05-6055-ag Maiwand v. Gonzales UNITED STATES COURT OF APPEALS 1 FOR THE SECOND CIRCUIT 2 August Term, 2006…

05-6055-ag
Maiwand v. Gonzales
UNITED STATES COURT OF APPEALS 1
FOR THE SECOND CIRCUIT 2
August Term, 2006 3
(Argued: March 21, 2007 Decided: September 11, 2007 4
Errata Filed: September 27, 2007) 5
Docket No. 05-6055-ag 6
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MOHAMMAD HOMAYUN MAIWAND, 8
Petitioner, 9
- v - 10
ALBERTO R. GONZALES, Attorney General, 11
Respondent. 12
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Before: SACK, B.D. PARKER, and HALL, Circuit Judges. 14
Petition for review of a decision of the Board of 15
Immigration Appeals denying the petitioner's motion to terminate 16
removal proceedings based on his refugee status and denying his 17
applications for a waiver of inadmissibility and relief under the 18
Convention Against Torture. 19
Petition denied in part and dismissed in part. 20
MICHAEL P. DIRAIMONDO, DiRaimondo & 21
Masi, LLP (Marialaina L. Masi, Mary 22
Elizabeth Delli-Pizzi, Stacy A. Huber, 23
of counsel), Melville, NY for 24
Petitioner. 25
PAPU SANDHU, Office of Immigration 26
Litigation, Department of Justice (Peter 27
D. Keisler, Assistant Attorney General, 28
of counsel), Washington, DC for 29
Respondent. 30

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2
SACK, Circuit Judge: 1
Mohammad Homayun Maiwand, a native and citizen of 2
Afghanistan, petitions for review of a decision by the Board of 3
Immigration Appeals ("BIA") denying 1) his application for a 4
waiver of inadmissibility under section 212(c) of the Immigration 5
and Nationality Act ("INA"), 8 U.S.C. § 1182(c); 2) his request 6
for relief pursuant to regulations implementing the United 7
Nations Convention Against Torture and Other Cruel, Inhuman or 8
Degrading Treatment or Punishment, adopted Dec. 10, 1984, S. 9
Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 85 ("CAT"); and 3) 10
his motion to terminate the removal proceedings against him. In 11
re Mohammad Homayan Maiwand, No. A 28 906 603 (B.I.A. Jan. 29, 12
2004), aff'g No. A 28 906 603 (Immig. Ct. N.Y. City July 22, 13
2002). 14
Maiwand contests the BIA's denial of section 212(c) 15
relief, but his arguments raise no constitutional claim or 16
question of law. We are therefore without jurisdiction to review 17
the BIA's decision in that regard. To that extent, we dismiss 18
the petition. We also dismiss the petition insofar as it asks us 19
to review the correctness of the IJ's fact-finding regarding 20
Maiwand's CAT claim. To the extent Maiwand argues that the IJ 21
erred in assessing what evidence could satisfy his burden of 22
proof under the CAT regulations, we find the argument to be 23
without merit. 24
Maiwand's challenge to the third part of the BIA's 25
decision is based on his argument that because he entered the 26

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1 On March 1, 2003, the Immigration and Naturalization
Service was reconstituted as the Bureau of Immigration and
Customs Enforcement ["ICE"] and the Bureau of U.S. Citizenship
and Immigration Services, both within the Department of Homeland
Security. Because the rulings at issue in this case were made
when the agency was still the INS, we refer to it as the INS in
this opinion.
3
country as a refugee, the BIA is statutorily prohibited from 1
ordering his removal without first cancelling that status. 2
Although this is a question of law that we have jurisdiction to 3
review, we conclude that the BIA's interpretation of the relevant 4
statutes and regulations are reasonable. To that extent, we deny 5
the petition. 6
BACKGROUND 7
According to Maiwand's testimony before Immigration 8
Judge ("IJ") Alan A. Vomacka, Maiwand is a member of the Mohummed 9
Ziy monarchy, which ruled Afghanistan for about two hundred years 10
prior to the 1980s. In 1988, after the Ziy family was overthrown 11
by the Soviet Union, Maiwand escaped with his wife Fazila to the 12
United States. He was accorded refugee status in 1990. In 1992, 13
the INS1 granted his application for adjustment of status and, 14
retroactive to 1991, made Maiwand a legal permanent resident 15
("LPR"). Fazila became a United States citizen in 1997. Maiwand 16
and Fazila have three children born in the United States in 1990, 17
1992, and 1994, respectively. They are United States citizens. 18
In 1993, Maiwand, in exchange for $5,000, introduced an 19
Afghani friend, who said he wanted to purchase heroin, to another 20
friend who Maiwand knew was selling heroin. Maiwand was charged 21
by the State of New York with, and pled guilty to, second degree 22

