No. 07-249
In the Supreme Court of the United States
ANDI PALGUNADI, PETITIONER
v.
MICHAEL B. MUKASEY, ATTORNEY GENERAL
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
BRIEF FOR THE RESPONDENT IN OPPOSITION
PAUL D. CLEMENT QUESTIONS PRESENTED 1. Whether the court of appeals erred in denying petitioner's motion
to remand based on evidence outside of the administrative record relating
to a new claim for relief. 2. Whether the court of appeals erred in holding that substantial evidence
supports the agency's determination that petitioner failed to establish
eligibility for withholding of removal to Indonesia. In the Supreme Court of the United States No. 07-249 ANDI PALGUNADI, PETITIONER v. MICHAEL B. MUKASEY, ATTORNEY GENERAL ON PETITION FOR A WRIT OF CERTIORARI BRIEF FOR THE RESPONDENT IN OPPOSITION OPINIONS BELOW The opinion of the court of appeals (Pet. App. 1a-2a) is not published
in the Federal Reporter but is available at 216 Fed. Appx. 304. The decisions
of the Board of Immigration Appeals (Supp. Pet. App. 7a-8a) and the Immigration
Judge (Supp. Pet. App. 9a-19a) are unre ported. JURISDICTION The judgment of the court of appeals was entered on February 12, 2007.
A petition for rehearing was denied on May 22, 2007 (Pet. App. 3a). The
petition for a writ of certiorari was filed on August 17, 2007. The jurisdic
tion of this Court is invoked under 28 U.S.C. 1254(1). STATEMENT 1.a. Section 245(i) of the Immigration and National ity Act (INA),
8 U.S.C. 1255(i), allows certain aliens who are physically present in the
United States to seek ad justment of their status to that of an alien lawfully
ad mitted for permanent residence. Section 245(i) provides that the Attorney
General "may adjust" the status of an alien who "entered
the United States without inspec tion" if he pays a penalty and meets
two other require ments: (A) the alien is eligible to receive an immigrant visa and is admissible
to the United States for perma nent residence; and (B) an immigrant visa is immediately available to the alien at the time
the application is filed. 8 U.S.C. 1255(i)(2). The original sunset date for Section 245(i) was
extended several times and expired on April 30, 2001, except for those aliens
who were already "grandfathered." 8 U.S.C. 1255(i); 8 C.F.R.
1245.10. As relevant here, a "grandfathered" alien includes an
alien who had an application for a labor certification filed on his behalf
on or before April 30, 2001, which was approv able when filed. 8 U.S.C.
1255(i)(1)(B)(ii); 8 C.F.R. 1245.10(a)(1)(i)(B). An alien may seek to adjust his status under Section 1255(i), based
on an employer's need for his skills, in a three-step process. Khan v.
Attorney General, 448 F.3d 226, 228 n.2 (3d Cir. 2006). In "the first
preliminary step," the potential employer must file a labor certifica
tion and establish, inter alia, that there is no United States citizen available
to fill the job. Ahmed v. Gonza les, 447 F.3d 433, 438 (5th Cir. 2006).
Second, once the labor certification is approved, the prospective employer
must file the approved labor certification along with an employment-based
visa petition (Form I-140). See 8 C.F.R. 204.5(a). Finally, if the employment-based
visa petition is approved, then the alien's application for ad justment
of status may be considered for adjudication. See 8 C.F.R. 1245.2(a)(2).
That process may be lengthy, and the ultimate decision regarding whether
to permit adjustment of status is entrusted to the discretion of the Attorney
General. Ahmed, 447 F.3d at 438-439 & n.3. If an alien is in removal proceedings and wishes to seek adjustment
of his status under Section 245(i), he may only do so in those proceedings.
