Khan, Mohammad A. v. Mukasey, Michael B. ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-1138
MOHAMMAD A. KHAN,
Petitioner,
v.
MICHAEL B. MUKASEY, Attorney General
of the United States,1
Respondent.
____________
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A76-720-273
____________
ARGUED NOVEMBER 30, 2007—DECIDED FEBRUARY 25, 2008
____________
Before BAUER, RIPPLE, and KANNE, Circuit Judges.
KANNE, Circuit Judge. Mohammad Azam Khan, a
native and citizen of Pakistan, petitions for review of a
final order of removal issued by an Immigration Judge (IJ)
and affirmed by the Board of Immigration Appeals (BIA).
The IJ found Khan removable because of his bank-fraud
conviction, and then denied Khan’s request for a discre-
tionary waiver of inadmissibility, see 8 U.S.C. § 1182(h),
and his application for an adjustment of status under
1
Attorney General Michael B. Mukasey is substituted pursuant
to Fed. R. App. P. 43(c).
2 No. 07-1138
the Immigration and Nationality Act, see 8 U.S.C. § 1255.
Because Khan’s petition does not raise any viable con-
stitutional claim or question of law, we conclude that
we lack jurisdiction.
I. HISTORY
Khan first entered the United States on a non-immi-
grant student visa in September 1991. In 1997, Khan and
his college roommate knowingly executed a bank-fraud
scheme; Khan was convicted after pleading guilty to one
count of violating 18 U.S.C. § 1344, an offense punishable
by up to thirty years’ imprisonment. Khan was sentenced
to six months’ imprisonment with credit for time served,
and to five years’ probation.
In July 1998, the government initiated removal proceed-
ings against Khan because, among other things, he had
been convicted of bank fraud—a crime of moral turpitude
for which a sentence of one year or longer might be
imposed—and he had committed the bank fraud within
five years after his admission to the country. See 8 U.S.C.
§ 1227(a)(2)(A)(i). Khan retained the services of Opeolu
Banwo, an attorney licensed in New York, to assist
him during these removal proceedings.
During a series of telephonic hearings before the IJ
from late 1998 until October 1999, Khan, through his
counsel Banwo, admitted all of the government’s allega-
tions and conceded his removability. Khan expressed his
intention to apply for asylum because he claimed that his
freedom would be threatened if he were deported to
Pakistan. See 8 U.S.C. § 1231(b)(3)(A). At the end of
the October 1999 hearing, the IJ scheduled another
telephonic hearing for 1:00 p.m. on February 10, 2000, to
consider Khan’s forthcoming application for asylum.
Shortly after the October 1999 hearing, Khan filed an
application for asylum in which he claimed that he was
No. 07-1138 3
a homosexual and would be persecuted in Pakistan
because “according to Islamic laws in Pakistan, there is
zero tolerance for homosexuality.” Khan claims that he
filed this application because Banwo told him that it was
the only way that Khan could avoid deportation. Khan
signed the application form, certifying under penalty of
perjury that all information provided in the application
was accurate.
Between October 1999 and February 10, 2000, a notice
was mailed to Banwo that the time of Khan’s February 10
hearing had been changed from 1:00 p.m. to 10:30 a.m.
However, Khan never received notice of this time change.
On the morning of February 10, Khan did not arrive for
his telephonic hearing. Instead, Banwo appeared on be-
half of Khan and moved to withdraw as counsel because,
Banwo claimed, he had been unable to contact Khan
for several months. As a result of Khan’s failure to ap-
pear, the IJ granted Banwo’s motion to withdraw and
ordered Khan removed in absentia. See 8 U.S.C.
§ 1229a(b)(5)(A).
In late July 2000, Khan filed a letter with the immigra-
tion court, which the IJ treated as a pro se motion to
reopen his case. Khan’s letter stated that he failed to
appear at the February 10 hearing because he lacked
notice of the time change. The letter claimed that in
addition to being Banwo’s client, Khan had been em-
ployed by Banwo in 1999; their employment relationship
came to an abrupt and acrimonious end, which Khan
insinuated, led Banwo to intentionally withhold the
hearing time-change from him and to misrepresent to
the court that Khan would not attend his removal hear-
ing. Khan’s letter also alleged that he was not a homo-
sexual and had merely handwritten the asylum applica-
tion as Banwo dictated it to him.
