Mikhail Pechenkov v. Eric H. Holder Jr. , 705 F.3d 444 ( 2012 )


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  •                 FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    MIKHAIL G. PECHENKOV ,                   No. 08-73287
    Petitioner,
    Agency No.
    v.                      A072-142-992
    ERIC H. HOLDER, JR., Attorney
    General,                                   OPINION
    Respondent.
    On Petition for Review of an Order of the
    Board of Immigration Appeals
    Argued and Submitted
    April 17, 2012–San Francisco, California
    Filed December 3, 2012
    Before: Mary M. Schroeder, Diarmuid F. O’Scannlain,
    and Susan P. Graber, Circuit Judges.
    Opinion by Judge Graber;
    Concurrence by Judge Graber
    2                    PECHENKOV V . HOLDER
    SUMMARY*
    Immigration
    The panel dismissed in part and denied in part Mikhail G.
    Pechenkov’s petition for review of the Board of Immigration
    Appeals’ denial of withholding of removal and adjustment of
    status.
    The panel held that it lacked jurisdiction pursuant to
    
    8 U.S.C. § 1252
    (a)(2)(C) over Pechenkov’s challenge to the
    discretionary determination finding him ineligible for
    withholding because the crime underlying his removability
    was a “particularly serious crime.” The panel upheld the
    revocation of Pechenkov’s asylee status pursuant to 
    8 C.F.R. § 208.24
    (a)(2), also due to his conviction, and denied
    Pechenkov’s constitutional challenge to the provisions
    precluding adjustment of status after his asylee status was
    revoked.
    Judge Graber, concurring, agreed that in this case the
    court lacks jurisdiction to review the BIA's "particularly
    serious crime" determination, but wrote separately to urge the
    court to consider revisiting, in an appropriate case, what she
    believes is an erroneous reading of § 1252(a)(2)(C). Judge
    Graber wrote that this court alone has created an
    "on-the-merits" exception, allowing review of a merits-based
    denial of relief, as opposed to a denial based on ineligibility
    due to a criminal conviction. She would rather simply inquire
    as to whether an alien is charged with removability because
    *
    This summary constitutes no part of the opinion of the court. It has
    been prepared by court staff for the convenience of the reader.
    PECHENKOV V . HOLDER                       3
    of a relevant crime and whether the IJ correctly sustained the
    charge, and find that if so, the court lacks jurisdiction over
    questions not covered by § 1252(a)(2)(D).
    COUNSEL
    Frank P. Sprouls, Law Office of Ricci & Sprouls, San
    Francisco, California, for Petitioner.
    Lance Lomond Jolley, Trial Attorney, and Cindy S. Ferrier,
    Senior Litigation Counsel, Office of Immigration Litigation,
    Washington, D.C., for Respondent.
    OPINION
    GRABER, Circuit Judge:
    Petitioner Mikhail G. Pechenkov seeks review of a
    decision of the Board of Immigration Appeals (“BIA”)
    adopting and affirming an immigration judge’s (“IJ”) denial
    of his application for withholding of removal. Petitioner
    argues that the BIA abused its discretion in ruling that he was
    ineligible for withholding of removal because he had been
    convicted of a “particularly serious crime” within the
    meaning of 
    8 U.S.C. § 1231
    (b)(3)(B)(ii). Petitioner also
    raises a constitutional challenge to the legal provisions
    precluding adjustment of his immigration status. He argues
    that he is eligible for adjustment of status because his asylee
    status was revoked improperly, under a regulation that
    purportedly contradicts relevant statutory authority. We
    dismiss, for lack of jurisdiction, Petitioner’s challenge to the
    4                    PECHENKOV V . HOLDER
    “particularly serious crime” determination, and we deny his
    petition with regard to the application to adjust status.
    Petitioner, a native and citizen of Russia, was admitted to
    the United States in 1992. He filed an application for asylum,
    which was granted. After he obtained asylee status,
    Petitioner was convicted of felony assault with a deadly
    weapon or force likely to produce great bodily injury, in
    violation of California Penal Code section 245(a)(1) (1993);
    his penalty included a suspended sentence of three years,
    felony probation for three years, 248 days in jail, and
    restitution.
    After his conviction, Petitioner filed an application,
    pursuant to 
    8 U.S.C. § 1159
    (b), to adjust his status to that of
    a lawful permanent resident. That application was denied
    because, under 
    8 U.S.C. § 1182
    (a)(2)(A)(i)(I), conviction of
    a crime involving “moral turpitude” renders an alien
    inadmissible. In denying the application, the immigration
    authority1 also expressly determined that Petitioner was not
    entitled to a waiver under 
    8 U.S.C. § 1159
    (c), which allows
    waiver of certain bars to admissibility “for humanitarian
    purposes, to assure family unity, or when it is otherwise in the
    public interest.”
    Petitioner’s asylee status was later revoked pursuant to
    