8 C.F.R. 1245.2(a)(1)(i) ("In the case of any alien who has been placed
in * * * removal proceedings * * * , the immi gration judge hearing
the proceeding has exclusive ju risdiction to adjudicate any application
for adjustment of status the alien may file."). Subject to certain
excep tions, an alien may file a motion to reopen a completed removal proceeding
"within 90 days of entry of a final administrative order." 8
U.S.C. 1229a(c)(7)(C)(i) (Supp. V 2005). b. Section 242(a) of the INA, 8 U.S.C. 1252(a), gen erally authorizes
the courts of appeals to review final orders of removal on petition for
review. The reviewing court "shall decide the petition only on the
administra tive record on which the order of removal is based." 8
U.S.C. 1252(b)(4)(A). The court "may not order the tak ing of additional
evidence under section 2347(c) of Title 28." 8 U.S.C. 1252(a)(1).1 c. The INA defines a "refugee" as an alien who is unwilling
or unable to return to his or her country of origin "because of persecution
or a well-founded fear of persecution on account of race, religion, nationality,
membership in a particular social group, or political op inion." 8
U.S.C. 1101(a)(42)(A). If the "Secretary of Homeland Security or the
Attorney General deter mines" that an alien is a refugee, he may, in
his discre tion, grant the alien asylum in the United States. REAL ID Act
of 2005, Pub. L. No. 109-13, Div. B, § 101(a), 119 Stat. 303 (8 U.S.C.
1158(b)(1)(A) (Supp. V 2005)). An application for asylum generally must
be filed within one year of an alien's entry into the United States. 8
U.S.C. 1158(a)(2)(B). In addition to the discretionary relief of asylum, mandatory withholding
of removal is available if "the alien's life or freedom would be threatened
in [the coun try of removal] because of the alien's race, religion, na tionality,
membership in a particular social group, or political opinion." 8
U.S.C. 1231(b)(3)(A). An applicant for withholding of removal must establish
that it is more likely than not that he would face persecution on account
of a protected ground upon removal to a particular coun try. 8 C.F.R.
208.16(b)(2). The "more likely than not" standard is a more stringent
standard than a well- founded fear of persecution (the asylum standard).
INS v. Cardoza-Fonseca, 480 U.S. 421, 430-432 (1987). To obtain protection under the United Nations Con vention Against Torture
and Other Cruel, Inhuman and Degrading Treatment or Punishment (CAT), Dec.
10, 1984, 1465 U.N.T.S. 85, an applicant must demonstrate, inter alia, that
it is more likely than not that he would be tortured "by or at the
instigation of or with the con sent or acquiescence of a public official
or other person acting in an official capacity" if removed to a certain
country. 8 C.F.R. 1208.18; see 8 C.F.R. 1208.16(c)(2). The applicant bears the burden of establishing that he or she is eligible
for asylum, withholding of removal, or CAT protection. 8 C.F.R. 208.13(a),
208.16(b); 8 C.F.R. 1208.16(c)(2). 2.a. Petitioner is a native and citizen of Indonesia and a practicing
Muslim. He arrived in the United States in November 1999 as a non-immigrant
vocational student and was authorized to stay for one year. Peti tioner
remained in the United States long after the date permitted, and the Department
of Homeland Security initiated removal proceedings. Petitioner conceded
removability, but he sought relief from removal in the form of asylum, withholding
of removal, and protection under the CAT. In the alternative, petitioner
requested voluntary departure. Supp. Pet. App. 9a-10a. Petitioner claimed that before he left Indonesia, he was threatened
by the Islamic extremist group Jemaat Islamiah, an organization designated
by the United States as a terrorist group. Petitioner testified that members
of the group first began threatening him when he worked as a pilot for the
Indonesian government. Petitioner explained that after his contract expired
with the government, he went into business for himself, and he was threatened
by "individuals who sought to extort monies from his business,"
who he "believed to be" Is lamic extremists. Petitioner also
testified regarding an incident in which he was confronted by several individu
als he believed to be members of an extremist group while he was at an automated
teller machine. Supp. Pet. App. 11a-12a. b. The immigration judge (IJ) denied petitioner's applications for
asylum, withholding, and CAT protec tion, but he granted petitioner voluntary
departure. First, the IJ denied petitioner's asylum application be cause,
as he conceded, petitioner had not filed the appli cation within one year
of his entry into the United States, and petitioner did not demonstrate
any circum stances that would permit relief from the one-year bar. Supp.