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4
criminal sale of a controlled substance. Maiwand's conviction 1
subjected him to deportation because it "relat[ed] to a 2
controlled substance." 8 U.S.C. § 1251(a)(2)(B)(i) (1994) 3
(current version at 8 U.S.C. § 1227). The INS issued an order to 4
show cause in 1994. Maiwand appeared before an IJ, conceded 5
removability, attempted to secure refugee status through his 6
first asylum application, and applied for relief under INA § 7
212(c). The IJ found Maiwand ineligible for both forms of 8
relief. Maiwand's case then began a convoluted journey through 9
the immigration agency and the federal courts, recounted at 10
length in In re Mohammad Homayan Maiwand, No. A 28 906 603 11
(B.I.A. June 23, 2000). As relevant to this petition, the BIA 12
remanded Maiwand's case to the IJ in 2000 to allow the IJ to 13
reconsider Maiwand's application for section 212(c) relief and 14
any other relief that might have been available as a result of 15
the amount of time that had passed since the IJ had last 16
considered Maiwand's applications. See id. 17
On remand, the IJ denied Maiwand's application for a 18
waiver of inadmissibility pursuant to section 212(c), in large 19
part because new testimony by Maiwand before the IJ convinced the 20
IJ that Maiwand's earlier testimony falsely minimized his 21
involvement in the heroin transaction that led to his 1993 22
conviction. In light of the new information and the IJ's 23
corresponding doubts about Maiwand's credibility, the IJ decided 24
not to exercise the Attorney General's discretion delegated to 25
the IJ to grant Maiwand a section 212(c) waiver. 26

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5
The IJ also denied Maiwand's application for CAT 1
relief. The judge recognized that the Afghan government might be 2
unable to protect Maiwand from the violent acts of rogue elements 3
in the country. The IJ nonetheless found that Maiwand had failed 4
to show a "probability that [he] would be taken into custody by 5
the government under the present situation in Afghanistan [or] a 6
probability that if he were taken into custody by some other 7
group, it would be with the acquiescence of the government." 8
Oral Decision Tr., dated July 22, 2002, at 6. In sum, the IJ 9
found, Maiwand had "not established a probability of being 10
tortured in Afghanistan." Id. 11
Maiwand appealed to the BIA, which affirmed the IJ's 12
denial of relief under both section 212(c) and CAT. Maiwand also 13
filed a motion asking the BIA to terminate the proceedings based 14
on the theory that as a refugee he could not be removed from the 15
country. The BIA denied this motion, reasoning that once Maiwand 16
adjusted his status from that of refugee to that of an LPR, his 17
previous refugee status provided no basis for terminating removal 18
proceedings. 19
Maiwand petitions for review. 20
DISCUSSION 21
I. Standard of Review 22
"Where, as here, the BIA adopts and affirms the 23
decision of the IJ, and supplements the IJ's decision, we review 24
the decision of the IJ as supplemented by the BIA." Islam v. 25
Gonzales, 469 F.3d 53, 55 (2d Cir. 2006). 26

