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No. 07-923

 

In the Supreme Court of the United States

TAE KYONG KIM, PETITIONER

v.

MICHAEL B. MUKASEY, ATTORNEY GENERAL

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

PAUL D. CLEMENT
Solicitor General
Counsel of Record
JEFFREY S. BUCHOLTZ
Acting Assistant Attorney
General
DONALD E. KEENER
JENNIFER LEVINGS
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTIONS PRESENTED

1. Whether the court of appeals correctly deter mined that it lacked jurisdiction to review the Board of Immigration Appeals' denial of petitioner's request for discretionary relief from removal under 8 U.S.C. 1229b (2000 & Supp. V 2005).

2. Whether petitioner is removable because he com mitted a "crime of domestic violence" under 8 U.S.C. 1227(a)(2)(E)(i).

In the Supreme Court of the United States

No. 07-923

TAE KYONG KIM, PETITIONER

v.

MICHAEL B. MUKASEY, ATTORNEY GENERAL

 

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The oral decision of the court of appeals (App., infra, 1a-3a1) is unreported. The order of the court of appeals affirming for the reasons stated from the bench (Pet. App. B1-B3) is unreported. The opinions of the Board of Immigration Appeals (Pet. App. C1-C5, E1-E3) and the immigration judge (Pet. App. D1-D9, F1-F28) are unre ported.

JURISDICTION

The judgment of the court of appeals was entered on May 31, 2007. A petition for rehearing was denied on October 10, 2007 (Pet. App. A1-A2). The petition for a writ of certiorari was filed on January 7, 2008. The ju risdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. a. Under the Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq., an alien is removable if he is convicted of a "crime of domestic violence." 8 U.S.C. 1227(a)(2)(E)(i). The Attorney General, in his discre tion, may cancel an alien's removal if the alien meets certain eligibility requirements. 8 U.S.C. 1229b(a). To be statutorily eligible for cancellation of removal, an alien must demonstrate that he has been lawfully admit ted for permanent residence for not less than five years, has resided in the United States continuously for seven years after having been admitted in any status, and has not been convicted of an aggravated felony. Ibid.

In addition to satisfying the three statutory eligibil ity requirements, an applicant for cancellation of re moval must establish that he warrants such relief as a matter of discretion. In re C-V-T-, 22 I. & N. Dec. 7 (B.I.A. 1998). Whether an applicant warrants discre tionary cancellation of removal is a case-specific deter mination made by "balanc[ing] the adverse factors evi dencing the alien's undesirability as a permanent resi dent with the social and humane considerations pre sented in his (or her) behalf to determine whether the granting of . . . relief appears in the best interest of this country." Id. at 11 (quoting In re Marin, 16 I. & N. Dec. 581, 584 (B.I.A. 1978)).

b. Since 1996, the INA has barred federal court re view of certain discretionary decisions made by the At torney General in immigration cases. See Illegal Immi gration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, Div. C, § 306, 110 Stat. 3009-607. As pertinent here, the INA provides:

[N]o court shall have jurisdiction to review * * * any judgment regarding the granting of relief under section * * * 1229b [the INA's cancellation of re moval provision].

8 U.S.C. 1252(a)(2)(B)(i).

In 2005, Congress qualified this jurisdictional bar by providing:

Nothing in subparagraph (B) or (C), or in any other provision of this chapter (other than this section) which limits or eliminates judicial review, shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals in accordance with this section.

8 U.S.C. 1252(a)(2)(D) (Supp. V 2005).

2. Petitioner, a native and citizen of Korea, was ad mitted to the United States as an immigrant in 1978. Pet. App. F2-F3; A.R. 531. In March 2000, he pleaded guilty to a state domestic violence offense. Pet. App. F3; A.R. 531; see Mich. Comp. Laws Ann. § 750.81(2) (West 2004). The former Immigration and Naturalization Ser vice commenced removal proceedings against petitioner. Pet. App. F2-F3. Petitioner conceded that he was sub ject to removal under 8 U.S.C. 1227(a)(2)(E)(i) because he had been convicted of a "crime of domestic violence," but he sought discretionary cancellation of removal. Pet. App. F3.

