supplement his medical record, as required by law,
as an independent basis for denial. The IJ ordered Sequiera deported.
Sequiera appealed the IJ’s decision. In his brief, Sequiera asserted that
additional evidence, which had been unavailable at the hearing, merited remand. A
few weeks later, he moved to stay a final order and decision of the appeal, on the
ground that his former immigration counsel had conceded as to a grievance he filed
against her for ineffective representation. Sequiera argued that, if he been
adequately represented by counsel before the IJ, his waiver would have been
5
granted. Sequiera also moved to incorporate additional exhibits into his pending
appeal, reporting that he had married Yulaida Ramirez, a United States citizen, in
April 2001, and that she had filed an I-130 relative petition thereby allowing him to
proceed on an additional ground for relief.
In March 2002, the BIA granted Sequiera’s unopposed motion to remand
based on newly presented evidence and found it unnecessary to adjudicate his
motion based on ineffective assistance of counsel. On remand, the IJ was to
consider the hardship to Ramirez in the context of an INA § 212(h) waiver.
Sequiera filed the following additional evidence, all of which was later admitted
without objection during the hearing: (1) affidavits attesting to his good moral
character and criminal rehabilitation; (2) his tax return for 2004; (3) deeds to real
estate; (4) employment pay stubs; (5) mortgage statements; (6) credit reports; and
(7) bank statements.
At the July 2005 hearing, although the IJ stated that she would only hear the
issue remanded by the BIA, she also requested evidence of any change in
circumstances related to Floris. Floris testified that Sequiera gave her $100 per
month, that she currently earned $7.50 an hour, and that Castro now lived with her
and contributed to the mortgage payments.
Id. at 124. She reported that Alan was
employed as an engineer and also sporadically provided her monetary support.
6
She also testified that Sequiera was a loving and caring person, who provided her
sentimental and psychological support.
Ramirez described Sequiera as a person with a good heart, who takes care of
people. She testified that she and Sequiera owned four homes together, that
Sequiera was very close to his mother and other relatives, and that their marriage
was strong, although financial difficulties had caused a short period of separation.
When the IJ questioned the existence of financial difficulties in the face of their
combined income of $100,000 per year, Ramirez explained that they differed in
how to spend money.
Id. at 138. Upon further questioning, she admitted that she
earned approximately $40,000 per year herself and could likely afford the
mortgage of the marital residence.
Id. at 145, 147-8. She also admitted that she
could likely secure health insurance through her employer. Floris, Ramirez and
one of Sequiera’s co-workers all testified to Sequiera’s good moral character, and
to his remorse over having committed crimes, including a 2004 DUI conviction
about which he had not yet informed the court. Sequiera did not ask to testify, nor
did he offer the testimony of any other witness.
Id. at 155-56.
In light of the new evidence, the IJ found that Floris was able to work and
only received $100 per month, other miscellaneous expenses, and general
sentimental and psychological support from Sequiera. She also found that Ramirez
owned multiple properties, earned at least $40,000 per year, and had provided no
7
detailed information as to the emotional hardship she would suffer if Sequiera were
deported. The IJ found no evidence of any significant community involvement by
Sequiera and pointed out that Sequiera had not provided any records or evidence of
his DUI conviction or proper records concerning his tax liability. Referring to the
discussion of legal standards and burdens of proof and eligibility for NACARA
relief in her original January 1999 decision, and based on all of the testimony and
documentary evidence presented, the IJ concluded that Sequiera had not offered
sufficient evidence to show the extreme hardship necessary to warrant a change of
her prior decision. She reasoned that, in balancing the positive and negative
factors, “although there [was] the additional positive factor of a United States
citizen spouse, there [was] also the additional negative factor of a DUI close to the
time of the hearing,” which weighed against discretionary relief under 8 U.S.C. §
1182(h).