    8 C.F.R. § 208.24
    (a), because he was no longer eligible for
    1
    W e use the term “immigration authority” to avoid confusion arising
    from the federal government’s reorganization of immigration agencies
    during the pendency of this case. See generally United States v. Juvenile
    Female, 
    566 F.3d 943
    , 949 (9th Cir. 2009) (describing the “dissolution of
    the Immigration and Naturalization Service (‘INS’), and the creation of
    the Department of Homeland Security (‘DHS’)”).
    PECHENKOV V . HOLDER                             5
    asylum after his conviction. Soon after revoking Petitioner’s
    asylee status, the immigration authority commenced removal
    proceedings against him. The Notice to Appear alleged that
    Petitioner had, after being admitted as a crewman, remained
    in the United States longer than permitted, making him
    removable under 
    8 U.S.C. § 1227
    (a)(1)(B).
    Petitioner then applied for withholding of removal, relief
    that is one of the two subjects of this petition for review.2 In
    2000, Petitioner filed a new application to adjust his status,
    including an application for waiver of inadmissibility. That
    application is the other subject of this petition.
    At a hearing in early 1999, Petitioner admitted the factual
    allegations in his Notice to Appear and conceded his
    removability. In 2005, the government added an additional
    basis of removability, arguing that Petitioner’s conviction
    was for an aggravated felony, making him removable under
    