The immigration judge (IJ) found that petitioner was removable as charged and denied his application for can cellation of removal. Pet. App. F1-F28. She explained that, in addition to meeting the statutory requirements for cancellation of removal, petitioner bore the burden of demonstrating that "relief is merited in the exercise of discretion." Id. at F13. To determine if discretionary relief was warranted, the IJ "balance[d] the adverse factors evidencing [petitioner's] undesirability * * * as a permanent resident against the social and humane * * * factors presented on [his] behalf." Id. at F13-F14 (citing In re C-V-T-, 22 I. & N. Dec. 7 (B.I.A. 1998); In re Marin, 16 I. & N. Dec. 581 (B.I.A. 1978)).

The IJ performed a lengthy analysis of the positive and negative equities surrounding petitioner's applica tion. Pet. App. F15-F27. She explained that petitioner's positive equities included that he has four United States citizen children, with whom he is close; that he has re sided in the United States for 23 years; that his mother and sisters are in the United States; and that he has businesses and property in the United States. Id. at F16-F17. But the court also noted the substantial nega tive equities in petitioner's case. She explained that pe titioner lied consistently during his hearing about his criminal history, his charitable contributions, and his businesses. Id. at F17-F24. For example, petitioner initially stated that he had no arrests other than for his domestic violence offense, but, after extensive question ing, he admitted to arrests for a violent crime in Korea and for counterfeiting and fraud in the United States. Id. at F23-F24. Similarly, petitioner originally claimed that his businesses were very successful and that he made significant charitable contributions, but those claims were belied by his tax returns. Id. at F21-F22, F25.

The IJ recounted the circumstances of petitioner's domestic violence offense, in which he grabbed his wife by the throat, told her he was going to kill her, threw her on the floor, kicked her in the head, pursued her with a fireplace poker, and then attacked her with a scis sors. Pet. App. F19-F20; see A.R. 491-500, 508-514. The IJ noted that petitioner's domestic violence offense "is a serious offense and it is clear from the police report and the documentary evidence * * * that [petitioner] did inflict harm and injury on his spouse, although he denies doing so." Pet. App. F27; see id. at F19-F20. The IJ also found that petitioner lied about whether he had reconciled with his wife and whether he still lived in their home. Id. at F18-F21, F24; see id. at F26 (noting that petitioner's "own wife did not even write an affida vit stating that she wished her husband to remain in the United States to assist her in the raising of their three citizen daughters").

Overall, the IJ found that petitioner's testimony was "inconsistent internally," Pet. App. F21, and that his "claims of remorse and rehabilitation [were] empty given [] his otherwise incredible testimony to this Court," id. at F26-F27. The IJ also found that peti tioner's witnesses appeared to be "providing false testi mony" and seemed to be "willing to provide any state ments to assist [petitioner]," even if those statements were "inconsistent with [the] objective evidence submit ted." Id. at F24, F26.

The IJ thus concluded that, despite petitioner's "long residence" in the United States, as well as his "children and siblings" here, he "does not deserve the exercise of discretion," because he committed a serious domestic violence offense, did not demonstrate rehabilitation, and lied throughout his testimony. Pet. App. F26-F27.

Petitioner appealed, and the Board of Immigration Appeals (BIA) returned the case to the IJ because a tape of part of the Immigration Court proceedings was blank. Pet. App. E1-E3. The IJ held another hearing in which petitioner was permitted to put on additional evi dence. A.R. 36-111.

The IJ again denied petitioner's application for dis cretionary cancellation of removal. Pet. App. D1-D9. The IJ noted that petitioner, despite "numerous oppor tunities to reconcile his testimony in his first hearing with his testimony" at the second hearing, continued to lie. Id. at D4. The IJ noted that, by the time of the sec ond hearing, petitioner and his wife had divorced, and the IJ found that they had separated by the time of the first hearing, even though petitioner claimed that they had reconciled and were living together after his domes tic violence offense. Id. at D4-D7. The IJ found that the significant negative equities (including the fact that peti tioner "clearly provided false testimony * * * to obtain * * * cancellation of removal") outweighed petitioner's family ties in the United States, and thus there was "no reason to change [her] earlier decision" that petitioner did not deserve discretionary cancellation of removal. Id. at D8-D9.

