Petrov, Aleksey v. Gonzales, Alberto ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-4696
ALEKSEY GENNADIYOVICH PETROV,
Petitioner,
v.
ALBERTO R. GONZALES, Attorney General
of the United States,
Respondent.
____________
Petition for Review of an Order of the
Board of Immigration Appeals
____________
ARGUED SEPTEMBER 20, 2006—DECIDED OCTOBER 6, 2006
____________
Before POSNER, EASTERBROOK, and EVANS, Circuit
Judges.
EASTERBROOK, Circuit Judge. In 1998 the United States
Embassy in Moscow gave Aleksey Gennadiyovich Petrov
permission to enter the United States on parole, a reward
for assistance that he had rendered in a criminal investiga-
tion. This status was renewed annually until Petrov
was convicted of conspiracy to bribe federal officials as part
of an immigration fraud. He admitted helping at least four
other persons obtain bogus “green cards,” accepting more
than $10,000 for his efforts. Petrov was sentenced to 16
months’ imprisonment, and his right to remain in the
United States was not renewed. Nonetheless, he asked
immigration officials to withhold removal; he also main-
2 No. 05-4696
tained that he would be subject to torture if returned to
Russia. An immigration judge concluded that Petrov’s
conviction makes him ineligible for withholding of removal
and that his return to Russia would be compatible with the
Convention Against Torture. The Board of Immigration
Appeals dismissed his appeal.
Petrov’s criminal conviction forecloses most of the argu-
ments he presents in this court.
Notwithstanding any other provision of law (statu-
tory or nonstatutory), including section 2241 of title
28, United States Code, or any other habeas corpus
provision, and sections 1361 and 1651 of such title,
and except as provided in subparagraph (D), no
court shall have jurisdiction to review any final
order of removal against an alien who is removable
by reason of having committed a criminal offense
covered in section 1182(a)(2) or 1227(a)(2)(A)(iii),
(B), (C), or (D) of this title, or any offense covered by
section 1227(a)(2)(A)(ii) of this title for which both
predicate offenses are, without regard to their date
of commission, otherwise covered by section
1227(a)(2)(A)(i) of this title.
8 U.S.C. §1252(a)(2)(C). Section 1227(a)(2)(A)(iii) in turn
provides that an alien who commits an “aggravated felony”
while in the United States is removable. The definition of
that phrase, in §1101(a)(43), includes a long list. At least
two entries on that list cover Petrov’s crime: subsection (M)
refers to any crime of fraud or deceit in which the loss
exceeds $10,000, and subsection (P) refers to any crime that
entails the creation of bogus immigration credentials when
the sentence exceeds a year in prison.
Petrov does not deny that his conviction is for an “aggra-
vated felony.” He took in at least $10,000, which is a loss to
the aliens who paid him and received spurious documents
in exchange. The crime thus qualifies under subsection (M).
No. 05-4696 3
His sentence for procuring these bogus immigration
documents exceeded a year, so the crime also qualifies
under subsection (P). Petrov’s lawyer simply ignores the
issue, choosing instead to contend that his crime is not a
“particularly serious crime” for the purpose of 8 U.S.C.
§1231(b)(3)(B)(ii). When a criminal’s sentence is less than
five years, the agency may decide that the crime is not
“particularly serious” and, if so, the alien is eligible for
withholding of removal. That was Petrov’s principal
argument to the Board: his sentence was less than five
years, and he wanted the Board to declare the offense “not
particularly serious” and remand for a hearing so that the
immigration judge could apply the criteria for withholding
of removal. Yet given §1252(a)(2)(C), the undisputed
classification of Petrov’s crime as an “aggravated felony”
means that we are not authorized to inquire whether it is
also a “particularly serious crime”—for the latter character-
ization affects the agency’s decision, not ours.
An alien who commits a crime that is not an “aggravated
felony,” and may or may not be a “particularly serious
crime,” still encounters a jurisdictional hurdle, for
§1252(a)(2)(B) forecloses judicial review of certain discre-
tionary decisions. We concluded in Tunis v. Gonzales, 447
F.3d 547 (7th Cir. 2006), that classification of a particular
crime as “particularly serious” often is discretionary.
(“Often” is an important qualifier, for the agency does not
have discretion to contradict its own rules of decision. A
contention that the immigration judge or Board failed to
use the right rule of law when making the classification
therefore is open to judicial review under §1252(a)(2)(D),
though a claim that the agency abused its discretion in
weighing the multiple desiderata made relevant by the
Board’s definition of a “particularly serious crime” is not
reviewable.) But when the crime is an “aggravated felony,”
§1252(a)(2)(C) blocks judicial review of the removal order
whether or not the agency has made a discretionary
4 No. 05-4696
decision. Subsection (C) covers the removal order as a
whole.
As Petrov sees things, the judiciary always may review
the agency’s application of the Convention Against Torture.
After concluding in Tunis that the Board had not contra-
dicted its own definition of the phrase “particularly serious
crime” (and that its discretionary weighing of multiple
factors was not reviewable), we then addressed, on the
merits, Tunis’s request for relief under the Convention
Against Torture. Petrov wants us to follow suit. Yet the
panel in Tunis considered only the effect of §1252(a)(2)(B),
holding that it does not apply because relief under the
Convention is non-discretionary. We did not ask whether
§1252(a)(2)(C) independently forecloses review if the
conviction is of a kind covered by that subsection. Because
Tunis did not mention that subject, it does not contain a
holding on the issue. See Steel Co. v. Citizens for a Better
Environment, 523 U.S. 83, 91 (1998); United States v. L.A.
Tucker Truck Lines, Inc., 344 U.S. 33, 38 (1952).