Pet. App. 12a, 16a; see 8 U.S.C. 1158(a)(2)(B). Second, the IJ determined that petitioner had not established his eligibility
for withholding of removal because he failed to establish that it was more
likely than not that he would be persecuted on account of a protected ground
if returned to Indonesia. Supp. Pet. App. 15a-18a. Petitioner claimed
that he would be per secuted on two protected grounds, religion and member
ship in a particular social group (airline pilots who work for the Indonesian
government). Id. at 17a. The IJ found that petitioner's social group claim
failed because petitioner was no longer a member of the claimed group, which
meant that he could not show a likelihood of per secution on that basis.
Ibid.; see In re Acosta, 19 I. & N. Dec. 211, 231-233 (BIA 1985), overruled
on other grounds by In re Mogharrabi, 19 I. & N. Dec. 439, 1987 WL 108943
(BIA 1987). The IJ then found that peti tioner had not established that
he would be persecuted based on his religion because there was "no
evidence" that petitioner had been or would be "singled out to
be persecuted for [his] religious affiliation and belief." Supp. Pet.
App. 17a. Indeed, the evidence revealed that petitioner was threatened
"not because of [his] religion" but "because [he] worked
as a pilot for the government" and "because [he] owned a business."
Ibid. As a result, the IJ found that there was simply "no nexus between
[petitioner's fear] * * * and the protected grounds" in the INA.
Id. at 17a-18a. The IJ denied petitioner's claim for relief under the CAT, finding that
there was no evidence that petitioner had been or would be tortured by the
government, or with the acquiescence of the government, if returned to Indonesia.
Supp. Pet. App. 16a-17a. Finally, the IJ granted petitioner voluntary
departure in lieu of re moval. Id. at 18a-19a. 3. The Board of Immigration Appeals (Board) af firmed the IJ's decision,
"find[ing] no error in the denial of the relief sought." Supp.
Pet. App. 7a-8a. Petitioner had also filed a motion to remand before the
Board, ar guing that remand was warranted because he had filed an employment-based
visa petition. Id. at 8a; see Ahmed, 447 F.3d at 438 n.3 (filing of employment-based
visa petition is second step in seeking to adjust status based on an employer's
need for skills). The Board de nied petitioner's motion to remand because
petitioner's visa petition had not yet been adjudicated, and thus he had
not met the prerequisites to seek an adjustment of status. Ibid.; see 8
U.S.C. 1255(i)(2)(B). In accordance with the IJ's order, the Board pro vided petitioner sixty
days voluntarily to depart the United States. Supp. Pet. App. 8a. Petitioner
then re quested a stay of removal and a stay of voluntary depar ture pending
review from the court of appeals. The gov ernment did not oppose petitioner's
motion for a stay of removal, but it did oppose his motion for stay of volun
tary departure. The court of appeals granted petitioner a stay of removal
only but denied a stay of voluntary departure. See 06-1666 Docket Entry
(4th Cir. July 26, 2006); see also Ngarurih v. Ashcroft, 371 F.3d 182, 193-195
(4th Cir. 2004) (holding that the court of appeals lacks the authority to
stay voluntary departure). Peti tioner has not voluntarily departed the
United States. 4. In an unpublished, per curiam opinion, the court of appeals denied
petitioner's petition for review. Pet. App. 1a-2a. It first determined
that it could not consider petitioner's asylum application because the IJ
had deter mined it was time-barred. Id. at 2a; see 8 U.S.C. 1158(a)(3).2
The court then rejected petitioner's with holding argument, holding that
"substantial evidence support[ed] the finding that [petitioner] did
not estab lish eligibility for withholding of removal." Pet. App.
3a. Petitioner had also filed a motion to remand with the court of appeals.
