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No. 08-697

 

In the Supreme Court of the United States

MARTIN GJIDODA, PETITIONER

v.

ROBIN BAKER, FIELD OFFICE DIRECTOR, IMMIGRATION AND CUSTOMS ENFORCEMENT

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

BRIEF FOR THE RESPONDENT IN OPPOSITION

EDWIN S. KNEEDLER
Acting Solicitor General
Counsel of Record
MICHAEL F. HERTZ
Acting Assistant Attorney
General
DONALD E. KEENER
PAPU SANDHU
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTION PRESENTED

Whether the REAL ID Act of 2005, Pub. L. No. 109- 13, Div. B, 119 Stat. 302, permissibly divested the dis trict court of jurisdiction to consider petitioner's petition for a writ of habeas corpus.

 

 

In the Supreme Court of the United States

 

No. 08-697

MARTIN GJIDODA, PETITIONER

v.

ROBIN BAKER, FIELD OFFICE DIRECTOR,
IMMIGRATION AND CUSTOMS ENFORCEMENT

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 opinion of the court of appeals (Pet. App. A1-A6) is unreported. An earlier opinion of the court of appeals (Pet. App. E1-E9) is not published in the Federal Repor ter but is reprinted in 48 Fed. Appx. 982. The judgment of the district court (Pet. App. B1) is unreported. The decisions of the Board of Immigration Appeals (Pet. App. D1-D4) and the immigration judge (Pet. App. C1- C10) are unreported.

JURISDICTION

The judgment of the court of appeals was entered on August 21, 2008. The petition for a writ of certiorari was filed on November 19, 2008. The jurisdiction 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., legal immigration into the United States is controlled by the issuance of immi grant visas abroad by consular officers acting under the authority of the Secretary of State. 8 U.S.C. 1154(b), 1201(a). Congress has also authorized the Attorney General and the Secretary of Homeland Security to re lieve certain qualifying aliens who are already in the United States of the need to depart and obtain a visa through consular processing by adjusting their status to that of a lawful permanent resident. See 8 U.S.C. 1255(a); Randall v. Meese, 854 F.2d 472, 473-474 (D.C. Cir. 1988) (R.B. Ginsburg, J.), cert. denied, 491 U.S. 904 (1989). Adjustment of status is discretionary and is "a matter of grace, not right." Elkins v. Moreno, 435 U.S. 647, 667 (1978).

The statute authorizing the Attorney General to ad just the immigration status of an alien to that of a lawful permanent resident requires, inter alia, that the alien be eligible to receive an immigrant visa and be admissi ble to the United States for permanent residence. 8 U.S.C. 1255(a). An alien who has been convicted of, or admits having committed, a crime involving moral turpi tude is inadmissible to the United States, 8 U.S.C. 1182(a)(2)(A)(i)(I), and is therefore ineligible to adjust his status. Some aliens may seek a waiver of this ground of inadmissability under 8 U.S.C. 1182(h), however, which grants the Attorney General discretion to waive the inadmissibility of certain criminal aliens if he deter mines that the alien's removal would result in extreme hardship to the alien's United States citizen or lawfully resident spouse, parent, or child. The Attorney General may not, however, waive the inadmissibility of an alien "who has been convicted of (or who has admitted com mitting acts that constitute) murder." Ibid.

b. In 1961, Congress amended the INA to establish a petition for review filed in the court of appeals as the "sole and exclusive procedure" by which an alien could seek review of a final deportation order. Act of Sept. 26, 1961, Pub. L. No. 87-301, _ 5(a), 75 Stat. 651 (8 U.S.C. 1105a(a) (1994)). Congress created an exception, how ever, stating that "any alien held in custody pursuant to an order of deportation may obtain judicial review thereof by habeas corpus proceedings." _ 5(a), 75 Stat. 652.

That basic framework remained in place until 1996, when Congress passed the Antiterrorism and Effec tive Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214, and the Illegal Immigration

Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, Div. C, _ 309(c), 110 Stat. 3009-625. AEDPA and IIRIRA limited judicial review of final orders of removal to the courts of appeals for most aliens, imposed a uniform 30-day deadline for the filing of petitions for judicial review, and appeared to eliminate all judicial review for aliens who had com mitted certain crimes that rendered them inadmissible or deportable. 8 U.S.C. 1252(a)(1), (2)(C), (b)(1) and (2). In INS v. St. Cyr, 533 U.S. 289, 305-314 (2001), however, this Court interpreted the 1996 Acts as not eliminating the ability of criminal aliens to seek limited habeas re view in district court.