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2 Section 1227(a)(2)(B) makes deportable "[a]ny alien who at
any time after admission has been convicted of a violation
of . . . any law or regulation of a State, the United States, or
a foreign country relating to a controlled substance (as defined
in section 802 of Title 21)." 8 U.S.C § 1227(a)(2)(B).
Maiwand's conviction for the heroin deal falls within this
provision. See 21 U.S.C. § 802 (defining a "controlled
substance" as any substance listed in a schedule in 21 U.S.C.
§ 812); 21 U.S.C. § 812 (listing heroin as a schedule I
substance).
6
We apply the principles of Chevron U.S.A., Inc. v. 1
Natural Res. Def. Council, Inc., 467 U.S. 837 (1984), to agency 2
interpretations of statutes when Congress has delegated law- 3
making authority to the agency and the interpretation was 4
promulgated pursuant to that authority. Ucelo-Gomez v. Gonzales, 5
464 F.3d 163, 168 (2d Cir. 2006) (citing United States v. Mead 6
Corp., 533 U.S. 218, 226-27 (2001)). Precedential BIA decisions 7
are eligible for Chevron deference insofar as they represent the 8
agency's authoritative interpretations of statutes. See id. at 9
170. 10
II. Jurisdiction 11
Because Maiwand was ordered removed pursuant to 8 12
U.S.C. § 1227(a)(2)(B),2 we have jurisdiction to review only 13
"constitutional claims or questions of law raised [in his] 14
petition for review." 8 U.S.C. § 1252(a)(2)(D); see also 15
§ 1252(a)(2)(C) (providing that its jurisdictional limitations 16
apply when an alien "is removable by reason of having committed a 17
criminal offense covered" in, inter alia, section 1227(a)(2)(B)). 18
"[T]he term 'constitutional claims' clearly relates to claims 19

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7
brought pursuant to provisions of the Constitution of the United 1
States." Xiao Ji Chen v. Gonzales, 471 F.3d 315, 324 (2d Cir. 2
2006). The phrase "questions of law" encompasses "the same types 3
of issues [over which] courts traditionally exercised 4
[jurisdiction] in habeas review over Executive detentions," id. 5
at 326-27, which the Supreme Court has noted is "broader than 6
habeas review over other types of detentions resulting from 7
judicial determinations," St. Cyr, 533 U.S. at 301. In 8
determining whether we have jurisdiction, we must "study the 9
arguments asserted . . . [and] determine, regardless of the 10
rhetoric employed in the petition, whether it merely quarrels 11
over the correctness of the factual findings or justification for 12
the discretionary choices." Xiao Ji Chen, 471 F.3d at 329. If 13
so, we do not have jurisdiction to review it. See id. We have 14
observed, generally, that we have jurisdiction to review "the 15
application of law to fact, including what evidence may satisfy a 16
party's burden of proof." Gui Yin Lin v. INS, 475 F.3d 135, 137 17
(2d Cir. 2007) (per curiam) (citations omitted). 18
A. Section 212(c) Relief 19
Former INA section 212(c) granted the Attorney General 20
discretion to waive deportation orders issued to LPRs who have 21
lived in the United States for at least seven consecutive years. 22
See INS v. St. Cyr, 533 U.S. 289, 294-95 (2001). This provision 23
was repealed by the Illegal Immigration Reform and Immigrant 24

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8
Responsibility Act of 1996 ("IIRIRA"). Section 212(c)'s waiver 1
of inadmissibility relief nonetheless remains available to aliens 2
who pled guilty to crimes prior to the month of April 1997, in 3
which IIRIRA became effective, and who, "notwithstanding those 4
convictions, would have been eligible for § 212(c) relief at the 5
time of their plea under the law then in effect." St. Cyr, 533 6
U.S. at 326. 7
Maiwand first disputes the IJ's and BIA's conclusions 8
that his testimony about the heroin transaction in his hearings 9
before the IJ was inconsistent. He asserts that the apparent 10
inconsistency resulted from superficial questioning of him about 11
his role in the offense at his first hearing. Because this 12
attack "essentially disputes the correctness of an IJ's 13
fact-finding," Xiao Ji Chen, 471 F.3d at 329, we are without 14
jurisdiction to review it. 15
Maiwand next argues that his strong family ties to 16
United States citizens, along with other favorable factors, 17
warrant a waiver of inadmissibility under section 212(c) 18
notwithstanding the negative weight that attaches to his drug 19
conviction. This argument amounts to a challenge to the "wisdom 20
of [the IJ's] exercise of discretion," id., and we therefore have 21
no jurisdiction to review it. 22
Maiwand also asserts that the BIA ignored a 23
psychiatrist's report that provided evidence of his 24
rehabilitation and the hardships his family would endure if he 25
was removed. He contends that the BIA thereby abused its 26