Shortly after filing this letter, Khan retained new
counsel, Bart Chavez, who filed a motion notifying the
4 No. 07-1138
IJ that Khan would be pursuing an alternative ground
for reopening his case based on an ineffective-assistance-
of-counsel claim against Banwo. See Matter of Lozada,
19 I. & N. Dec. 637 (BIA 1988). Chavez also sent a letter
to Banwo, advising him of Khan’s allegations against
him. Banwo responded to Chavez by denying all of Khan’s
allegations. Banwo adamantly denied Khan’s sugges-
tion that Banwo had told Khan what to write in his asylum
petition and enclosed Khan’s handwritten application and
supporting affidavits from family members as evidence
that Khan had determined what to write on the applica-
tion without any assistance from Banwo.
In November 2000, the IJ granted Khan’s motion to
reopen his case. In doing so, the IJ did not rule on Khan’s
ineffective-assistance-of-counsel argument because Khan’s
motion did not comply with the formal requirements for
making such an argument. See id. Nonetheless, the IJ
found that Khan did not have sufficient notice of the
February 10 hearing time-change, and granted his mo-
tion to reopen.
After the case was reopened, Khan filed a new applica-
tion for asylum. This time, Khan claimed asylum based
upon political persecution—the new application con-
tained no reference to homosexuality. Khan’s second
application also indicated that Khan had married Sandy
Amith, a United States citizen, in early January 2001. In
late July 2001, Sandy Amith-Khan filed an I-130 petition
that sought to have Khan reclassified as a permanent
resident alien based upon their marriage. See, e.g., Lino v.
Gonzales, 467 F.3d 1077, 1078 (7th Cir. 2006). The IJ
continued the case while the I-130 petition was pending,
and in April 2002, Amith-Khan’s I-130 petition was
approved. Based on this approval, the couple filed an I-485
application to adjust Khan’s status to permanent resident
alien in August 2002. See 8 U.S.C. § 1255(i).
No. 07-1138 5
At a telephonic hearing in April 2003, Khan withdrew
both asylum applications and opted to solely pursue his
I-485 application for an adjustment of status along with
a discretionary waiver of inadmissibility—this waiver
was needed because of his bank-fraud conviction. See 8
U.S.C. § 1182(h). After Khan withdrew his asylum
claims, the government responded by arguing that he
was statutorily ineligible for an adjustment of status
because he had filed a frivolous asylum application. See
8 U.S.C. § 1158(d)(6). At a telephonic hearing in
December 2003, the IJ rejected the government’s argu-
ment and ruled that Khan would not be automatically
barred from pursuing an adjustment of status because
he had not been given the requisite formal warnings
regarding filing a frivolous asylum application. See 8
U.S.C. § 1158(d)(4). The IJ explained that he would still
consider whether Khan had filed a petition based upon
false statements when deciding whether to issue the
waiver of inadmissibility—the IJ stated that this “would
be a highly-significant negative discretionary factor” in
his determination of whether to afford relief.
In late September 2004, the IJ held an evidentiary
hearing by televideo. At this hearing, Khan testified about
his bank-fraud conviction and his adverse relation-
ship with Banwo. During this testimony, Khan reiterated
that Banwo had directed him to claim that he was a
homosexual on his asylum application, that Banwo had
dictated the substance of the form to him as he handwrote
it, and that Banwo had repeatedly told him that this
was the only way to prevent his deportation. Khan also
testified about his relationships with his wife and her
autistic daughter, Nicole.
