Quinchia v. U.S. Att’y General, No 07-12248, (11th Cir.)
August 7, 2008
SILER, Anderson,
Hull
In Quinchia, the
petitioner sought review of the BIA’s finding that he did not meet the seven
years’ continuous lawful residence requirement for a discretionary waiver under
INA § 212(h); 8 USC § 1182(h). Quinchia had become a lawful permanent resident
in January of 1998 and was subsequently convicted of robbery in June of
2002. Thereafter, he traveled and was
paroled into the United States
after traveling in January of 2004. A Notice to Appear (NTA) was issued in May
of 2004.
Quinchia argued that his lawful residence began as of the
time he applied for adjustment of status, in April of 1997, rather than on
January of 1998 when he was actually granted lawful permanent resident status.
The BIA disagreed and his appeal was dismissed by a single board member in an
unpublished decision.
The Eleventh Circuit first examined whether it would apply Chevron deference to a non-precedential BIA
decision decided by a single member that did not rely on existing BIA or
federal court precedent. Joining the Second
and Ninth Circuits, the Eleventh Circuit found that such decisions do not indeed
merit Chevron deference. Rotimi
v. Gonzales, 473 F.3d 55 (2d Cir. 2007); Quintero v. Gonzales, 455 F.3d 1006 (9th Cir. 2006). The Court
distinguished cases in which it applied Chevron deference to non-binding BIA
decision decided by a sole member, stating that in those cases, the single
board member had relied on existing BIA or federal court precedent. Silva v. United States Att’y General, 448 F3d 1229 (11th Cir. 2006).
But that was not the case here.
Next, the Eleventh Circuit turned to the merits of Quinchia’s
appeal – whether he had met the seven years’ continuous lawful residence. The Court gave itself two options: decide the
issue itself, applying the lesser standard of deference under Skidmore v. Swift & Co., 323 US 134
(1944), or remand the case to the BIA for a three-member panel to decide the
case. The Eleventh Circuit agreed with the conslusion reached by the Second Circuit in Rotimi and chose the latter option, declining to consider
the merits of Quinchia’s appeal without first allowing the BIA to do so.
The 11th Cir joined 10 other circuits in finding no jurisdiction over sua sponte denials - its reasoning imitated the 8th circuit's reasoning in Tamenut v. Mukasey, __ F.3d __, 2008 WL 637617 (8th Cir. Mar. 11, 2008) (en banc), which found a lack of jurisdiction not based on 1252, but based on the absence of any meaningful standard against which to review the Board's denial.
A District Court judge sentenced an asylum-seeker to 9 months' imprisonment for entering the US with false documents, because he violated the terms of his supervision by being arrested for driving with a suspended license (b/c he did not pay a $25 fee to reinstate it after a DUI). The District Court said it was imposing the penalty because he was here without status and would lose at the BIA as he lost with the IJ. The 11th Cir found that an impermissible reason to increase his sentence.
Santamaria v. U.S. Atty Gen'l (11th Cir. 4/22/08) (sua sponte vacating earlier decision at 512 F.3d 1308 (11th Cir. 2008))
STORY (DCt), Edmondson, Dubina
The 11th Cir found that Colombian asylum applicant had suffered extreme mistreatment at hands of the FARC (counting the murder of her groundskeeper as persecution of her); found that 5 returns to Colombia did not show lack of subjective fear, where persecutions increased over time.
Alvarez-Acosta v. U.S. Atty Gen'l (11th Cir. 4/16/08)
TJOFLAT, Barkett, Kravitch
The CtApp found that earlier paraphernalia conviction - not alleged on current NTA - triggered jurisdiction-stripping provisions of 1252(a)(2)(C). Therefore, no jurisdiction over abuse-of-discretion argument as to IJ's denial of continuance for I-130 approval; and no liberty interest to support a DP claim, because it involved discretionary relief. In dicta, CtApp said that he wouldn't have been eligible for AOS anyway, because no waiver for paraphernalia.
Eleventh Circuit 