3. The BIA affirmed. Pet. App. C1-C5. It rejected petitioner's argument that the IJ erred in balancing the positive and negative equities in his case, concluding that the "Immigration Judge properly found [petitioner] to be ineligible for a discretionary grant of cancellation of removal based on a balancing of the positive and neg ative factors in his case, including his 2000 conviction for domestic violence against his former wife which resulted in her physical injury." Id. at C3. The BIA agreed with the IJ that petitioner failed to demonstrate "genuine rehabilitation or remorse which would tip the balance of the equities in [petitioner's] favor." Id. at C4. The BIA also noted petitioner's "lack of candor" as a negative factor. Id. at C3 n.2.

The BIA also rejected petitioner's challenges to the procedures used at the hearing, concluding that peti tioner was properly placed under oath when he decided to stop testifying in English and start testifying in Ko rean and that the IJ did not improperly "hold[] [peti tioner] criminally responsible for perjury and providing false testimony." Pet. App. C4-C5.

4. The court of appeals affirmed in a ruling from the bench at the conclusion of oral argument. App., infra, 1a-3a. The court first found that it had no jurisdiction to consider petitioner's argument that the BIA should have balanced the equities differently in his case and granted him discretionary cancellation of removal. Ibid. The court explained that petitioner's argument was that there "was an abuse of discretion in the [agency's] weighing of the factors," but that "the immigration judge in both hearings and the BIA in its written deci sions did balance the equities," and its discretionary decision to deny cancellation is not reviewable under 8 U.S.C. 1252(a)(2)(B) (2000 & Supp. V 2005). App., infra, 2a; see Pet. C.A. Br. 13-16.

The court also rejected petitioner's argument (Pet. C.A. Br. 19) that the BIA denied him due process by "deny[ing] his applications based on conclusions that are unsupported by the record or that resulted from a mischaracterization of the evidence." The court held that "there was plenty of due process here" because "all the normal aspects of due process were carried out": petitioner was able to be heard, was represented by a lawyer, and had a translator available when he decided to testify in Korean. App., infra, 2a. The court noted that petitioner was trying to "cloak a[n] abuse of discre tion argument [as] a due process argument" and that his argument that the agency abused its discretion in weighing the equities simply was not reviewable. Ibid.

The court of appeals then issued a written order in which it "affirmed" "for the reasons stated from the bench." Pet. App. B1-B3.

ARGUMENT

1. Petitioner contends (Pet. 10-16) that the court of appeals erred in finding that it lacked jurisdiction to review the BIA's denial of the discretionary relief of cancellation of removal. The decision below is correct, and it does not conflict with any decision of this Court or any other court of appeals. The decision below is also unpublished and non-precedential, and thus it cannot give rise to the type of circuit conflict that could warrant this Court's review. Further review of petitioner's fact- bound claim is therefore unwarranted.

a. The court of appeals correctly found that it lacked jurisdiction to review petitioner's claim that his situation merited a discretionary grant of cancellation of removal. Under the express terms of 8 U.S.C. 1252(a)(2)(B)(i), no court shall have jurisdiction to review a judgment "re garding the granting of relief under * * * [8 U.S.C.] 1229b." The relief petitioner sought, discretionary can cellation of removal, is relief under Section 1229b, Pet. App. F3, and his argument on appeal was that the BIA erred in denying him that discretionary relief based on a consideration of the positive and negative equities in his particular case. App., infra, 2a; see Pet. C.A. Br. 13- 16. The court of appeals thus correctly found that it lacked jurisdiction to consider the argument under Sec tion 1262(a)(2)(B).

The court of appeals also correctly found that peti tioner's claim does not fall within the statutory excep tion permitting federal-court review of "constitutional claims or questions of law." 8 U.S.C. 1252(a)(2)(D) (Supp. V 2005). As petitioner himself has recognized (Pet. 2; Pet. C.A. Br. 12-13), cancellation of removal is discretionary, and whether an applicant has met his bur den of demonstrating that cancellation is justified de pends on the facts of his particular case. See In re C-V- T-, 22 I. & N. Dec. at 10-12; In re Marin, 16 I. & N. Dec. at 584-585. Here, there was no serious dispute about the applicable legal standards; as both the IJ and the BIA recognized, settled legal precedent directs the weighing of the positive and negative equities to determine if an exercise of discretion is warranted in the particular case. See Pet. App. C3, F13-F15. Petitioner's argument was that the BIA should have granted him cancellation of removal in the exercise of discretion because he did not intend to deceive the IJ and because he showed suffi cient evidence of remorse for his domestic violence of fense. See Pet. C.A. Br. 13-16; see also Pet. 13-14. Peti tioner's disagreement with the IJ's and BIA's applica tion of settled precedent to the facts of his case does not raise a "constitutional claim[]" or "question[] of law." Instead, his claim is nothing more than a challenge to the exercise of the BIA's broad discretion, and "chal lenges to the exercise of routine discretion * * * do not raise 'constitutional claims or questions of law.'" De La Vega v. Gonzales, 436 F.3d 141, 146 (2d Cir. 2006); see App., infra, 2a.