    8 U.S.C. § 1227
    (a)(2)(A)(iii). Petitioner contested the
    additional basis of removability, but the IJ sustained the
    charge, finding expressly that Petitioner’s conviction
    qualified as an aggravated felony.
    In addressing Petitioner’s withholding of removal
    application, the IJ noted that 
    8 U.S.C. § 1231
    (b)(3), which
    provides for withholding of removal, does not apply to an
    alien who, “having been convicted by a final judgment of a
    particularly serious crime[,] is a danger to the community.”3
    2
    Petitioner also applied for asylum and protection under the Convention
    Against Torture, but he no longer seeks those forms of relief here.
    3
    For the purposes of withholding of removal, 
    8 U.S.C. § 1231
    (b)(3)(B)(iv) states that
    6                   PECHENKOV V . HOLDER
    After considering and weighing several factors, the IJ
    determined that Petitioner’s crime qualified as a “particularly
    serious crime” and that Petitioner was a danger to the
    community. For that reason, the IJ denied withholding of
    removal.
    Regarding the adjustment of status application, the
    government argued that Petitioner was ineligible to apply for
    such relief after his asylee status had been revoked. In
    response, Petitioner filed a short brief that the IJ construed as
    conceding ineligibility for adjustment of status. Nevertheless,
    Petitioner continued to argue that the revocation of his asylee
    status was constitutionally defective. Regarding that
    argument, the IJ’s final decision notes a lack of “jurisdiction
    to review the termination of the [Petitioner’s] asylum status.”
    Petitioner appealed to the BIA, which adopted the IJ’s
    opinion. Petitioner’s brief to the BIA did not challenge the
    aggravated felony finding or that ground of removability.
    In adopting the IJ’s opinion, the BIA reiterated that
    Petitioner was ineligible for withholding of removal because
    he had been convicted of a particularly serious crime. With
    respect to the application to adjust status, the BIA noted that
    it lacked jurisdiction to consider Petitioner’s constitutional
    an alien who has been convicted of an aggravated
    felony (or felonies) for which the alien has been
    sentenced to an aggregate term of imprisonment of at
    least 5 years shall be considered to have committed a
    particularly serious crime. The previous sentence shall
    not preclude the Attorney General from determining
    that, notwithstanding the length of sentence imposed,
    an alien has been convicted of a particularly serious
    crime.
    PECHENKOV V . HOLDER                         7
    arguments regarding the revocation of his asylee status.
    Petitioner timely seeks review, challenging (1) the BIA’s
    evaluation of the factors supporting the “particularly serious
    crime” finding that precluded withholding and (2) the
    constitutionality of the regulation under which his asylee
    status was revoked. Petitioner does not dispute that he is
    removable for having been convicted of an aggravated felony.
    At the outset, the government asserts that we lack
    jurisdiction over this petition, citing the jurisdiction-stripping
    provisions of the Illegal Immigration Reform and Immigrant
    Responsibility Act of 1996, Pub. L. No. 104-208, § 306, 
    110 Stat. 3009
    -546, 3009-607.              Specifically, 
    8 U.S.C. § 1252
    (a)(2)(C) provides:
    Notwithstanding any other provision of
    law (statutory or nonstatutory), . . . 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
    [among other crimes, an aggravated felony].
    (Emphasis added.) But subparagraph (D) of that same statute
    provides:
    Nothing in subparagraph . . . (C) . . . shall
    be construed as precluding review of
    constitutional claims or questions of law
    raised upon a petition for review filed with an
    appropriate court of appeals in accordance
    with this section.
    8                     PECHENKOV V . HOLDER
    Subparagraph (D), added by the REAL ID Act of 2005,
    restored our jurisdiction over “constitutional claims or
    questions of law,” even in cases involving aggravated felons.4
    See Ramadan v. Gonzales, 
    479 F.3d 646
    , 650 (9th Cir. 2007)
    (per curiam) (internal quotation marks omitted). We have
    described the cumulative effect of those two statutes as
    follows:
    With respect to asylum, withholding of
    removal, and CAT claims of a petitioner who
    was convicted of an offense covered by
    § 1252(a)(2)(C), we have jurisdiction to
    review the denial of an asylum application
    and to review the denial of withholding of
    removal and CAT relief when a petitioner
    raises questions of law, including mixed
    questions of law and fact, or constitutional
    claims. Morales v. Gonzales, 
    478 F.3d 972
    ,
    978–80 (9th Cir. 2007)[, abrogated on other
    grounds by Anaya-Ortiz v. Holder, 
    594 F.3d 673
    , 678 (9th Cir. 2010)]. Moreover, as to
    “factual issues, when an IJ does not rely on an
    alien’s conviction in denying CAT relief and
    instead denies relief on the merits, none of the
    jurisdiction-stripping provisions . . . apply to
    divest this court of jurisdiction.” Id. at 980;
    4
    The REAL ID Act was enacted May 11, 2005, but the jurisdiction-
    restoring provision applies to cases, such as this one, “in which the final
    administrative order of removal, deportation, or exclusion was issued
    before, on, or after the date of the enactment of this division.” REAL ID
    Act of 2005, Pub. L. No. 109-13, § 106(b), 
    119 Stat. 231
    , 311; accord
    Trejo-Mejia v. Holder, 
    593 F.3d 913
    , 915 (9th Cir. 2010) (order).
    PECHENKOV V . HOLDER                       9
    see also Arteaga v. Mukasey, 
    511 F.3d 940
    ,
    942 n.1 (9th Cir. 2007).
    Brezilien v. Holder, 
    569 F.3d 403
    , 410 (9th Cir. 2009)
    (ellipsis in original).
    That is, § 1252(a)(2)(C)’s jurisdictional bar is subject to
    two exceptions.      The first exception in the quoted
    text—relating to questions of law or constitutional claims—is
    an application of § 1252(a)(2)(D). See Morales, 
    478 F.3d at 978
    . The second exception applies only when, as stated
    above, an IJ denies relief on the merits, for failure to
    demonstrate the requisite factual grounds for relief, rather
    than in reliance on the conviction. See Lemus-Galvan v.
    Mukasey, 
    518 F.3d 1081
    , 1083 (9th Cir. 2008) (“If an IJ
    determines that an aggravated felony constitutes a
    ‘particularly serious crime,’ and denies withholding of
    removal under the CAT on the basis of the conviction,
    § 1252(a)(2)(C) bars our review of the denial of
    withholding.” (citing Unuakhaulu v. Gonzales, 
    416 F.3d 931
    ,
    937 (9th Cir. 2005))).
    As noted, Petitioner does not challenge that he is
    removable for having committed an aggravated felony, nor
    did he raise such a challenge before the BIA. Thus, unless an
    exception applies, we lack jurisdiction to review the denial of
    withholding. No exception applies in this case. Recently, we
    decided that a “particularly serious crime” determination is
    inherently discretionary and is to be reviewed under the
    abuse-of-discretion standard. Arbid v. Holder, No. 09-73211,
    
