Khan v. Mukasey (7th Cir. 2/25/08)

KANNE Bauer Ripple

In procedural fairness claim arising from a 212(h) waiver, the 7th Cir held that (a) as a due process argument, it would fail because there is no protected liberty interest in discretionary relief, but (b) it analyzed the procedural claim under 1229a(b)(4)(B), despite Petitioner's reliance on the constitution.  On the merits, the claim failed for lack of prejudice. 

Read decision here:

Briefs

Facts: Petitioner (w/ bank fraud conviction) first filed false asylum application, claiming to be gay - he says because his prior attorney told him to say that (also ordered removed in absentia, and case reopened, due to that atty).  Subsequently filed 2nd asylum app.  Then got married, I-130 approved, applied for AOS and withdrew asylum apps.  No warnings about frivolous asylum apps, so not barred from relief.  In conducting hearing, Petitioner was about to call his wife to testify, then IJ went off the record, and he never called her.  IJ denied the waiver, finding no extreme hardship (though stepdaughter is autistic and asthmatic) - but stating that he'd deny in exercise of discretion, due to bank fraud and previous false claim. 

1.  Noted jurisdiction to consider whether proper standard was applied to 212(h) adjudication

   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).

2.  Found that Petitioner only asked the Court to re-weigh equities, for which Court had no jurisdiction.  Only possible jurisdiction was over procedural due process claim.

3.  Reminds petitioners to argue on statutory, not constitutional, grounds.

   We have repeatedly reminded aliens claiming constitutional violations that immigration proceedings that meet statutory and regulatory standards comport with due process, and, as such, aliens are better-served by arguing instead that immigration 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 constitutional 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).

4.  Noted that as a constitutional due process argument, it would fail, because adjustment is discretionary - but then proceeded to analyze case on statutory due process grounds, which is viable nonetheless.

   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 dueprocess 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 discretionary 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 dueprocess claim.

   We will nevertheless evaluate Khan’s “due process” argument as a claim that he did not receive a fair immigration hearing. See, e.g., Mohammad Hussain, 505 F.3d at 781.

5.  Statutory fairness claim fails for lack of prejudice 

   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.

Atty: Rekha Sharma-Crawford

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