Id. at 96-97. Finally, she reasoned that Sequiera’s failure to provide the
required medical records made him statutorily ineligible for adjustment of status,
notwithstanding any § 1182(h) waiver. Accordingly, for these reasons and for
those stated in the January 1999 decision, the IJ denied Sequiera’s application for
adjustment of status under NACARA.
Sequiera filed a notice of appeal with the BIA, arguing that the IJ: (1)
misinterpreted the hardship requirement to mean more than extreme hardship; (2)
erred in requesting re-examination of the visa petition, limiting hearing testimony,
8
basing denial on failure to submit to a medical examination, and finding him not
credible; and (3) improperly rescheduled the hearing. The BIA found no error in
the IJ’s finding that Sequiera had failed to demonstrate that Floris and Ramirez
would suffer extreme hardship if he was deported and concluded that Sequiera had
not met the burden of proof required to warrant relief under INA § 212(h). As for
the alleged due process and procedural errors, the BIA found that Sequiera had not
asked to testify himself and had not demonstrated how any of the alleged errors
had caused him substantial prejudice. His appeal was dismissed. He now petitions
for review of that decision.
II. DISCUSSION
“We review constitutional challenges de novo.” Lonyem v. U.S. Att’y Gen.,
352 F.3d 1338, 1341 (11th Cir. 2003) (per curiam). To establish a due process
violation, a petitioner “must show that [he was] deprived of liberty without due
process of law, and that the asserted error[] caused [him] substantial prejudice.”
Id. During a removal hearing, an alien “may present evidence and witnesses in his
or her own behalf.” 8 C.F.R. § 1240.11(c)(3)(iii). Further, “[t]he immigration
judge shall receive and consider material and relevant evidence, rule upon
objections, and otherwise regulate the course of the hearing.” 8 C.F.R.
§ 1240.1(c); see also 8 U.S.C. § 1229a(b)(1) (stating that the IJ shall “receive
9
evidence, and interrogate, examine, and cross-examine the alien and any
witnesses”).
In this case, the record demonstrates that Sequiera had the benefit of all of
these prescribed procedures. The IJ afforded him a full and fair opportunity to
present evidence and to testify, and made her decision based upon the entire record
before her. Accordingly, we find that Sequiera’s due process claim is without
merit.
Before addressing Sequiera’s non-constitutional claims, and in particular his
argument that he established the extreme hardship requisite to a waiver of
inadmissibility, we must first determine whether we have subject matter
jurisdiction to hear the petition as to these issues. See Resendiz-Alcaraz v. U.S.
Att’y Gen.,
383 F.3d 1262, 1266 (11th Cir. 2004). “We review subject matter
jurisdiction de novo.”
Id.
Section 202(f) of NACARA states that “[a] determination by the Attorney
General as to whether the status of any alien should be adjusted under this section
is final and shall not be subject to review by any court.” § 202(f), 111 Stat. at
2196. Accordingly, we have recognized the clear intent of Congress to foreclose
judicial review of determinations by the Attorney General in such cases. Ortega v.
U.S. Att’y Gen.,
416 F.3d 1348, 1350 (11th Cir. 2005) (per curiam). The INA
similarly precludes appellate review of a denial of discretionary relief, such as
10
waiver of inadmissibility due to crimes of moral turpitude under 8 U.S.C. §
11822(h). 8 U.S.C. § 1252(a)(2)(B)(i). For these reasons, we conclude that we
lack jurisdiction to review Sequiera’s claims related to his adjustment of status.
III. CONCLUSION
Sequiera petitions for review of the BIA’s dismissal of his appeal of the IJ’s
denial of his application for adjustment of status under NACARA and waiver of
inadmissibility. Sequiera first contends that he was denied due process during his
hearing before the IJ. He also argues that he presented sufficient evidence to
establish the extreme hardship requisite to a waiver of inadmissibility. Because the
record clearly demonstrates that Sequiera had a full and fair opportunity to present
evidence and the to testify, we DENY his due process claim. Because we lack
jurisdiction to review discretionary decisions relating to waiver of admissibility,
we DISMISS Sequiera’s petition as to those claims.
11
