Salama v. Holder , 355 F. App'x 761 ( 2009 )


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  •                                UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 08-1718
    MUSTAFA MOHAMED SALAMA,
    Petitioner,
    v.
    ERIC H. HOLDER, JR., Attorney General,
    Respondent.
    On Petition for Review of an Order of the Board of Immigration
    Appeals.
    Argued:   September 24, 2009                 Decided:   October 22, 2009
    Before TRAXLER, Chief Judge, HAMILTON, Senior Circuit Judge, and
    Mark S. DAVIS, United States District Judge for the Eastern
    District of Virginia, sitting by designation.
    Petition for review denied by unpublished per curiam opinion.
    ARGUED: Thomas A. Elliot, ELLIOT & MAYOCK, LLP, Washington,
    D.C., for Petitioner. James A. Hurley, UNITED STATES DEPARTMENT
    OF JUSTICE, Washington, D.C., for Respondent.        ON BRIEF:
    Fabienne Chatain, Thomas H. Tousley, ELLIOT & MAYOCK, LLP,
    Washington, D.C., for Petitioner.  Gregory G. Katsas, Assistant
    Attorney General, Stephen J. Flynn, Assistant Director, UNITED
    STATES DEPARTMENT OF JUSTICE, Office of Immigration Litigation,
    Washington, D.C., for Respondent.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Mustafa Mohamed Salama petitions for review of an order
    denying   him    an    adjustment    of    status.         Because    he    failed    to
    challenge the basis for the decision of the Board of Immigration
    Appeals and instead focused solely on the immigration judge’s
    decision, he has waived his challenge to the Board’s decision.
    Thus, we are compelled to deny Salama’s petition for review.
    I.
    Salama is a native of Egypt who entered the United States
    in 1978 on a nonimmigrant B-2 visa.                  In 1983, Salama’s status
    was adjusted to that of Lawful Permanent Resident (“LPR”) based
    on his marriage to a U.S. citizen.
    After obtaining LPR status, Salama was twice convicted on
    federal   charges.        In   1991,      Salama    was    convicted       on   federal
    counterfeiting charges, see 
    18 U.S.C. § 474
    (a), for which he was
    sentenced to a prison term of 27 months.                     In 2003, Salama was
    convicted in federal court for conspiracy to commit credit card
    fraud, see 
    18 U.S.C. § 1029
    (b)(2) and (c)(1)(A)(i), for which he
    was sentenced to five years of probation and required to pay
    restitution.
    In 2004, the Department of Homeland Security (“DHS”) sought
    to   remove     Salama   on    two   grounds       under    the     Immigration      and
    Nationality      Act     (“INA”):         (1)   that,       based     on    his    1991
    2
    counterfeiting          conviction,     Salama          had    been      convicted        of    an
    aggravated    felony       after      having       been       admitted        to   the    United
    States,     see      
    8 U.S.C. § 1227
    (a)(2)(A)(iii)                and       
    8 U.S.C. § 1101
    (a)(43)(R);         and   (2)     that,       based      on    the      1991   and    2003
    convictions, Salama had been convicted of two or more crimes of
    moral turpitude after having been admitted to the United States,
    see 
    8 U.S.C. § 1227
    (a)(2)(A)(ii).                       The immigration judge (“IJ”)
    determined    that       both   offenses          qualified         as   crimes      of    moral
    turpitude and that the 1991 conviction constituted an aggravated
    felony as well.           In accordance with these conclusions, the IJ
    adjudged Salama removable on both grounds charged by the DHS.
    To   escape       removal,     Salama       applied          to   have      his    status
    adjusted, once again, to that of LPR under section 245(a) of the
    INA.        See     
    8 U.S.C. § 1255
    (a).              Salama       also      requested
    cancellation       of    removal      under       INA    § 240A(a).            See   8    U.S.C.