An earlier decision that addressed the effect of
§1252(a)(2)(C) directly holds that a criminal alien’s conten-
tions under the Convention are not reviewable. See Hamid
v. Gonzales, 417 F.3d 642 (7th Cir. 2005). That holding,
which Tunis did not question (and Petrov ignores, even
though the agency relies on it), is controlling today. Recall
the language of subsection (C) (emphasis added): “no court
shall have jurisdiction to review any final order of removal
against an alien who is removable by reason of having
committed” an aggravated felony. Unlike subsection (B),
which forbids review of particular issues in a case otherwise
within the court’s authority, subsection (C) provides that
the “order of removal” itself is unreviewable. There is no
exception for arguments under the Convention. This does
not mean that the Convention may be ignored; it means
only that the administrative resolution of disputes about
No. 05-4696 5
the risk a criminal alien faces in his native land is conclu-
sive.
Subsection (C) does have one exception: it refers to
subsection (D), which as amended by the Real ID Act of
2005 permits “review of constitutional claims or questions
of law”. No rule of law prevents the removal of aliens who
have committed immigration fraud. See INS v. Yueh-Shaio
Yang, 519 U.S. 26 (1996); Alsagladi v. Gonzales, 450 F.3d
700 (7th Cir. 2006). Nor did the Board make any legal error
in applying the Convention Against Torture. Factual
mistakes, if any, in understanding how Russia treats
persons in his position differ from “questions of law”; Petrov
does not argue otherwise. He maintains, however, that the
agency violated the due process clause of the fifth amend-
ment by assigning his hearing to Immigration Judge George
P. Katsivalis, who until his appointment as an IJ in 2005
had been the Chief Counsel of the Chicago Office of Immi-
gration and Customs Enforcement. Katsivalis had served in
an equivalent position during 2002 and 2003 with ICE’s
predecessor, the Immigration and Naturalization Service.
Petrov insists that Katsivalis must have played some role
in the agency’s decision to terminate his parole and seek his
removal under 8 U.S.C. §1228(b)—and that, even if he did
not, his service as an IJ created an appearance of impropri-
ety.
Petrov’s position has neither factual nor legal support.
Nothing in the record implies that Katsivalis had any
involvement in ICE’s decision to commence removal
proceedings against Petrov. The Chief Counsel of a large
office is unlikely to play any role in routine decisions of this
kind. We held in Mireles v. Gonzales, 433 F.3d 965 (7th Cir.
2006), that the alien must produce evidence that his case is
the rare one in which the head of an office took part in a
routine action; Petrov’s situation is functionally identical.
As for law: Petrov assumes that the Constitution forbids
an agency official who has participated in a prosecution
6 No. 05-4696
decision to play a role in its adjudication, but he does not
cite a single case for that proposition. He mentions
8 U.S.C. §1229a(b), which entitles aliens to a reasonable
opportunity to present and examine evidence, but a judge’s
former position does not detract from this right, which
concerns what happens at the hearing rather than
the presiding officer’s curriculum vitae. Officials of the
Executive Branch (a category that includes immigration
judges) play dual roles all the time. Commissioners of the
Equal Employment Opportunity Commission file “Commis-
sioner’s charges” of employment discrimination that the
Commission proceeds to adjudicate. The Federal Trade
Commission and Securities and Exchange Commission
issue complaints that accuse respondents of violating the
antitrust or securities laws; after an administrative law
judge takes evidence, the same Commissioners who ap-
proved the complaint decide whether the respondent has
violated the law and, if so, what remedy is appropriate. No
decision of which we are aware holds that this mixture of
prosecutorial and adjudicatory functions violates the
Constitution. There is no actual conflict of interest: No
Commissioner’s pocketbook is on the line in any of these
decisions.
Whether “appearance of impropriety” is a constitutional
doctrine (or only based on statute) is a subject that may
be left open today, as it was in Del Vecchio v. Illinois
Department of Corrections, 31 F.3d 1363 (7th Cir. 1994) (en
banc). Claims of an “appearance of impropriety” are as-
sessed from the perspective of an informed third party. See
Liteky v. United States, 510 U.S. 540, 548 (1994); Liljeberg
v. Health Services Acquisition Corp., 486 U.S. 847 (1988).
Because the record does not offer any reason to believe that
IJ Katsivalis participated in the decision to commence
proceedings against Petrov, an objectively reasonable and
well-informed person would not perceive any impropriety.
Consider a parallel: a federal judge who joined the bench
No. 05-4696 7
after service as a United States Attorney or a member of
the Cabinet. Such a person would not be disqualified just
because there was a possibility that subordinates had made
a decision that might be contested in court. Instead the
right question would be whether the new judge had “served
in governmental employment and in such capacity partici-
pated as counsel, adviser or material witness concerning the
proceeding or expressed an opinion concerning the merits of
the particular case in controversy”. 28 U.S.C. §455(b)(3).
See also subsection (b)(1) (disqualification required if the
judge has “personal knowledge of disputed evidentiary facts
concerning the proceeding”). The Board of Immigration
Appeals has adopted the standards of §455 for itself and the
immigration judges. See Matter of Exame, 18 I&N Dec. 303,
306-07 (1982). Nothing suggests that IJ Katsivalis “partici-
pated as counsel” in proceedings against Petrov, expressed
an opinion about Petrov’s rights, or gained knowledge of
any disputed material facts about Petrov, before his
appointment as an immigration judge. No legal rule forbids
his participation; whether recusal would have been prudent
is not a pure question of law and so is outside the Real ID
Act’s exception to §1252(b)(2)(C).
None of Petrov’s other arguments requires discussion. The
petition is dismissed for lack of jurisdiction.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-6-06