After Khan testified, the IJ said to Chavez, “you are
calling, then, respondent’s spouse, is that correct?” Chavez
responded, “Yes, that’s correct, Your Honor, I’ll bring
her in the room.” At this point, the IJ and the parties
6 No. 07-1138
engaged in an off-the-record discussion. After a few
minutes, the IJ went back on the record and sum-
marized the off-the-record conversation. The IJ explained
that this conversation pertained to a letter from the
New York Bar Association regarding whether it would
discipline Banwo—Khan had filed a grievance against
Banwo with the New York State Bar Association in
late July 2003, to which the Bar Association had re-
sponded by stating that it would not investigate the
complaint as a matter of policy because it had been lodged
as a Lozada claim. See 19 I. & N. Dec. at 637. The
IJ asked the parties, on the record, to consider how he
should handle Khan’s accusations against Banwo. The IJ
then adjourned the hearing without any testimony
from Amith-Khan, any indication of why she did not
testify, or any objection from Chavez.
In May 2005, the IJ issued a decision denying Khan a
waiver of inadmissibility and, consequently, an adjust-
ment of status. The IJ reasoned that because Khan had
been convicted of bank fraud, he could only obtain the
discretionary waiver if his deportation would cause
“extreme hardship” to his wife and her daughter. The IJ
first noted that the record was not sufficiently developed
on the issue of extreme hardship because Amith-Khan
never testified. The IJ then stated that even had Khan
proven extreme hardship, he would have still denied the
waiver as a matter of discretion because Khan had been
convicted of bank fraud and had filed a false asylum
application claiming that he was a homosexual. The IJ
concluded that these negative factors offset any equities
that favored granting him a waiver.
Khan then appealed the IJ’s decision to the BIA. In
December 2006, the BIA issued an order, which stated
that it could not find any sufficient reason to reverse the
IJ and concluded that the IJ had reasonably exercised his
discretion. The BIA accordingly dismissed Khan’s ap-
No. 07-1138 7
peal. We will therefore examine the IJ’s written opinion
as supplemented by the BIA. See, e.g., Bosede v. Mukasey,
No. 06-1625, slip. op. at 5 (7th Cir. Jan. 14, 2008).
II. ANALYSIS
In his petition for review, Khan argues that the IJ
failed to maintain a complete record of the removal
proceedings in violation of his constitutional due-process
rights. Specifically, Khan claims the record is deficient
because it does not account for the absence of his wife’s
testimony. Khan asserts that a gap in the record resulted
from the IJ engaging in off-the-record dialogue with the
parties just after counsel indicated that Amith-Khan would
testify. Khan contends that this off-the-record conversation
was a procedural error, and he cites a memorandum from
the Chief Immigration Judge advising an IJ to limit off-
the-record dialogue as support for his argument. Khan also
argues that the IJ improperly balanced the equities in
favor of denying Khan a waiver of inadmissibility.
Appellate jurisdiction over a petition for review of an
order of removal has been narrowly circumscribed by
Congress, which has chosen to delegate many immigration
decisions to the Attorney General. See 8 U.S.C. § 1252. We
may review a discretionary decision—such as the denial
of a request for an adjustment of status or a denial of
a waiver of inadmissibility—only where the petition
raises “constitutional claims or questions of law.” See 8
U.S.C. § 1252(a)(2); see also Klementanovsky v. Gonzales,
501 F.3d 788, 791 (7th Cir. 2007); Jarad v. Gonzales, 461
F.3d 867, 869 (7th Cir. 2006). For instance, we have
held that we lack jurisdiction to review the Attorney
General’s exercise of discretion when denying a waiver
of inadmissibility; however, we retain jurisdiction to
examine whether the correct legal standard was applied to
8 No. 07-1138
an alien’s claim. Ali v. Achim, 468 F.3d 462, 465 (7th Cir.
2006).
Here, Khan makes no argument that the IJ applied the
inappropriate legal standard in denying his waiver of
inadmissibility. Instead, he contends that the IJ improp-
erly balanced the equities in deciding whether to grant a
waiver. By asking us to review the IJ’s balancing of the
equities in deciding whether to grant him a waiver, Khan
is really asking us to review the merits of the IJ’s dis-
cretionary determination. We have no jurisdiction to do so
and therefore will not conduct an analysis of this argu-
ment. See 8 U.S.C. § 1252(a)(2)(B)(i); see also Iqbal Ali v.
Gonzales, 502 F.3d 659, 664 (7th Cir. 2007); Vasile v.