    2012 WL 5458045
    , *2–3 (9th Cir. Nov. 9, 2012) (per
    curiam). Thus, under Arbid, § 1252(a)(2)(D) cannot restore
    jurisdiction to review a “particularly serious crime”
    determination where, as here, the only challenge to that
    10                PECHENKOV V . HOLDER
    determination is that it incorrectly assessed the facts.
    Petitioner has not raised a constitutional or legal question in
    relation to the “particularly serious crime” determination;
    instead, he asks for a re-weighing of the factors involved in
    that discretionary determination. Petitioner’s opening brief
    supports this characterization of his petition by framing the
    issue this way: “The IJ and the BIA abused their discretion
    in the ‘particularly serious crime’ analysis.” (Emphasis
    added.)
    The second exception does not apply because the IJ in
    Petitioner’s case did not address the merits of his withholding
    claim. Instead, the IJ found Petitioner statutorily ineligible
    for that relief because the crime underlying his removability
    was particularly serious. Accordingly, we lack jurisdiction to
    review the “particularly serious crime” determination.
    By contrast, we do have jurisdiction over Petitioner’s
    constitutional arguments regarding his application to adjust
    status and the revocation of his asylee status. Those
    arguments raise constitutional claims and questions of law,
    and so fall squarely within the ambit of § 1252(a)(2)(D).
    “We review de novo the BIA’s conclusions on questions of
    law . . . .” Fregozo v. Holder, 
    576 F.3d 1030
    , 1034 (9th Cir.
    2009).
    Petitioner concedes that his asylee status was revoked
    pursuant to 
    8 C.F.R. § 208.24
    (a)(2), but argues that the
    regulation is constitutionally defective for usurping or
    misconstruing congressional authority. We disagree. That
    regulation simply states that the immigration authority “may
    terminate a grant of asylum” when “one or more of the
    conditions described in [
    8 U.S.C. § 1158
    (c)(2)] exist.” Thus,
    the challenged regulation, by its very terms, simply refers to
    PECHENKOV V . HOLDER                      11
    and incorporates the relevant statutory authority. Moreover,
    the statute, § 1158(c)(2), explicitly allows termination of
    asylum; in fact, the paragraph is titled “Termination of
    asylum.” See Fla. Dep’t of Revenue v. Piccadilly Cafeterias,
    Inc., 
    554 U.S. 33
    , 47 (2008) (“[S]tatutory titles and section
    headings are tools available for the resolution of a doubt
    about the meaning of a statute.” (internal quotation marks
    omitted)). Petitioner does not and cannot dispute that his
    conviction created one of the statutory conditions for
    revocation of asylee status. Specifically, § 1158(c)(2)(A) and
    (B) allow termination of asylum if the alien is no longer
    eligible for asylum under § 1158(b), and § 1158(b)(2)(A)(ii)
    and (B)(i) operate to deny asylum eligibility to an individual
    who has been convicted of an aggravated felony.
    Accordingly, it is beyond dispute that revocation of
    Petitioner’s asylee status was consistent with congressional
    intent.
    Petition DISMISSED in part and DENIED in part.
    GRABER, Circuit Judge, concurring.
    I agree that we lack jurisdiction to review the BIA’s
    "particularly serious crime" determination in this case. But
    I write separately to express my disagreement with our
    court’s interpretation of 
    8 U.S.C. § 1252
    (a)(2)(C).
    That statute provides: "no court shall have jurisdiction to
    review any final order of removal against an alien who is
    removable by reason of having committed" certain criminal
    12                      PECHENKOV V . HOLDER
    offenses, including aggravated felonies.1 (Emphasis added.)
    In my view, once we are satisfied that a given alien has been
    found "removable by reason of" conviction of a crime
    covered by § 1252(a)(2)(C), we lack jurisdiction to conduct
    further review of the "final order of removal," whether
    relating to asylum, withholding of removal, or CAT relief. In
    such cases, we have jurisdiction only over constitutional
    claims or questions of law, pursuant to § 1252(a)(2)(D). At
    least four of our sister circuits have adopted this textually
    based view of § 1252(a)(2)(C)’s jurisdiction-stripping
    provision. See, e.g., Constanza v. Holder, 
    647 F.3d 749
    ,
    753–54 (8th Cir. 2011) (per curiam); Saintha v. Mukasey,
    