Although petitioner attempted to recast his claim as one raising questions of law by asserting that the BIA departed from its own precedent, Pet. C.A. Br. 13-16, the court of appeals correctly recognized that the claim was nothing more than a challenge to the agency's dis cretionary decision. Petitioner and the government agreed on the governing legal standard, Pet. C.A. Br. 12-13; Gov't C.A. Br. 22, and petitioner's argument that the BIA failed to follow its own precedent was simply an argument that the BIA should have given more weight to his assertions of rehabilitation and remorse, Pet. C.A. Br. 15-16. Similarly, while petitioner now suggests (Pet. 11) that the BIA improperly "ma[de] its own findings of fact," he does not identify what facts the BIA impermissibly found or how such fact-finding consti tuted legal error, and the BIA's decision makes clear that it relied on the IJ's factfinding, see Pet. App. C1- C5. Petitioner's claim amounts to a quarrel with the manner in which the IJ and the Board balanced his equi ties, and thus the court of appeals lacked jurisdiction to consider that claim. Indeed, if petitioner's challenge to the BIA's exercise of its statutorily conferred discretion were considered a "constitutional claim[] or question[] of law" under Section 1252(a)(2)(D), that phrase would lose all meaning. See, e.g., Higuit v. Gonzales, 433 F.3d 417, 420 (4th Cir.) ("We are not free to convert every im migration case into a question of law, and thereby un dermine Congress's decision to grant limited jurisdic tion over matters committed in the first instance to the sound discretion of the Executive."), cert. denied, 126 S. Ct. 2973 (2006).2

The court of appeals also correctly rejected peti tioner's attempt to recast his disagreement with the agency's discretionary decision as a due process claim. Petitioner's sole "due process" argument was that he was deprived of "a meaningful opportunity to present his application" "when the BIA denied his applications based on conclusions that are unsupported by the record or that resulted from a mischaracterization of the evi dence." Pet. C.A. Br. 19. Petitioner's invocation of the Due Process Clause does not change the nature of his claim, which amounts on this record to nothing more than a challenge to the agency's exercise of its discre tion. As the Third Circuit recently explained, the fed eral courts of appeals "are not bound by the label at tached by a party to characterize a claim and will look beyond the label to analyze the substance of a claim" in determining whether a claim is reviewable under Sec tion 1252(a)(2), because "[t]o do otherwise would elevate form over substance and would put a premium on artful labeling." Jarbough v. Attorney Gen. of the United States, 483 F.3d 184, 189 (3d Cir. 2007).

In any event, in addition to finding that it lacked ju risdiction over petitioner's claim cloaked in due process terms, the court of appeals also found no substance to the claim insofar as foundational elements of due pro cess were concerned, concluding that petitioner received a fair hearing and all the process he was due. App., in fra, 2a. Petitioner contends (Pet. 14) that he has a due process right to a grant of discretionary cancellation of removal, but due process guarantees that a certain pro cess be followed, not that a certain outcome be reached. E.g., In re Real Estate Title & Settlement Servs. Anti trust Litig., 869 F.2d 760, 768 (3d Cir.) ("[P]rocedural due process does not protect litigants from any particu lar outcome; instead it protects litigants from arbitrary denials of rights."), cert. denied, 493 U.S. 821 (1989). Petitioner's "attempt to 'dress up' his challenge with the language of 'due process'" is insufficient to establish federal-court jurisdiction over his claim. Avendano- Espejo v. Department of Homeland Security, 448 F.3d 503, 505-506 (2d Cir. 2006). "[A]liens have no fundamen tal right to discretionary relief from removal for pur poses of due process and equal protection." Tovar- Landin v. Ashcroft, 361 F.3d 1164, 1167 (9th Cir. 2004). While petitioner does have a liberty interest in avoiding removal from the United States, that liberty interest is accorded constitutionally adequate due process by af fording petitioner notice and an opportunity to contest the charge of removability, which was done in this case.

