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. 

Read decision here:

Facts: In 1993, convicted of possessing paraphernalia; removed in 1997, reentered EWI; placed into proceedings again in 2001.  Unclear why he wasn't reinstated under INA 241(a)(5).  Married USC, asked for a continuance to get I-130 approved; IJ refused, BIA affirmed.

1.  Jurisdiction is stripped by 1252(a)(2)(C), even though NTA only charged him as PWA - no discussion of contrary authority.  In FN, refused to extend the CtApp's 1252(a)(2)(B) decision to 1252(a)(2)(C).

   We distinguish Alverez’s case, which is outside our jurisdiction under subsection (C) of §1252(a)(2), from our decision in Zafar v. U.S. Att’y Gen., 461 F.3d 1257 (11th Cir. 2006), which dealt with a denial of a motion for a continuance that was in our jurisdiction under subsection (B) of the same section. We decline to extend our previous decision to the petitions of aliens, like Alvarez, who are “removable by virtue of having committed” a drug-related crime, as we discuss further in note 13. 8 U.S.C. § 1252(a)(2)(C).

FN13 Although Alvarez was most recently in removal proceedings for entering the United States without inspection or parol, he has already been deported once for a drug-related conviction, and therefore he still “is removable by reason of having committed a criminal offense” covered in 8 U.S.C. § 1182(a)(2)(A)(i)(II). 8 U.S.C. § 1252(a)(2)(C). As a practical matter, an alien who was deported for a drug-related conviction and who then sneaked back into the country falls within jurisdiction limitations of § 1252(a)(2)(C): the motivation behind Alvarez’s clandestine reentry undoubtedly was to avoid removal “by reason of having committed a criminal offense” “related to a controlled substance.” See 8 U.S.C. § 1182(a)(2)(A)(i)(II). 

2.  Rejects the argument that paraphernalia is not under 1182(a)(2), because it doesn't relate to any specific controlled substance.

   He now contends, however, that possession of drug paraphernalia is not a criminal violation “relating to a controlled substance,” because he could have used the drug paraphernalia he possessed with any controlled substance, not “a” specific controlled substance. Petitioner’s Reply Br. at 5.

   We find his pencil-thin interpretation of § 1182(a)(2), which speaks in broad strokes, unpersuasive. See 8 U.S.C. § 1182(a)(2)(A)(I) (“[A]ny alien convicted of . . . a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance . . . is inadmissible”). Moreover, as a practical matter, it is unfathomable that Congress would exclude from our jurisdiction appeals brought by those convicted of possessing, say, a cocaine freebase kit, but not those convicted of possessing scales, razor blades, and plastic baggies, simply because the latter paraphernalia provide more versatility in violating a law “relating to a controlled substance."

3.  Argument that IJ erred in denying continuance is not a question of law under 1252(a)(2)(D).

   Alvarez argues that the IJ abused her discretion by failing properly to weigh the factual scenario he presented. Such a garden-variety abuse of discretion argument – which can be made by virtually every alien subject to a final removal order – does not amount to a legal question under § 1252(a)(2)(D). If it did, then the remainder of § 1252(a)(2), which exempts certain petitions from our jurisdiction, would be meaningless. Alvarez does not argue that the immigration judge failed to apply the correct legal standard.

4.  In dicta, notes that he's ineligible for a 212(h) waiver anyway - note that Judge Easterbrook ruled to the contrary in Escobar Barraza v. Mukasey.

   As a side note, Alvarez’s case is further contrasted with Bull’s in that Alvarez is not eligible for a waiver of his ineligibility for adjustment of status under 8 U.S.C. § 1182(a)(2)(A)(i)(II), due to his conviction of a crime “relating to a controlled substance.” See 8 U.S.C. 1182(h) (allowing, in certain circumstances, for a waiver of ineligibility under § 1181(a)(2)(A)(i)(II), “insofar as it relates to a single offense of simple possession of 30 grams or less of marijuana”).

5.  Because relief is discretionary, no "liberty interest" to support Petitioner's Due Process claim.

   Alvarez argues that he was deprived of a liberty interest in not being removed from the United States without due process, in violation of the Fifth Amendment. The relief he sought here, however, was a continuance of his removal proceeding so that he might pursue an adjustment of status. Both forms of relief – a continuance of removal proceedings and an adjustment of status – are discretionary; as such, he was deprived of no liberty interest, see Mejia Rodriguez v. Reno, 178 F.3d 1139, 1146-1148 (11th Cir. 1999), and he presents no substantial constitutional claim that gives us jurisdiction under § 1252(a)(2)(D). 

[but why couldn't the claim be raised under 1229a(b)(4)(B)? - CR] 

Barkett, dissenting

   I agree with those circuits that have found that we have jurisdiction to review claims in which the alien has been found removable for a reason other than a criminal conviction that would potentially bar judicial review. See Hernandez-Barrera v. Ashcroft, 373 F.3d 9, 20 (1st Cir. 2004); Lemus- Rodriguez v. Ashcroft, 350 F.3d 652, 654-55 (7th Cir. 2003); Alvarez-Santos v. INS, 332 F.3d 1245, 1253 (9th Cir. 2003); Yousefi v. INS, 260 F.3d 318, 325 (4th Cir. 2001).

   Nonetheless, on the merits of Alvarez-Acosta’s petition, I would deny relief on the basis that the Immigration Judge did not abuse her discretion in denying Alvarez-Acosta’s motion for a continuance of the removal proceedings.

Atty: Juan Carlos Gomez, Miami, FL

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