    516 F.3d 243
    , 249–51 (4th Cir. 2008); Conteh v. Gonzales,
    
    461 F.3d 45
    , 62–63 (1st Cir. 2006); Alaka v. Att’y Gen. of
    U.S., 
    456 F.3d 88
    , 102 & n.24 (3d Cir. 2006).
    Unfortunately, we have created an additional, sometimes
    confusing, exception—what I will call the "on-the-merits"
    exception—that allows us to review more generally an on-
    the-merits denial of relief than when denial is predicated on
    ineligibility because of a criminal conviction. That exception
    1
    In its entirety, 
    8 U.S.C. § 1252
    (a)(2)(C) states:
    Notwithstanding any other provision of law (statutory or
    nonstatutory), including section 2241 of Title 28, 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.
    PECHENKOV V . HOLDER                     13
    appears limited to the Ninth Circuit and, in my view,
    interprets § 1252(a)(2)(C) incorrectly. Because the exception
    clearly does not apply to Petitioner, it ultimately is of no
    consequence to the outcome here. Nevertheless, I provide the
    following discussion in the hope that we may revisit our
    precedents in the future, in a case in which the exception
    affects the outcome.
    The "on-the-merits" exception rests on the "by reason of
    having committed a criminal offense" portion of
    § 1252(a)(2)(C). In Unuakhaulu v. Gonzales, 
    416 F.3d 931
    ,
    936 (9th Cir. 2005), we stated: "Alvarez-Santos [v. INS,
    
    332 F.3d 1245
    , 1247 (9th Cir. 2003),] holds that the ‘by
    reason of’ language of § 1252(a)(2)(C) ‘strips [this court]
    only of jurisdiction to review orders of removal predicated on
    commission or admission of a crime, not orders of removal
    not so predicated.’" In Alvarez-Santos, the alien was charged
    as removable on two independent grounds, only one of which
    was criminal and covered by § 1252(a)(2)(C). 
    332 F.3d at 1248
    . In that case, the IJ explicitly found that the alien had
    not been convicted of a crime and so rejected that ground of
    removability. 
    Id. at 1249
    . That is, § 1252(a)(2)(C), by its
    own terms, did not apply at all. In the circumstances,
    Alvarez-Santos cannot be said to have created an "exception"
    to that statute’s applicability.
    In Unuakhaulu, we took Alvarez-Santos a step further.
    The alien in that case, like the one in Alvarez-Santos, was
    charged as removable on two independent grounds, only one
    of which was criminal and covered by § 1252(a)(2)(C).
    Unuakhaulu, 
    416 F.3d at 933
    . But unlike in Alvarez-Santos,
    the IJ in Unuakhaulu sustained both grounds of removability.
    