b. Petitioner asserts without explanation (Pet. 8-10, 15-17) that the unpublished, oral decision below conflicts with other Sixth Circuit decisions and with decisions of the Third, Seventh, Eighth, and Ninth Circuits. Peti tioner is mistaken. Moreover, the unpublished oral deci sion below could not give rise to the type of conflict in published decisions in the courts of appeals that would warrant this Court's review.

As an initial matter, the alleged conflicts between the decision below and other Sixth Circuit decisions provide no basis for this Court to grant review, because it is not the Court's task to reconcile intra-circuit conflicts. See Wisniewski v. United States, 353 U.S. 901, 902 (1957); Sup. Ct. R. 10. If a conflict existed, it should be left for the Sixth Circuit to resolve.3

Further, the decision below does not conflict with the decisions of the Third, Seventh, Eighth, and Ninth Cir cuits cited by petitioner. See Pet. 10, 15-16. In three of those cases, the courts of appeals recognized that they generally lacked jurisdiction to "review the BIA's deci sion to deny an alien cancellation of removal" but noted that they could consider purely legal questions. Solano- Chicas v. Gonzales, 440 F.3d 1050, 1054-1055 (8th Cir. 2006); see Morales-Morales v. Ashcroft, 384 F.3d 418, 421 (7th Cir. 2004) (finding jurisdiction to review statu tory interpretation question regarding eligibility re quirements); Cabrera-Alvarez v. Gonzales, 423 F.3d 1006, 1009 (9th Cir. 2005) (similar). The other case con cerns withholding of removal, a different form of relief than cancellation of removal, and it is inapposite because the court there found that the decision at issue was not a discretionary decision entrusted to the Attorney Gen eral, whereas petitioner concedes that the BIA's deter mination that he does not merit cancellation of removal is such a discretionary determination. See Alaka v. At torney Gen. of the United States, 456 F.3d 88, 101, 103- 104 (3d Cir. 2006) (finding jurisdiction to consider statu tory interpretation question regarding eligibility for withholding of removal).

Petitioner has not explained how the decision below is in conflict with any of the decisions he cites or even what predicate legal question he believes is in dispute in his case. The fact that courts have recognized that other applicants for cancellation of removal raising other, dif ferent claims, such as statutory interpretation argu ments, have raised questions of law does not mean that those decisions conflict with the decision below. Rather, it highlights the fact that petitioner's challenge was merely a disagreement with the BIA's weighing of the equities in making a purely discretionary decision. And the courts of appeals agree that they lack jurisdiction to review such a claim. See, e.g., Elysee v. Gonzales, 437 F.3d 221, 223-224 (1st Cir. 2006) (because the alien's claim merely "attack[ed] * * * the factual findings made and the balancing of factors engaged in by the IJ," it "d[id] not raise even a colorable constitutional claim or question of law"); Higuit, 433 F.3d at 420 (no jurisdic tion to review alien's claim that the IJ erred in "balanc[ing] [the alien's] positive and negative attrib utes" because it was "an equitable determination based on factual findings rather than a question of law").

2. Petitioner contends (Pet. 9, 16-19) that he is not removable because he was not convicted of a crime of domestic violence. That claim was raised for the first time in the petition for a writ of certiorari, and review should be denied on that basis. Moreover, petitioner asserts no disagreement in the circuits on this point, and the finding of removability is correct. Petitioner's fact- bound claim therefore does not warrant further review.