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9
discretion and violated his right to due process. But while an 1
"IJ's unambiguous mischaracterization of the record raises a 2
question of law," Gui Yin Liu, 475 F.3d at 138, an argument that 3
"merely quibbles with the IJ's description of the facts," Khan v. 4
Gonzales, 495 F.3d 31, 36 (2d Cir. 2007), does not. Here, the 5
BIA explicitly referenced the report in its opinion. 6
Accordingly, we conclude that Maiwand's complaint regarding the 7
extent of the agency's reliance on the report amounts to nothing 8
more than a "quarrel[] over the . . . justification for the 9
discretionary choices" made, a decision we cannot review. Xiao 10
Ji Chen, 471 F.3d at 329. 11
B. CAT Relief 12
Regulations implementing CAT provide that "once an 13
alien establishes that 'it is more likely than not that he or she 14
would be tortured if removed to the proposed country of removal,' 15
the United States may not remove him or her to that country." 16
Ramsameachire v. Ashcroft, 357 F.3d 169, 184 (2d Cir. 2004) 17
(quoting 8 C.F.R. § 208.16(c)(2)). Maiwand contends that the BIA 18
"failed to cite any basis for its decision" that he had failed to 19
meet his burden of proof and that the decision was "clearly in 20
error, unsupported by the record, and without any basis in fact." 21
Maiwand Br. at 51, 52. Because the latter argument "essentially 22
disputes the correctness of an IJ's fact-finding," Xiao Ji Chen, 23
471 F.3d at 329, we are without jurisdiction to review it, id. 24
To the extent that Maiwand challenges the IJ's application of 25

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10
facts to the standard of proof required under the CAT 1
regulations, we find the challenge to be without merit. 2
C. Motion to Terminate 3
Maiwand also contends that his motion to terminate the 4
removal proceedings should have been granted because he is 5
statutorily ineligible for removal on the ground that his refugee 6
status was never revoked in accordance with 8 U.S.C. 7
§ 1157(c)(4). This is a question of law that we do have 8
jurisdiction to review. See Romanishyn v. Attorney Gen. of the 9
United States, 455 F.3d 175, 180 (3d Cir. 2006) ("Whether an 10
alien who entered the country as a refugee and subsequently 11
acquired LPR status may be placed in removal proceedings even 12
though his refugee status was never terminated under 8 U.S.C. 13
§ 1157(c)(4), is a question of law."). 14
III. Motion to Terminate: The Merits 15
The INA provides that a refugee is a person outside the 16
country of his nationality who "is unable or unwilling to return 17
to, and is unable or unwilling to avail himself or herself of the 18
protection of, that country because of persecution or a 19
well-founded fear of persecution on account of race, religion, 20
nationality, membership in a particular social group, or 21
political opinion." 8 U.S.C. § 1101(a)(42). A refugee may be 22
admitted to the United States notwithstanding 1) the likelihood 23
that he will become a public charge; 2) the absence of a labor 24
certification; and 3) the lack of a valid visa or other entry 25

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11
document. See 8 U.S.C. § 1157(c)(1), (3) (granting the Attorney 1
General discretion, within numerical limits provided in other 2
subsections, to admit refugees). Unless the alien is 3
inadmissible because of, inter alia, his or her involvement in 4
drug trafficking, 8 U.S.C. § 1182(a)(2)(C), the Attorney General 5
may also waive most other grounds for inadmissibility, see 8 6
U.S.C. § 1157(c)(3) (allowing the Attorney General to waive any 7
ground of inadmissibility except for subsections 1182(a)(2)(C), 8
(3)(A)-(C), (3)(E)). 9
Refugee status may be terminated only if the Attorney 10
General finds that the alien did not qualify as a refugee at the 11
time of entry. See 8 U.S.C. § 1157(c)(4) (providing for 12
termination of refugee status "if the Attorney General determines 13
that the alien was not in fact a refugee within the meaning of 14
section 1101(a)(42) . . . at the time of the alien's admission"). 15
Maiwand argues that unless his refugee status has been 16
terminated, he may not be removed. But the BIA has recently held 17
otherwise. In re Smriko, 23 I. & N. Dec. 836, 842 (B.I.A. 2005) 18
(finding "no merit to the respondent's assertion that he is 19
immune from removal on the basis of his convictions for crimes 20
involving moral turpitude because his refugee status has not been 21
terminated" under section 1157(c)(4)). The agency noted that the 22
statutes providing for removal refer simply to "any alien" or 23
"the alien" -- they do not distinguish aliens who arrived as 24
refugees from other aliens. See id. at 838 (citing 8 U.S.C. 25
§§ 1227(a), 1229). Moreover, refugees must apply for adjustment 26