Petitioner argued that the court should remand his case to the Board so
that he could file an application for adjustment of status because his work
visa (i.e., I-140 petition) had been approved. See Pet. Motion to Remand
1-2 (Nov. 30, 2006). The government opposed the motion, explaining that
remand was inap propriate because the court of appeals' review was lim ited
to the administrative record on which the petition was based and that petitioner's
remedy was to file a mo tion to reopen with the Board. See Gov. Opposition
to Motion to Remand 3-4 (Dec. 8, 2006). The court of ap peals denied petitioner's
motion to remand. Pet. App. 2a. ARGUMENT The unpublished decision of the court of appeals is correct and does
not conflict with any decision of this Court or any other court of appeals.
Further review of petitioner's fact-bound claims is therefore unwarranted.
1. Petitioner contends (Pet. 5-9) that the court of appeals erred by
denying his motion to remand to the Board for consideration of his application
for adjustment of status based on new evidence of an approved work visa.
Petitioner does not contend that there is any dis agreement in the circuits
on this point, and he has no colorable claim that the decision below conflicts
with a decision of this Court or presents an issue of such ex traordinary
importance that this Court's review is war ranted. Sup. Ct. R. 10. In
any event, the decision below is correct. a. Regulations implementing the INA make clear that an alien who has
been placed in removal proceed ings may seek adjustment of his status only
in those pro ceedings. 8 C.F.R. 1245.2(a)(1). Petitioner acknowl edges
that limitation on the availability of Section 245(i) relief. Pet. 7-8.
Moreover, the court of appeals' author ity to review a final order of removal
is limited to the administrative record on which the order of removal was
based. 8 U.S.C. 1252(b)(4)(A). Petitioner's motion to remand was based
on new evidence that was not part of the administrative record, i.e., approval
of petitioner's work visa. Pet. 6. The court of appeals thus correctly
determined that remand was inappropriate. Petitioner contends (Pet. 8) that under those circum stances, the court
of appeals could have remanded the case to the Board for further proceedings
under 28 U.S.C. 2347(b) or (c). That contention lacks merit. First, 28
U.S.C. 2347(b) is not applicable to this case because petitioner is not
seeking review of an agency action taken without a hearing. 28 U.S.C. 2347(b)
(au thorizing remand when, inter alia, "the agency has not held a hearing
before taking the action of which review is sought by the petition").
Indeed, petitioner was pro vided with a hearing on his claims for relief
from re moval, which formed the basis of his petition for review. What
petitioner is seeking is an additional hearing on a claim that has not been
presented or considered by the agency, specifically, whether he should be
granted ad justment of status based on his approved visa petition, and that
type of claim is not a basis for remand under 28 U.S.C. 2347(b). Second, remand under 28 U.S.C. 2347(c) is expressly barred by 8 U.S.C.
1252(a), which defines the limits of the courts of appeals' authority to
review final orders of removal. See 8 U.S.C. 1252(a)(1) ("[T]he court
may not order the taking of additional evidence under section 2347(c) of
Title 28."); see also, e.g., Lendo v. Gonzales, 493 F.3d 439, 443 n.3
(4th Cir. 2007) (court of appeals is barred by statute under 8 U.S.C. 1252(a)(1)
to remand based on intervening developments); Gebremaria v. Ashcroft, 378
F.3d 734, 737 (8th Cir. 2004) (statute's "prohibition of remanding
for the consideration of addi tional evidence pertains to non-record evidence
that is introduced in the first instance before a reviewing court");
Al Najjar v. Ashcroft, 257 F.3d 1262, 1281 (11th Cir. 2001) (statute "prohibits
[the court of appeals] from ordering the [Board] to consider evidence that
is offered for the first time on appeal, even if such material satis fies
the rigors of § 1237(c)"); Altawil v. INS, 179 F.3d 791, 793 (9th
Cir. 1999) (denying remand motion because court of appeals "cannot
order the taking of additional evidence by the Board under 28 U.S.C. 2347(c)").
Although one circuit court has suggested that it may have "inherent
power to remand for additional fact-find ing in agency cases that present
extraordinary and com pelling circumstances," it concluded that "the
exercise of such an inherent power is not warranted if * * * [i] the
basis for the remand is an instruction to consider documentary evidence
that was not in the record before the [Board]; and [ii] the agency regulations
set forth procedures to reopen a case before the [Board] for the taking
of additional evidence." Xiao Xing Ni v. Gonza les, 494 F.3d 260,
269 (2d Cir. 2007). That is precisely the situation here. Petitioner sought
a remand so that the Board could consider evidence that was not part of
the administrative record below, and there are proce dures for petitioner
to seek reopening before the Board to consider his additional evidence.