Petitioner's new claim was not included in any brief to the court of appeals, nor was it raised in the petition for rehearing en banc. Not only did petitioner fail to raise the claim below, but he has conceded throughout this litigation that he is removable based on his domestic violence conviction. See Pet. App. F3 ("[Petitioner] fur ther conceded that he was subject to removal under Sec tion 237(a)(2)(E)(I) of the Act."); Pet. C.A. Br. 3 ("[Peti tioner] admitted that the allegations contained in the [Notice to Appear] were true, conceded that he was sub ject to removal, and applied for cancellation of re moval."); see also A.R. 255-256, 476-485. Petitioner ac knowledges this concession in his certiorari petition and makes no attempt to explain why he did not raise his claim below. See Pet. 7 ("In removal proceedings con ducted in Detroit, Michigan, [petitioner] conceded removability and applied for cancellation of removal."). Because petitioner did not raise the issue before the BIA and thus failed to exhaust his administrative reme dies on the claim, a reviewing court is without jurisdic tion to consider it. See 8 U.S.C. 1252(d)(1). Review is also unwarranted under this Court's consistent practice of declining to review contentions not presented to or decided by the court of appeals. See, e.g., Gonzales v. Duenas-Alvarez, 127 S. Ct. 815, 823 (2007) (collecting cases).

In any event, the record supports the IJ's determina tion that petitioner is removable as charged because he committed a "crime of domestic violence." The INA pro vides that an alien is removable if he is convicted of a "crime of domestic violence," and it defines a "crime of domestic violence" as "any crime of violence (as defined in section 16 of title 18) against a person committed by a current or former spouse." 8 U.S.C. 1227(a)(2)(E)(i). Under Section 16 of Title 18, a "crime of violence" in cludes "an offense that has as an element the use, at tempted use, or threatened use of physical force against the person or property of another." 18 U.S.C. 16(a).

Petitioner was convicted of domestic assault under a Michigan law that prohibits "assault[ing] or assault[ing] and batter[ing]" a spouse or other member of the house hold. Mich. Comp. Laws Ann. § 750.81(2) (West 2004); see A.R. 503, 517; Pet. 6. That crime has the attempted or threatened use of force as an element because it re quires an "assault," which the Michigan courts have de fined as an "intentional unlawful offer of corporal injury to another person by force, or force unlawfully directed toward the person of another, under circumstances which create a well-founded apprehension of imminent contact, coupled with the apparent present ability to accomplish the contact." Espinoza v. Thomas, 472 N.W.2d 16, 21 (Mich. Ct. App. 1991). Thus, a conviction for domestic assault satisfies the statutory definition of a "crime of violence" under 18 U.S.C. 16(a).4

Moreover, even if petitioner's crime were not cate gorically a "crime of violence," the conviction documents make clear that his particular offense was such a crime. See Shepard v. United States, 544 U.S. 13, 26 (2005); Taylor v. United States, 495 U.S. 575, 599-602 (1990). The complaint and the judgment in this case state that petitioner "did make an assault upon [his wife] with a dangerous weapon, to-wit: scissors," and that peti tioner's conduct "resulted in personal injury" to his wife. A.R. 487-491, 518. Those documents demonstrate that petitioner threatened to use, and did use, physical force against his wife. See Lopes v. Keisler, 505 F.3d 58, 62-63 (1st Cir. 2007) (concluding that similar Rhode Island assault and battery offense was a "crime of violence"). Petitioner concedes (16-17) that an offense can be a "crime of violence" under this modified categorical ap proach, and he presents no argument regarding why his conviction was not one for a "crime of violence." Fur ther review of petitioner's forfeited, fact-bound claim is therefore unwarranted.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

 

PAUL D. CLEMENT
Solicitor General
JEFFREY S. BUCHOLTZ
Acting Assistant Attorney
General
DONALD E. KEENER
JENNIFER LEVINGS
Attorneys

 

APRIL 2008

 

1 In this case, the court of appeals ruled from the bench, and no official transcript was prepared. Because petitioner did not include a transcript of the court of appeals' ruling with the petition, the govern ment obtained an audio recording from the court of appeals and transcribed the relevant portion. App., infra, 1a-2a. The government will make the audio recording available to the Court upon request.

2 Review is also unwarranted because even if the court of appeals had jurisdiction to review petitioner's claim, the result in this case would be the same, because neither the IJ nor the BIA adopted a new legal rule for evaluating applications for cancellation of removal. For example, petitioner suggests (Pet. 13-14) that the BIA changed its legal standard to require a showing of rehabilitation or remorse in every case. But settled BIA precedent makes clear that, while rehabilitation is not an absolute prerequisite in every cancellation case involving an alien with a criminal record, it may be considered as a relevant factor and an applicant "who has a criminal record will ordinarily be required to pre sent evidence of rehabilitation before relief is granted as a matter of discretion." In re C-V-T-, 22 I. & N. Dec. at 12.