Gonzales, 417 F.3d 766, 768 (7th Cir. 2005).
The only argument Khan advances that could conceiv-
ably raise a “constitutional claim or question of law” is
his contention that the IJ violated his procedural due-
process rights by failing to maintain a complete record
of the removal proceedings. We have repeatedly reminded
aliens claiming constitutional violations that immigra-
tion proceedings that meet statutory and regulatory
standards comport with due process, and, as such, aliens
are better-served by arguing instead that immigra-
tion proceedings infringed the statutory and regulatory
right to a reasonable opportunity to present evidence. See,
e.g., Mohammad Hussain v. Keisler, 505 F.3d 779, 781 (7th
Cir. 2007); Kadia v. Gonzales, 501 F.3d 817, 824 (7th Cir.
2007); Alimi v. Gonzales, 489 F.3d 829, 834 (7th Cir. 2007);
see also 8 U.S.C. § 1229a(b)(4); 8 C.F.R. § 1240.1(c).
Nevertheless, Khan has has presented a “flabby con-
stitutional argument” in lieu of arguing that his statutory
or regulatory right was violated. See Rehman v. Gonzales,
441 F.3d 506, 509 (7th Cir. 2006). While an alien has
a Fifth Amendment right to due process in immigration
proceedings, see Giday v. Gonzales, 434 F.3d 543, 547 (7th
No. 07-1138 9
Cir. 2006) (citing Reno v. Flores, 507 U.S. 292, 306 (1993)),
it is well-established that a party complaining of a due-
process violation must assert a liberty interest in order to
maintain his due-process claim, see Cevilla v. Gonzales,
446 F.3d 658, 662 (7th Cir. 2006). As a result, we have
repeatedly held that “an alien’s right to due process does
not extend to proceedings that provide only such discre-
tionary relief ” because an appeal to discretion is not a
substantive entitlement. Id. at 662; Hamdan v. Gonzales,
425 F.3d 1051, 1060-61 (7th Cir. 2005); see also Dave v.
Ashcroft, 363 F.3d 649, 653 (7th Cir. 2004). Here, Khan
was required to pursue discretionary relief—the waiver
of inadmissibility—in order to remain in the country.
Therefore, Khan has not asserted any liberty interest, and
as a result, he cannot maintain his constitutional due-
process claim.
We will nevertheless evaluate Khan’s “due process” argu-
ment as a claim that he did not receive a fair immigration
hearing. See, e.g., Mohammad Hussain, 505 F.3d at 781.
But even if we resurrect Khan’s argument by recasting
it in statutory and regulatory terms, it still fails because
Khan cannot prove that the IJ’s failure to abide by an
agency memorandum prejudiced him in any way. See
Apouviepseakoda v. Gonzales, 475 F.3d 881, 885 (7th Cir.
2007) (“In order to succeed in challenging the legality of
such a hearing, the alien must show not only that her
‘reasonable opportunity’ was denied, but also that she
was prejudiced.” (citing Rehman, 441 F.3d at 509)). We
do not see how Khan can prove prejudice when the IJ
stated that he would have denied Khan’s waiver even had
he received beneficial testimony from Khan’s wife.
Moreover, Khan does not claim that the IJ denied him
the right to present testimony on his behalf. In fact, Khan
offered his own testimony and failed to object when the
IJ closed the testimony in his case before his wife
could testify. Even now, Khan does not claim that the IJ
10 No. 07-1138
failed to provide him an opportunity to present testimony,
but only that the IJ maintained a record that failed to
explain the absence of Amith-Khan’s testimony. Whether
or not violation of an internal agency memorandum could
amount to a “question of law” within the umbrella of our
jurisdiction—an issue we need not address—we are not
convinced that the IJ’s actions actually violated the memo-
randum’s terms, which merely state that off-the-record
dialogue is allowed but should be limited. Without ap-
parent prejudice to Khan, his due-process claim fails.
III. CONCLUSION
Because Khan has not raised any plausible constitu-
tional claim or question of law, we DISMISS the petition
for lack of jurisdiction.
USCA-02-C-0072—2-25-08