Specifically, peti tioner may file a motion to reopen based on his approved
visa petition with the Board. See 8 U.S.C. 1229a(c)(7); 8 C.F.R. 1003.2(c)(2).
Although petitioner's motion may be time-barred, Pet. 7; 8 C.F.R. 1003.2(c)(2),
the Board has the authority to reopen his case sua sponte, 8 C.F.R. 1003.2(a),
and petitioner also could avoid the time bar by obtaining the government's
agreement to join his motion to reopen, 8 C.F.R. 1003.2(c)(3)(iii).3 b. Petitioner contends (Pet. 7-8) that the court of appeals' refusal
to grant his remand motion violates due process, because "the law confers
upon [him] the right to apply for adjustment, [and] he cannot be deprived
thereof without running afoul of the due process clause of the constitution."
That claim lacks merit. As peti tioner acknowledges (Pet. 8), adjustment
of status is wholly within the Attorney General's discretion, see 8 U.S.C.
1255(i), and thus petitioner cannot have a pro tected liberty or property
interest in it. See Board of Regents v. Roth, 408 U.S. 564, 577 (1972)
(to have a protectable property or liberty interest in a benefit, one must
have "more than a unilateral expectation of it"; "[h]e must,
instead, have a legitimate claim of entitle ment to it"). Indeed, the courts of appeals have uniformly held that an alien has
no liberty or property interest in dis cretionary relief, such as adjustment
of status. See Sarr v. Gonzales, 485 F.3d 354, 362 (6th Cir. 2007) (finding
no due process denial in failure to remand for consideration of adjustment
of status because that relief is entrusted to the Attorney General's discretion);
Dekoladenu v. Gonzales, 459 F.3d 500, 508 (4th Cir. 2006) (alien has "neither
a liberty nor a property interest in adjustment of status"); DaCosta
v. Gonzales, 449 F.3d 45, 50 (1st Cir. 2006) ("A due process claim
requires that a cogniza ble liberty or property interest be at stake *
* *. Be cause adjustment of status is a discretionary form of relief,
it does not rise to the level of such a protected interest."); Ahmed
v. Gonzales, 447 F.3d 433, 440 (5th Cir. 2006) ("This circuit has repeatedly
held that discre tionary relief from removal, including an application for
an adjustment of status, is not a liberty or property right that requires
due process protection."); Hamdan v. Gonzales, 425 F.3d 1051, 1060-1061
(7th Cir. 2005) ("[A]n alien's right to due process does not extend
to proceedings that provide only discretionary relief, and the denial of
such relief does not violate due process."); Jamieson v. Gonzales,
424 F.3d 765, 768 (8th Cir. 2005) ("Because Jamieson is seeking the
discretionary relief of adjustment of status, there is no constitution ally-protected
liberty interest at stake."); United States v. Torres, 383 F.3d 92,
104 (3d Cir. 2004) (Section 212(c) relief implicates no liberty interest
because it is "en tirely a piece of legislative grace"); Tovar-Landin
v. Ashcroft, 361 F.3d 1164, 1167 (9th Cir. 2004) ("[A]liens have no
fundamental right to discretionary relief from removal for purposes of due
process and equal protec tion."); Tefel v. Reno, 180 F.3d 1286, 1300
(11th Cir. 1999) ("[A] constitutionally protected interest cannot arise
from relief that the executive exercises unfettered discretion to award."),
cert. denied, 530 U.S. 1228 (2000); Ahmetovic v. INS, 62 F.3d 48, 53 (2d
Cir. 1995) (finding "no statutory entitlement to asylum that would
give rise to a due process claim"); Velasco-Gutierrez v. Crossland,
732 F.2d 792, 798 (10th Cir. 1984) (no liberty interest in discretionary
deferred action). Thus, because petitioner has no protected liberty or
property interest in the discretionary relief of adjustment of status, he
"cannot establish that [he] had a right to due process in the proceedings
to obtain this relief." Garcia-Mateo v. Keisler, No. 06-3647, 2007
WL 2873665, at *3 (8th Cir. Oct. 4, 2007). Further, not only does petitioner lack any due process-protected right
to discretionary adjustment of status, he also lacks any due process right
to the process of applying for that relief itself. See Ohio Adult Parole