    1229b(a).         The IJ denied Salama’s request for relief on both
    bases, and the Board of Immigration Appeals (“BIA”) affirmed.
    In his Petition for Review to this court, Salama challenged both
    determinations;          however,     at   oral         argument,        he    withdrew        his
    challenge to the BIA’s denial of cancellation of removal under
    section     240A(a)       of    the    INA.             Accordingly,          Salama’s         sole
    3
    challenge      before     this     panel      concerns       the    BIA’s    denial      of     an
    adjustment of Salama’s status. *
    II.
    In   order      to    adjust       his    temporary       status       to    that     of    a
    permanent      resident,         an    alien     must       demonstrate,         among     other
    things,       that   he    “is        admissible      to     the    United        States      for
    permanent residence.”             
    8 U.S.C. § 1255
    (a).                In other words, an
    alien must be admissible to the United States to be eligible for
    an   adjustment       of     status.            Under       the     INA,     an    alien        is
    inadmissible – and therefore ineligible for an adjustment of
    status    –    if    he    has    been     “convicted         of”    or     “admits      having
    committed . . . a crime involving moral turpitude.”                                 
    8 U.S.C. § 1182
    (a)(2)(A)(i)(I).                  Salama       does     not    dispute       the      IJ’s
    conclusion that both underlying convictions qualify as crimes of
    moral turpitude that potentially render him inadmissible under
    INA § 1182(a)(2)(A)(i)(I) and therefore unable to satisfy the
    *
    Salama requested two additional forms of relief that are
    not at issue in this court: withholding or deferral of removal
    under the Convention Against Torture (“CAT”), and withholding of
    removal under the INA, see 
    8 U.S.C. § 1231
    (b)(3)(A).      The IJ
    denied Salama’s request for withholding of removal under the INA
    but granted relief under the CAT.        The BIA affirmed both
    conclusions.    In his petition for review, Salama does not
    challenge the BIA’s denial of withholding of removal.
    4
    admissibility      requirement          for    an    adjustment    of     status      under
    § 1255(a).
    Thus, Salama is down to his last resort –- asking for a
    discretionary      waiver          of    inadmissibility.              See     
    8 U.S.C. § 1182
    (h)(1)(B).              The       INA    affords     the    Attorney          General
    discretion   to    grant,          in   certain      circumstances,       a    waiver    of
    inadmissibility based on hardship.                    Section 1182(h) permits the
    Attorney General, “in his discretion, [to] waive the application
    of subparagraph[] (A)(i)(I),” which classifies as inadmissible
    any alien who has committed a crime of moral turpitude, for an
    alien with a spouse, child or parent who is a citizen or LPR and
    would suffer “extreme hardship” because of “the alien’s denial
    of   admission.”         
    8 U.S.C. § 1182
    (h)(1)(B).         Salama       sought    a
    hardship waiver based on the negative effect his removal would
    presumably have on his two daughters who are American citizens
    residing in the United States.
    Although     an        inadmissibility           waiver     is    ultimately        a
    discretionary      form       of    relief,         Congress    imposed       eligibility
    limitations:      “No waiver shall be granted under this subsection
    in the case of an alien who has previously been admitted to the
    United   States     as       an    alien      lawfully    admitted      for    permanent
    residence if . . . since the date of such admission the alien
    has been convicted of an aggravated felony . . . .”                                
    8 U.S.C. § 1182
    (h) (emphasis added).                   Based on the foregoing language,
    5
    the IJ concluded that Salama was barred from receiving a waiver
    of inadmissibility.           The IJ ruled that when Salama adjusted his
    status to that of a LPR in 1983, it was the equivalent of having
    been   admitted    as    a    LPR   into      the    United   States    from   abroad.