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12
to LPR status within a year of their arrival and, upon such 1
application, may be charged with "any applicable ground of 2
inadmissibility . . . or deportability." See id. at 839 (citing 3
8 U.S.C. §§ 1159, 1229a; 8 C.F.R. § 209.1). The BIA reasoned 4
that "[i]f conditional admission as a refugee does not immunize 5
an alien from the general grounds of admissibility, it follows 6
that a refugee admitted as a lawful permanent resident . . . is 7
not immunized from the grounds for removal that are applicable to 8
all other aliens." Id. at 840. It also considered it "difficult 9
to imagine that Congress intended" the result urged by the 10
petitioner -- viz., a statutory framework that allowed refugees 11
to "commit crimes with impunity, or even engage in terrorist 12
activity and remain exempt from removal" as long as they were in 13
fact refugees at the time of entry. Id. at 841. 14
The statute is silent as to whether refugee status must 15
be terminated prior to commencement of removal proceedings. See 16
8 U.S.C. § 1229a (setting forth how removal proceedings are to be 17
conducted without reference to refugee status). We must 18
therefore defer to the agency's interpretation if it is 19
reasonable. See Chevron, 467 U.S. at 843 ("[I]f the statute is 20
silent or ambiguous with respect to the specific issue, the 21
question for the court is whether the agency's answer is based on 22
a permissible construction of the statute."). 23
Although we have not yet addressed whether the BIA's 24
interpretation of the relevant statutes in Smriko is reasonable, 25
the Third and Ninth Circuits have done so and both have concluded 26

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13
that it is. See Kaganovich v. Gonzales, 470 F.3d 894, 897-98 1
(9th Cir. 2006) (citing Romanishyn, 455 F.3d at 185). We agree. 2
As those circuits recognized, refugee status does not 3
afford complete immunity from removal. See Romanishyn, 455 F.3d 4
at 185 (recognizing that "a refugee may under some circumstances 5
be removed even if his refugee status has not been terminated"); 6
Kaganovich, 470 F.3d at 898 (upholding the BIA's interpretation 7
in light of "statutory text allowing removal of any alien" 8
(emphasis in original)). The fact that Maiwand's adjustment to 9
LPR status did not terminate his refugee status is irrelevant. 10
Even if he retained his refugee status, he would have remained 11
subject to removal for committing a drug trafficking offense. 12
See 8 U.S.C. § 1159 (requiring refugees to "return or be returned 13
to the custody of the Department of Homeland Security [within a 14
year of their entry] for inspection and examination for admission 15
to the United States as an immigrant in accordance with the 16
provisions of," inter alia, 8 U.S.C. § 1229a; 8 U.S.C. § 1229a 17
(providing that "[a]n alien placed in [removal] proceedings . . . 18
may be charged with any applicable ground of 19
inadmissibility . . . or any applicable ground of 20
deportability"); 8 U.S.C. § 1227(a)(2)(B)(i) (making deportable 21
"[a]ny alien who at any time after admission has been convicted 22
of a violation of (or a conspiracy or attempt to violate) any law 23
or regulation of a State . . . relating to a controlled 24
substance"). 25
CONCLUSION 26

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14
We have carefully considered the remainder of Maiwand's 1
arguments and find them to be without merit. At the heart of 2
Maiwand's petition are his assertions that the dangers he is 3
likely to face if returned to Afghanistan, his demonstrated 4
rehabilitation, and the hardship his family is likely to suffer 5
upon his removal outweigh the fact of his conviction for a 6
controlled substances offense over a decade ago. While we have 7
no reason to doubt the factual basis for those assertions, for 8
the foregoing reasons, we do not have jurisdiction to address 9
them. The petition for review therefore is dismissed in part, 10
and otherwise denied. 11

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