Mohamed Tahar Benaouicha v. ERIC H. HOLDER , J R ., Attorney General of the United States

The Honorable Theresa L. Springmann, United States District Œ
Judge for the Northern District of Indiana, sitting by designa-
tion.
In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3083
M OHAMED T AHAR B ENAOUICHA ,
Petitioner,
v.
E RIC H. H OLDER , J R ., Attorney General
of the United States,
Respondent.
Petition for Review from an Order of
the Board of Immigration Appeals.
No. A077-862-269
A RGUED F EBRUARY 12, 2010—D ECIDED A PRIL 6, 2010
Before E ASTERBROOK , Chief Judge, H AMILTON , Circuit
Judge, and S PRINGMANN , District Judge.Œ
H AMILTON , Circuit Judge. The Board of Immigration
Appeals upheld an immigration judge’s order that peti-

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2 No. 09-3083
8 U.S.C. § 1252(a)(2)(B)(i) ordinarily precludes judicial review 1
of judgments regarding the granting of relief under section
1229b. However, a narrow exception is made under 8 U.S.C.
§ 1252(a)(2)(D) for constitutional questions or questions of law
related to a grant or denial of a section 1229b cancellation of
removal. Because petitioner conceded all relevant facts, the
only questions are questions of law, so the exception applies.
tioner Mohamed Tahar Benaouicha be removed from
the United States pursuant to 8 U.S.C. §§ 1227(a)(1),
1227(a)(1)(C)(i), and 1227(a)(2)(A)(i). Petitioner conceded
the facts underlying the charges of removal, but he
argued that he was eligible for cancellation of removal as
a battered spouse under 8 U.S.C. § 1229b(b)(2)(A). He
contends in his petition for review that the BIA erred by
ordering him removed without allowing him to demon-
strate that he was a person of good moral character
under the third prong of that statute. We deny the peti-
tion for review.
This court has jurisdiction under 8 U.S.C. § 1252. In1
general, we review the BIA’s legal findings de novo. See
Gaberov v. Mukasey, 516 F.3d 590, 594 (7th Cir. 2008). We
also give Chevron deference to the BIA’s interpretations
of ambiguous statutes, see Draganova v. INS, 82 F.3d 716,
720 (7th Cir. 1996), citing Chevron U.S.A. Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837, 842-45 (1984),
though there is no ambiguity here.
On September 29, 2000, petitioner Benaouicha was
admitted into the United States from Algeria to attend an
airline training academy in Texas. He never enrolled. On

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No. 09-3083 3
October 1, 2003, petitioner was convicted in Iowa under
18 U.S.C. § 1001(a)(2) for falsely applying for a Social
Security card. He served a six-month sentence. Upon his
release from federal custody, the Department of Home-
land Security sought petitioner’s removal under 8 U.S.C.
§ 1227(a)(1)(C)(i) as a non-immigrant who failed to
comply with the conditions of his non-immigrant status
and under 8 U.S.C. § 1227(a)(1)(A) as an alien inad-
missible at the time of his entry. DHS later added a charge
against Benaouicha under 8 U.S.C. § 1227(a)(2)(A)(i) for
removal of an alien who was convicted of a crime
of moral turpitude committed within five years of admis-
sion and for which a sentence of one year or longer could
have been imposed.
Petitioner admitted the factual allegations on which the
DHS’s charging documents were based and conceded his
removability on all three charges. However, he sought
adjustment of his status based on his marriage to a United
States citizen. On January 20, 2005, while his removal
proceedings were pending, petitioner was charged with
and pled guilty to battery under Ind. Code § 35-42-2-1,
receiving a one-year suspended sentence and one year
of probation. (We are informed that the victim of the
battery was petitioner’s wife.) On February 3, 2006, peti-
tioner requested a continuance of his immigration
hearing because his marriage had dissolved and his I-360
petition—a petition to classify him as a battered or
abused spouse of a United States citizen—filed with
Citizenship and Immigration Services was still pending.
The immigration judge permitted several continuances
while his I-360 petition was under review. His petition