    Because Salama was convicted of a felony after 1983, the IJ
    reasoned    that    § 1182(h)           precluded       him     from     receiving    a
    discretionary hardship waiver of inadmissibility:
    Respondent adjusted his status to that of a legal
    permanent resident in 1983 based on his marriage to a
    United States citizen.    While Respondent argues that
    he was never admitted because he became a legal
    permanent resident through adjustment of status, this
    argument is erroneous. According to INA § 101(a)(20),
    “lawfully admitted for permanent residence” is defined
    as “the status of having been accorded the privilege
    of residing permanently in the United States as an
    immigrant in accordance with the immigration laws,
    such status not having changed.”     Respondent, having
    obtained the privilege of residing permanently in the
    United States, has been admitted to the United States.
    During pleadings, Respondent conceded . . . that he
    had been convicted of an aggravated felony after
    admission . . . . Respondent is therefore ineligible
    for adjustment of status and a waiver pursuant to
    [§ 1182(h)] because he is an alien previously admitted
    to the United States as an alien lawfully admitted for
    permanent residence who, since the date of such
    admission, has been convicted of an aggravated felony.
    J.A. 143 (citations omitted).
    Although the BIA affirmed, it did so on expressly different
    grounds, eschewing the IJ’s reasoning that equated the concepts
    of   “admission”    as       an   LPR   and       “adjustment   of     status.”      See
    generally Aremu v. Dep’t of Homeland Security, 
    450 F.3d 578
    , 581
    (4th Cir. 2006) (explaining that an adjustment to status differs
    6
    from an admission as an LPR because “such a change in status
    can[not] be characterized as an ‘entry’ into the United States”)
    (internal quotation marks omitted).         Instead, the BIA concluded
    that because Salama was not seeking admission into the United
    States, he was not eligible to seek a hardship waiver under
    § 1182(h), which is available only for an alien who can show
    that the “denial of admission would result in extreme hardship”
    to   the   alien’s   citizen-spouse   or   child.   
    8 U.S.C. § 1182
    (h)
    (emphasis added).      The BIA explained that
    a [hardship] waiver . . . can only be granted to an
    alien who establishes to the satisfaction of the
    Attorney General that a “denial of admission” will
    cause extreme hardship to a qualifying relative;
    [§ 1182(h)] does not by its terms give the Attorney
    General power to waive inadmissibility for an alien
    who can show only that a denial of adjustment of
    status will cause such hardship.    [Salama] is present
    in the United States and is applying for adjustment of
    status before an immigration judge; he does not seek
    “admission,” that is, “lawful entry into the United
    States after inspection and authorization” . . .
    within the meaning of [§ 1101(a)(13)(A)]. . . . [T]he
    fact that [Salama] does not seek (or stand in jeopardy
    of being denied) “admission,” as that term is defined
    by [§ 1101(a)(13)(A)], means that his application for
    a   waiver  of   inadmissibility  would   have  to   be
    pretermitted, albeit for reasons different from those
    relied upon by the Immigration Judge.
    J.A. 35.
    III.
    In his petition for review to this court, Salama argues
    that the statutory bar to a waiver of inadmissibility applies by
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    its plain language only to aliens admitted from abroad into the
    United States as LPRs, as opposed to those who, having arrived
    and been admitted as non-immigrant visitors, adjusted to LPR
    status.        See 
    8 U.S.C. § 1182
    (h) (“No waiver shall be granted
    under this subsection in the case of an alien who has previously
    been admitted to the United States as an alien lawfully admitted
    for    permanent       residence        if    .        .    .    since     the    date    of     such
    admission the alien has been convicted of an aggravated felony .
    . . .”) (emphasis added).                    Salama’s argument is based on dual
    bases:    (1)       that    the    waiver     bar          in    section    1182(h)      expressly
    precludes only aggravated felons who were previously admitted
    into the United States as LPRs; and (2) that the term “admitted”
    into     the    United        States     is    wholly             distinct       from    “adjusted
    status.”        According to Salama, the IJ misapplied the § 1182(h)
    bar by “amalgamating” the concepts of “admission” as an LPR into
    the    United        States       and   “adjustment              of    status.”          Brief     of
    Petitioner at 15.                 Salama’s argument, therefore, is directed
    entirely       at    the    decision     of        the      IJ    applying       the    aggravated
    felony bar of § 1182(h) to render Salama ineligible to seek a
    hardship waiver.