2. Petitioner is a native of the former Federal Re public of Yugoslavia. Pet. App. C2. In 1973, a Yugosla vian court sentenced petitioner to a term of 20 years of imprisonment in connection with the death of two peo ple, including his wife. Id. at C6, D2.1

In March 1985, having been released from prison, petitioner was admitted to the United States on a tem porary visitor visa. Petitioner married after entering the United States, and he and his current wife have two United States citizen children. In 1995, petitioner filed an application for adjustment of status. On August 30, 1995, the former Immigration and Naturalization Ser vice (INS) denied petitioner's application for adjustment of status and issued an order to show cause why he should not be removed. Pet. App. A2, C2-C3, E4.

3. a. On February 5, 1996, the INS commenced re moval proceedings. Pet. App. C2, E4. Petitioner con ceded removability but renewed his application for ad justment of status. Id. at C3, C8. A hearing was held before an immigration judge (IJ), at which evidence was introduced about petitioner's 1973 Yugoslavian convic tion. Id. at A3.

The IJ determined that petitioner was ineligible for adjustment of status and ordered him removed. Pet. App. C1-C10. The IJ concluded that petitioner's 1973 Yugoslavian conviction had been for a crime involving moral turpitude, which rendered him inadmissible and thus required him to obtain a waiver under 8 U.S.C. 1182(h) in order to be eligible for adjustment of status. Id. at C8. The IJ noted that petitioner had not sought a waiver of inadmissibility under Section 1182(h), and she determined that petitioner would not have been eligible for such a waiver in any event because his 1973 offense constituted an "aggravated felony." Id. at C9.

b. On April 22, 2002, the Board of Immigration Ap peals (BIA) affirmed the IJ's decision. Pet. App. D1-D4. The BIA agreed that petitioner's 1973 Yugoslavian con viction was for a crime involving moral turpitude. Id. at D2. The BIA observed that Section 1182(h)'s aggrava ted-felony bar applies only "in the case of an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence," 8 U.S.C. 1182(h), and it concluded that, because peti tioner "is not a lawful permanent resident of this coun try, the aggravated felony bar does not apply." Pet. App. D3. The BIA determined, however, that petitioner was nonetheless ineligible for a Section 1182(h) waiver because it was "clear" that he "f[ell] within the scope of th[e] prohibition" (ibid.) on granting waivers to aliens "who ha[ve] been convicted of (or who ha[ve] admitted committing acts that constitute) murder." 8 U.S.C. 1182(h).

c. Petitioner filed a petition for review with the court of appeals. Pet. App. E4. Because petitioner's removal proceedings were commenced before April 1, 1997, and the final order of removal was entered after October 30, 1996, the petition for judicial review was governed by IIRIRA's "transitional" rules. See IIRIRA § 309(c)(1) and (4), 110 Stat. 3009-625, 626; see Pet. App. E5-E6. Those rules provided that "there shall be no appeal per mitted in the case of an alien who is inadmissible or de portable by reason of having committed a criminal of fense covered in [8 U.S.C. § 1182(a)(2)]." IIRIRA § 309(c)(4)(G), 110 Stat. 3009-626. One of the offenses listed in Section 1182(a)(2) is "a crime involving moral turpitude." 8 U.S.C. 1182(a)(2)(A)(i)(I).

On October 22, 2002, the court of appeals dismissed the petition for review. Pet. App. E1-E9. The court re cited the "general principle" that "a federal court always has jurisdiction to examine its own jurisdiction," and it observed that "[a] number of circuits have agreed that in the immigration context the court of appeals can de termine whether the crimes asserted to be the jurisdic tional bar are within the meaning of the statute." Id. at E6-E7 (quoting United States v. Ruiz, 536 U.S. 622, 628 (2002)). The court of appeals stated, however, that it could "find no basis" for rejecting the conclusions of the IJ and the BIA that the government had adequately established the existence of petitioner's 1973 Yugosla vian conviction and that the conviction was for a crime involving moral turpitude. Id. at E8.2 Because it dis missed the petition for review on jurisdictional grounds, see ibid., the court of appeals did not review the BIA's determination that petitioner was ineligible for a waiver of inadmissibility under 8 U.S.C. 1182(h). See Pet. App. A4.