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4 No. 09-3083
was then denied by the Vermont Services Center.
Petitioner appealed that decision to the Administrative
Appeals Office and then to the BIA, although the
Vermont Services Center has not yet tendered the
appeal to the BIA. Ultimately, although petitioner’s
appeal of the denial of his I-360 petition was still
pending, on November 20, 2008, the immigration judge
denied his request for a continuance, determined that
he was ineligible for cancellation of removal under the
abused spouse provision in 8 U.S.C. § 1229b(b)(2)(A),
and ordered him removed.
There is no question that petitioner is removable under
8 U.S.C. §§ 1227(a)(1), 1227(a)(1)(C)(i), and 1227(a)(2)(A).
Petitioner has conceded the facts underlying the
charges. He did not possess valid entry documents
when he entered the country. He did not maintain the
status under which he was admitted. And he was con-
victed for a crime of moral turpitude within five years of
entry. A.R. 90, 110-11. He argues, however, that he is
eligible for cancellation of removal due to special cir-
cumstances because he is an abused former spouse of
a United States citizen. The provision under which peti-
tioner seeks cancellation of his removal, 8 U.S.C.
§ 1229b(b)(2), would permit the Attorney General to
cancel removal if petitioner were able to demonstrate
each of the following five elements, which we para-
phrase for clarity as applied to this case:
(i) that he has been battered or subjected to extreme
cruelty by a spouse who is or was a United States
citizen;

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No. 09-3083 5
Petitioner failed to raise any challenge in his opening brief 2
to the BIA’s conclusion that he is deportable under section
1227(a)(2)(A)(i). On reply he argues that he preserved the
argument by including the full text of 8 U.S.C. § 1229b(b)(2)(A)
and by referencing a provision that could provide waiver to
crimes of moral turpitude. Such unexplained quotations and
citations are not sufficient to preserve an argument. In any
event, the provision on which petitioner claims to rely for
(continued...)
(ii) that he has been physically present in the United
States for a continuous period of not less than three
years preceding the date of his application;
(iii) that he has been a person of good moral charac-
ter during such period;
(iv) that he is not deportable under sections
1227(a)(1)(G), 1227(a)(2), 1227(a)(3), or 1227(a)(4), and
has not been convicted of an aggravated felony; and
(v) that his removal would result in extreme hard-
ship to him, his child, or his parent.
See 8 U.S.C. § 1229b(b)(2)(A).
Petitioner focuses on the third of these requirements,
“good moral character.” He argues that the immigra-
tion judge and the BIA should have given him the oppor-
tunity to demonstrate that he could satisfy that prong,
despite his convictions for fraud and battery. But his
argument fails before it begins because petitioner con-
ceded that he is deportable under section 1227(a)(2)(A)(i)
for having been convicted of a crime of moral turpitude. 2

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6 No. 09-3083
(...continued) 2
such an argument—8 U.S.C. § 1182(h)(1)(C)—would not assist
him. It applies to aliens who would otherwise be inadmissible
or ineligible for visas, not to aliens such as petitioner, who
were admitted but are subject to deportation under 8 U.S.C.
§ 1227.
Also, there was no need for the BIA to address the good 3
character issue because it would not have affected the outcome.
Any opinion on the issue would have been only advisory. See
Immigration and Naturalization Service v. Bagamasbad, 429 U.S. 24,
25-26 (1976) (summarily reversing circuit court’s order to BIA
to make findings on issues that did not need to be addressed
to resolve case).
Because he is deportable under section 1227(a)(2)(A)(i), he
cannot meet the fourth prong of section 1229b(b)(2)(A)(iv).
Even if, despite the facts recounted above, he might
convince the government that he is of good moral character
under the third prong, he would remain ineligible for
cancellation of removal under the abused spouse provi-
sions. He must meet all five of the requirements to be
eligible for cancellation of removal as a battered spouse.
He cannot do so. 3
To the extent petitioner attempts to appeal from the
CIS’s decision denying his I-360 visa petition or seeks
some relief from the apparent failure of the Vermont
Service Center to tender his appeal of the denial to the
BIA, his attempt fails for want of jurisdiction. The denial
of petitioner’s I-360 visa petition and his appeal from
that decision did not occur within the context of the
removal proceedings before the immigration judge that

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No. 09-3083 7
are now before this court. There is no final administra-
tive decision regarding the visa application. In any
event, the visa application has no effect on the separate
removal order that we have jurisdiction to review under
8 U.S.C. § 1252.
The petition for review of the decision by the Board of
Immigration Appeals is denied.
4-6-10

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