Auth. v. Woodard, 523 U.S. 272, 280 n.2 (1998) (holding that asserting a
mere protected interest in a process itself is not a cognizable claim);
Olim v. Wakinekona, 461 U.S. 238, 250 n.12 (1983) (an "expectation
of receiv ing process is not, without more, a liberty interest pro tected
by the Due Process Clause"); Kovats v. Rutgers, 822 F.2d 1303, 1314
(3d Cir. 1987) ("[P]romises of spe cific procedures do not create interests
protected by the Due Process clause."), cert. denied, 489 U.S. 1014
(1989). A contrary rule would make little sense, because "[i]f a right
to a hearing is a liberty interest, * * * then one has interpreted [due
process] to mean that the state may not deprive a person of a hearing without
providing him with a hearing." Shvartsman v. Apfel, 138 F.3d 1196,
1199 (7th Cir. 1998). Indeed, the courts of appeals have routinely rejected the argument that
an alien seeking discretionary relief has a liberty or property interest
in the process itself. See, e.g., Cevilla v. Gonzales, 446 F.3d 658, 662
(7th Cir. 2006) (finding no liberty interest in cancellation of re moval,
even if all statutory requirements are satisfied, because "[a] procedural
entitlement is not a liberty in terest"); Nguyen v. District Director,
Bureau of Immi gration & Customs Enforcement, 400 F.3d 255, 259 (5th
Cir. 2005) (rejecting argument that aliens have a due process right to a
hearing on discretionary relief); Torres, 383 F.3d at 104 (no liberty interest
in being con sidered for section 212(c) relief); Tefel, 180 F.3d at 1300-
1301 ("[J]ust as [aliens] enjoy no 'liberty or property' interest in
their expectancy of receiving suspension of deportation, they enjoy no 'liberty
or property' interest in being eligible to be considered for suspension.").4 c. Even if petitioner's claim that the court of appeals should have
remanded his case had merit, this case would be an inappropriate vehicle
for addressing it, be cause petitioner's failure to voluntarily depart means
that he can no longer obtain adjustment of status. Be fore the administrative
agency, petitioner requested and was granted 60 days to voluntarily depart
the United States in lieu of removal. Supp. Pet. App. 7a-8a, 10a, 18a-19a.
Petitioner was also specifically notified of the consequences of failing
to comply with his voluntary departure order. Id. at 8a. Nonetheless,
petitioner failed to depart within the 60 days allowed by the agency.5
Therefore, petitioner is statutorily ineligible for adjustment of status.
8 U.S.C. 1229c(d)(1)(B) (Supp. V 2005) ("[i]f an alien is permitted
to depart voluntarily * * * and fails voluntarily to depart * * *
within the time period specified, the alien," inter alia, "shall
be ineligible for a period of 10 years" to receive certain forms of
discretionary relief, including adjustment of status); see 8 C.F.R. 1240.26(a);
Ngarurih v. Ashcroft, 371 F.3d 182, 194 (4th Cir. 2004) ("Congress
provided for certain penalties to attach when an alien overstays his voluntary
departure period."). Further review of petitioner's claim is therefore
unwarranted. 2. Petitioner contends (Pet. 9-10) that the court of appeals erred
in failing to find that he demonstrated past persecution for purposes of
establishing entitle ment to withholding of removal. Petitioner does not
assert that the decision below conflicts with any decision of this Court
or any other court of appeals on this issue; he simply invokes (Pet. 9)
this Court's supervisory power without providing any explanation why exercise
of that power would be appropriate to review his claim. Sup. Ct. R. 10;
see, e.g., Universal Camera Corp. v. NLRB, 340 U.S. 474, 491 (1951) ("Whether
on the record as a whole there is substantial evidence to support agency
findings is a question which Congress has placed in the keeping of the Courts
of Appeals."). In any event, the court of appeals' decision is correct. The IJ reviewed
the evidence petitioner presented and concluded that he failed to demonstrate
that his past experiences in Indonesia were on account of a statuto rily
protected ground, which is dispositive of his claim for withholding of removal.