    The Attorney General contends that Salama failed in his
    opening    brief       to    challenge        or       address        in   any   way     the   BIA’s
    decision       and    thereby       waived     his          challenge       to    it.      We     are
    constrained to agree.               Unlike the IJ, the BIA did not apply the
    8
    § 1182(h) bar based on Salama’s aggravated felony; rather, the
    BIA determined that Congress did not provide the hardship waiver
    for an inadmissible alien seeking an adjustment of status.                           In
    his opening brief, Salama simply failed to address the BIA’s
    decision or its rationale.
    This court follows the “well settled rule that contentions
    not raised in the argument section of the opening brief are
    abandoned.”      See United States v. Al-Hamdi, 
    356 F.3d 564
    , 571
    n.8    (4th   Cir.    2004);    see   also      Fed.     R.    App.   P.   28(a)(9)(A);
    Edwards v. City of Goldsboro, 
    178 F.3d 231
    , 241 n.6 (4th Cir.
    1999).    We overlook this rule only in those rare circumstances
    where we conclude, in our discretion, that the application of
    the rule would result in “a miscarriage of justice.”                         A Helping
    Hand, LLC v. Baltimore County, Md., 
    515 F.3d 356
    , 369 (4th Cir.
    2008) (internal quotation marks omitted).
    Salama    reads    the    decision           of   the    BIA   as   resting   on
    alternative grounds – one being the rationale adopted by the IJ
    that    Salama   is    ineligible     for       a   waiver     by   operation   of   the
    aggravated felony bar in § 1182(h) and the other being the BIA’s
    additional rationale that a waiver of inadmissibility is simply
    unavailable to someone seeking an adjustment of status.                          Salama
    acknowledges that only the former rationale was addressed in his
    opening brief; his challenge to the latter rationale appears
    9
    only in his reply brief.         Nevertheless, Salama contends that his
    argument was sufficient to avoid waiver.
    We do not read the BIA’s denial of an adjustment of status
    to rest on alternative grounds.               The BIA clearly did not embrace
    the IJ’s analysis, explaining that Salama was not entitled to an
    adjustment of status “for reasons different from those relied
    upon by the Immigration Judge.”               J.A. 35.     But, even if the BIA
    did rely on alternative bases, we fail to see how this aids
    Salama.      As    he   acknowledges,      Salama    focused    solely        on   the
    rationale of the IJ in his opening brief and failed to address
    the BIA’s reasoning.           See Ngarurih v. Ashcroft, 
    371 F.3d 182
    ,
    188 (4th Cir. 2004) (explaining that where the BIA issues its
    own decision rather than solely adopting the decision of the
    immigration       judge,   the   court     of    appeals    reviews     the    BIA’s
    decision).      The fact that he developed an argument in his reply
    brief does not cure his failure to do so in the opening brief.
    See Yousefi v. USINS, 
    260 F.3d 318
    , 326 (4th Cir. 2001) (per
    curiam).
    Moreover, we decline to exercise our discretion to overlook
    the    waiver     of    this   argument.         Salama     suggests    that       the
    government would suffer no prejudice were we to consider the
    argument in his reply brief, which may or may not be true, but
    he    has   neither     explained   why       the   BIA’s    decision    was       not
    discussed in his opening brief nor why our refusal to exercise
    10
    our discretion will result in manifest injustice.       See Helping
    Hand, 
    515 F.3d at 369
     (refusing to overlook waiver where the
    appellant “has not even explained why it failed to raise these
    arguments   earlier,   let   alone   explained   why,   absent   our
    consideration, a miscarriage of justice would result”).
    PETITION FOR REVIEW DENIED
    11