3 In any event, there is no such conflict. Abu-Khaliel v. Gonzales, 436 F.3d 627, 630-631 (6th Cir. 2006), addressed jurisdiction to review a denial of a continuance, not a denial of cancellation of removal, and thus presents no conflict. Santana-Albarran v. Ashcroft, 393 F.3d 699, 703 (6th Cir. 2005), is similarly inapposite. In that case, the court of appeals stated that a finding that an alien "failed to demonstrate a continuous physical presence," one of the statutory eligibility require ments for cancellation of removal, "is a non-discretionary factual deter mination and properly subject to appellate review." Ibid. In this case, in contrast, there is no question raised about continuous physical pre sence; petitioner merely disagrees with the BIA's weighing of the equities.

4 Petitioner contends (Pet. 18-19) that his crime was not a "crime of violence" because a person can commit a battery in Michigan by "a mere 'willful touching.'" Petitioner's reliance on the definition of bat tery is misplaced because, as petitioner concedes (Pet. 6), the offense to which he pleaded guilty requires an assault. Although the definition of "assault" includes "an attempt to commit a battery," Michigan v. Terry, 553 N.W.2d 23, 25 (Mich. Ct. App. 1996), this Court's categorical ap proach even in criminal cases does not require that "every conceivable factual offense covered by a statute must necessarily" involve use, threatened use, or attempted use of force, so long as "the conduct en compassed by the elements of the offense, in the ordinary case," would involve such conduct. James v. United States, 127 S. Ct. 1586, 1597 (2007) (applying this approach determine whether a crime is a "violent felony"). The domestic assault offense for which petitioner was con victed is a crime that "by its nature" (ibid.) involves the use, threatened use, or attempted use of force, and thus it qualifies as a "crime of violence."

 

 

APPENDIX A

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

No. 06-3991

TAE KYONG KIM, PETITIONER

v.

ALBERTO GONZALES, ATTORNEY GENERAL
OF THE UNITED STATES, RESPONDENT

May 30, 2007

ORAL DECISION THE COURT OF APPEALS

Before: GILMAN, GIBBONS, and GRIFFIN, Circuit Judges.

 

All right, counsel, as in the previous case, we have authority under Rule 36 of the Sixth Circuit Rules to rule from the bench if the panel is convinced that-what the result should be, and there is no jurisprudential pur pose of writing a written opinion. And we do so in-and this is an appropriate case where we will do that under Rule 36; and our ruling is going to be to uphold the rul ing of the Board of Immigration Appeals.

This is an unusual case-as I said, it's not the typical asylum case-but a cancellation of removal decision which raises the question of whether we have jurisdiction. And if we don't have jurisdiction then obviously whether we would otherwise agree with the discretion of the Attorney General as expressed by the immigration judge and the BIA is irrelevant. And the problem is that the Section 242(a)(2)(B) does say that we have no juris diction to review a discretionary relief under the cancel lation of removal. And the argument by the petitioner basically is that they disagree; they feel that it was an abuse of discretion in the weighing of the factors. But in the case of the C-V-T- which is a 1998 decision it does say you balance the equities. Well, I don't think there's really any question in our mind that the immigration judge in both hearings and the BIA in its written deci sions did balance the equities.

And I do think there is a valid argument or point made by the government's counsel that you can't cloak a[n] abuse of discretion argument into a due process argument. The question is what-unless there was a lack of due process here we simply have no jurisdiction to overrule the decision, the discretionary decision of the Attorney General and we find that there was plenty of due process afforded here. I mean, obviously there was a right to be heard, a right to counsel, right to a transla tor, all the normal aspects of due process were carried out here by the- both the immigration judge and the Board of Immigration Appeals. Therefore we conclude that we have no jurisdiction under Section 242(a)(2)(B) and therefore we'll invect [sic]-I guess technically we'll probably call it a dismissal of the appeal for lack of juris diction. A copy of this oral ruling will be available by transcript if either party desires through the clerk's office.

I'll ask if either counsel or either of my colleagues have anything further to add? No. That will be the rul ing of the court. Thank you both very much.