Supp. Pet. App. 15a-18a; see 8 U.S.C. 1231(b)(3) (persecution must be "because
of" a protected ground); see also, e.g., In re J-B- & S-, 24 I.
& N. Dec. 208, 211 (B.I.A. 2007) ("[A]n applicant must pro duce
evidence, either direct or circumstantial, from which it is reasonable to
believe that the harm was or would be motivated in part by an actual or
imputed pro tected ground."). The Board agreed with the IJ's find
ing, Supp. Pet. App. 7a, and the court of appeals deter mined that "substantial
evidence support[ed] th[at] find ing." Pet. App. 3a. Petitioner does
not challenge the court's finding that substantial evidence supported the
agency's conclusion that he failed to demonstrate a nexus between the alleged
persecution and a protected group, nor could he. Supp. Pet. App. 17a.
Petitioner therefore did not establish eligibility for withholding of removal.
Petitioner contends (Pet. 9) that the IJ refused to consider his evidence
of past persecution for purposes of withholding of removal because the IJ
found that his asylum claim was time-barred. Petitioner is mistaken. The
IJ's decision makes clear that, independent of his asylum holding, the
IJ carefully reviewed petitioner's evidence and determined that he had not
established a nexus between any persecution and a protected ground. See
Supp. Pet. App. 17a-18a (finding "no nexus between [petitioner's] fear
* * * and the protected grounds under our law"). As a result,
the IJ was not required to consider whether what had happened to petitioner
rose to the level of "persecution." The court of appeals thus
correctly held that petitioner is not eligible for withhold ing of removal,
and no further review of that claim is warranted. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. PAUL D. CLEMENT NOVEMBER 2007 1 8 U.S.C. 2347(c) provides that a reviewing court may grant "a
party to a proceeding to review" a covered administrative order leave
"to adduce additional evidence" if that evidence is "material"
and "there were reasonable grounds for failure to adduce the evidence
before the agency." In such circumstances, a court may order that
evidence "to be taken by the agency." 2 Petitioner does not challenge the denial of his asylum claim or the
denial of his CAT claim before this Court. 3 Petitioner also argues (Pet. 7) that it would be contrary to Con gress's
intent in enacting Section 245(i) to "le[ave] [him] without any venue
where his adjustment of status could be heard." That claim lacks merit.
Petitioner does not point to any language in Section 245(i) where Congress
evidenced an intent to allow discretionary applications for adjustment of
status to be evaluated at any time, even after a final removal order has
been entered, and there is none. Moreover, Congress specifically provided
a mechanism for consideration of new evidence before the agency-namely,
a motion to reopen. See 8 U.S.C. 1229a(c)(7). 4 Although petitioner cites several cases providing circumstances in
which aliens have a due process right to a hearing (Pet. 7-8), none of them
holds that an alien has a protected liberty or property interest in discretionary
adjustment of status or any procedure for obtaining that relief. 5 Petitioner requested a stay of his voluntary departure period in the
court of appeals, but that request was denied. See p. 7, supra. There
is no evidence that petitioner took steps to extend or otherwise prevent
the expiration of his voluntary departure period, and he provides no explanation
in his petition for his failure to voluntarily depart. Accordingly, petitioner's
voluntary departure period expired on July 14, 2006. See Supp. Pet. App.
8a.
Solicitor General
Counsel of Record
PETER D. KEISLER
Assistant Attorney General
DONALD E. KEENER
JENNIFER J. KEENEY
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
Solicitor General
PETER D. KEISLER
Assistant Attorney Gen eral
DONALD E. KEENER
JENNIFER J. KEENEY
Attorneys