Papayer v. Holder , 335 F. App'x 461 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 29, 2009
No. 08-60487 Charles R. Fulbruge III
Summary Calendar Clerk
YVON PAPAYER
Petitioner
v.
ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL
Respondent
Petition for Review of an Order
of the Board of Immigration Appeals
BIA No. A24 704 492
Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
Yvon Papayer, a native and citizen of Haiti, petitions for review of a
decision by the Board of Immigration Appeals (BIA) finding that he had not
submitted sufficient evidence to establish his eligibility for adjustment of status
under the Haitian Refugee Immigration Fairness Act of 1998 (HRIFA), Pub. L.
No. 105-277, § 902, 112 Stat. 2681-538 (codified as amended at 8 U.S.C. § 1255note (2006)). Papayer raised that ground for relief for the first time before the
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
No. 08-60487
BIA, and the BIA declined to remand his case to the Immigration Judge (IJ) due
to Papayer’s failure to submit sufficient evidence to establish his eligibility for
adjustment of status under the HRIFA. The government asserts that this court
lacks jurisdiction to review the decision of the BIA under the jurisdiction-
stripping provision of the HRIFA. Papayer does not address that provision, and
simply asserts that he is eligible for relief under the HRIFA.
The “Limitation on Judicial Review” provision of the HRIFA provides that
“[a] determination by the Attorney General as to whether the status of any alien
should be adjusted under [the HRIFA] is final and shall not be subject to review
by any court.” Pub. L. No. 105-277, § 902(f), 112 Stat. 2681-538. By its explicit
terms, that provision deprives this court of jurisdiction to review a determination
by the BIA (acting on behalf of the Attorney General) as to whether the status
of an alien should be adjusted under the HRIFA.1 See Sicar v. Chertoff, 541 F.3d
1055, 1061 (11th Cir. 2008) (“The only even arguable threshold issue set forth
in § 902(f) is whether there has been a determination by the Attorney General.
If there has been, and in this case there has, we have no jurisdiction to review
it. The language of § 902(f) could not be plainer.”); Alexis v. U.S. Attorney Gen.,
1
We note that the Real ID Act of 2005 specifically grants courts of appeals jurisdiction
to review “constitutional claims or questions of law” arising from BIA orders, notwithstanding
“any other provision of [the Immigration and Nationality Act].” 8 U.S.C. § 1252(a)(2)(D)
(2006); see also Nakimbugwe v. Gonzales, 475 F.3d 281, 284 (5th Cir. 2007) (discussing the
Real ID Act’s restoration of this court’s jurisdiction to hear rulings over constitutional claims
or questions of law). Congress expressly appended the HRIFA as a note to 8 U.S.C. § 1255,
an immigration statute within the Immigration and Nationality Act. See Midi v. Holder, ---
F.3d ----, No. 08-1367, 2009 WL 1298651, at *3 & n.3 (4th Cir. May 12, 2009) (holding that the
jurisdiction-stripping provision of the HRIFA does not deprive a court of jurisdiction to review
constitutional claims or questions of law). However, Papayer does not assert a constitutional
claim or argue that the BIA erred in resolving a question of law; rather, Papayer challenges
the BIA’s factual finding that he had failed to submit any evidence to establish that he ever
properly applied for relief under the HRIFA.
2
No. 08-60487
431 F.3d 1291, 1294 (11th Cir. 2005) (stating that “the language embodied in
section 902(f) could not be any clearer” that a court has “no jurisdiction to
consider the adjustment decision”). In this case, the BIA’s finding that Papayer
had not submitted sufficient evidence to establish his eligibility for adjustment
of status under the HRIFA amounts to a determination that Papayer’s status
should not be adjusted under the HRIFA. As a result, it is not subject to review
by this court under the jurisdiction-stripping provision of the HRIFA.
Papayer’s petition for review is DISMISSED.
3