    Id.
     Nevertheless, the IJ determined that the criminal offense
    underlying removability was not a "particularly serious
    14                 PECHENKOV V . HOLDER
    crime," so the alien was not barred from eligibility for
    withholding of removal or CAT relief. 
    Id.
     at 933–34; see
    also 
    8 U.S.C. § 1231
    (b)(3)(B)(ii) (withholding of removal not
    available to alien who, "having been convicted by a final
    judgment of a particularly serious crime[,] is a danger to the
    community of the United States"). Accordingly, the IJ
    considered the merits of those claims before denying relief.
    Unuakhaulu 
    416 F.3d at 934
    . On review, we reasoned that,
    because the IJ did not "explicitly" specify which ground of
    removability supported the order of removal, and because the
    denial of withholding and CAT relief was "on the merits"
    rather than premised on ineligibility due to the criminal
    conviction, § 1252(a)(2)(C) did not apply to strip jurisdiction.
    Id. at 936–37. Thus, in Unuakhaulu, we created an exception
    whereby an alien who is removable because of a
    § 1252(a)(2)(C) crime may still seek review in this court of
    fact-based questions that are not covered by § 1252(a)(2)(D).
    We further explained that exception in Morales v.
    Gonzales, 
    478 F.3d 972
    , 978–80 (9th Cir. 2007), abrogated
    on other grounds by Anaya-Ortiz v. Holder, 
    594 F.3d 673
    ,
    678 (9th Cir. 2010), and in Arteaga v. Mukasey, 
    511 F.3d 940
    , 942 n.1 (9th Cir. 2007). Although those cases go no
    farther than did Unuakhaulu, they contain statements that
    could be read to suggest an even broader rule. In Morales,
    we reiterated, correctly, that § 1252(a)(2)(D) restores
    jurisdiction over questions of law and constitutional claims.
    
    478 F.3d at 978
     ("Although we lack jurisdiction to review the
    IJ’s finding that [an alien] was removable, we have
    jurisdiction . . . to review the IJ’s denial of [the alien]’s
    application for withholding of removal to the extent that [the
    alien] raises questions of law, including mixed questions of
    law and fact, or constitutional claims." (emphasis added)
    (citing 
    8 U.S.C. § 1252
    (a)(2)(D)). We had jurisdiction over
    PECHENKOV V . HOLDER                      15
    the withholding claim in Morales because that claim
    presented "a question of law over which this court has
    jurisdiction pursuant to 
    8 U.S.C. § 1252
    (a)(2)(D)." 
    Id. at 980
    .
    We had jurisdiction over the CAT claim both because that
    claim involved a legal question, 
    id.
     (discussing "proper legal
    standard for CAT relief"), and because the facts of that case
    were similar to those in Unuakhaulu, 
    id.
     ("[W]hen an IJ does
    not rely on an alien’s conviction in denying CAT relief and
    instead denies relief on the merits, none of the
    jurisdiction-stripping provisions apply to divest this court of
    jurisdiction." (citations omitted)).
    Arteaga, on first read, seems to be broader, stating in a
    footnote:
    The government’s argument that we lack
    jurisdiction to review the BIA’s rulings on the issues
    of withholding and CAT relief has been heard and
    rejected by this court. See Morales v. Gonzales,
    
    478 F.3d 972
    , 980 (9th Cir. 2007) (noting that the
    jurisdiction-stripping provisions of 
    8 U.S.C. § 1252
    (a)(2)(C) apply to removal orders, and not to
    applications for asylum, withholding of removal, or
    CAT relief); 
    id.
     ("[A]s to our resolution of factual
    issues, when an IJ . . . denies [CAT] relief on the
    merits, none of the jurisdiction-stripping provisions
    apply[.]").
    
    511 F.3d at
    942 n.1 (alterations in original). But the text
    associated with that footnote claims jurisdiction under
    § 1252(a)(2)(D), and the facts of that case involved an on-the-
    merits denial of withholding and CAT relief. Id. at 943–44.
    Thus, Arteaga is no broader than Morales.
    16                PECHENKOV V . HOLDER
    In my view, Unuakhaulu and its progeny misread
    § 1252(a)(2)(C)’s "by reason of" phrase as applying to the
    order of removal, limiting the jurisdictional bar to cases in
    which the relevant conviction is the final reason for that
    order. But § 1252(a)(2)(C) applies to any order of removal
    "against an alien who is removable by reason of having
    committed" a relevant crime. (Emphasis added.) Thus, the
    only relevant question is whether an IJ has made a finding of
    removability because of a relevant conviction. Under my
    reading, then, the applicability of § 1252(a)(2)(C) is a
    straightforward inquiry: Was the alien charged with
    removability because of a relevant crime, and did the IJ
    correctly sustain that charge? If so, we lack jurisdiction over
    all questions not covered by § 1252(a)(2)(D).
    For these reasons, I urge the court to consider revisiting,
    in an appropriate case, our mistaken reading of
    § 1252(a)(2)(C). We have strayed from the statute and, in the
    process, seemingly created a circuit split.