4. a. Although he would have been eligible to do so, see St. Cyr, 533 U.S. at 305-314, petitioner did not file a petition for a writ of habeas corpus in an appropriate district court following the court of appeals' dismissal of his petition for review.

b. On May 11, 2005, the President signed into law the REAL ID Act of 2005 (REAL ID Act), Pub. L. No. 109-13, Div. B, 119 Stat. 302. The REAL ID Act elimi nates habeas corpus jurisdiction to review orders of re moval, and provides, subject to one exception not at is sue here, that "the sole and exclusive means for judicial review of an order of removal" is by way of a timely filed petition for review in the appropriate court of ap peals. § 106(a)(1), 119 Stat. 310 (8 U.S.C. 1252(a)(5)); see § 106(a)(1)(A)(i) and (ii), 119 Stat. 310 (making simi lar amendments to 8 U.S.C. 1252(a)(2)(A), (B) and (C)). The REAL ID Act further provides that an alien whose criminal convictions previously operated to preclude judicial review of an order of removal by way of a peti tion for review may now obtain "review of constitutional claims or questions of law" via such a petition. § 106(a)(1)(A)(iii), 119 Stat. 310 (8 U.S.C. 1252(a)(2)(D)). The REAL ID Act specifically provides that its new pro cedures "shall apply to cases in which the final adminis trative order of removal, deportation, or exclusion was issued before, on, or after the date of the enactment of this division." § 106(b), 119 Stat. 311 (8 U.S.C. 1252 note (Supp. V 2005)).

5. On August 17, 2006-nearly three years and ten months after the court of appeals dismissed his petition for judicial review and a year and three months after the REAL ID Act's enactment-petitioner filed a petition for a writ of habeas corpus in district court. Pet. App. A4. In that filing, petitioner asserted that the BIA had erred in concluding that he was ineligible for a waiver of inadmissibility under 8 U.S.C. 1182(h). Ibid. The dis trict court dismissed the habeas petition for lack of sub ject matter jurisdiction. Id. at B1.

6. The court of appeals affirmed. Pet. App. A1-A6. The court explained that the REAL ID Act had "elimi nated habeas petitions as a means for judicial review of a removal order." Id. at A5. The court agreed with oth er courts of appeals that the REAL ID Act's juris diction-stripping provisions do not constitute "an uncon stitutional suspension of the writ because the new statu tory scheme provides an 'adequate substitute' by allow ing judicial review of the final order of removal through the courts of appeals." Ibid. Although petitioner ar gued "that he ha[d] been denied the opportunity to chal lenge the BIA's erroneous deportation order," the court stated that petitioner's argument "ignores the fact that he chose to wait to pursue his claims." Ibid. Because petitioner "waited approximately three years after this court affirmed the BIA's decision and over a year after the enactment of the [REAL ID Act] before filing his habeas petition," the court of appeals held that "[h]e cannot be heard to argue that the [REAL ID Act] now improperly bars his claims." Id. at A5-A6. As a result, the court of appeals determined that "the merits of the BIA's decision"-that is, the BIA's conclusion that peti tioner was not eligible for a discretionary waiver of inad missibility under 8 U.S.C. 1182(h)-"are not subject to review." Id. at A6.

ARGUMENT

1. Petitioner contends (Pet. 15-24) that the court of appeals erred in concluding that the REAL ID Act de prived the district court of jurisdiction to consider his petition for a writ of habeas corpus. The court of ap peals' decision is correct and does not conflict with the decisions of any other court of appeals. In addition, the specific question presented here has no prospective im portance and concerns only a limited group of criminal aliens. Further review is therefore unwarranted.

a. As the courts of appeals have uniformly held, the REAL ID Act "unequivocally eliminates habeas corpus review of orders of removal," Marquez-Almanzar v. INS, 418 F.3d 210, 215 (2d Cir. 2005), replacing that avenue of review with a right to petition for review in a court of appeals.3 See 8 U.S.C. 1252(a)(5). The REAL ID Act thus "takes away no substantive right but simply changes the tribunal that is to hear the case." Hallowell v. Commons, 239 U.S. 506, 508 (1916).

Petitioner does not dispute the court of appeals' gen eral conclusion that the REAL ID Act "eliminate[s] ha beas petitions as a means for judicial review of a re moval order." Pet. App. A5. Instead, he asserts that Congress "overlooked" (Pet. 19) the situation of aliens, such as himself, who were previously ineligible to file a petition for review but whose orders of removal became final more than 30 days before the REAL ID Act took effect. Because petitioner is now time-barred from filing a petition for judicial review, he argues that the REAL ID Act should be construed to permit his habeas petition to proceed.

Petitioner's arguments are meritless. The REAL ID Act specifically identifies one-and only one-discrete category of aliens who are to be excused from compli ance with the newly applicable requirement that the only way to obtain judicial review of a final order of re moval is via the filing of a timely petition for review in the appropriate court of appeals. In Section 106(c) of the REAL ID Act, Congress provided that all habeas petitions filed by aliens challenging a final order of re moval that were pending in the district courts on the date of its enactment "shall [be] transfer[ed] * * * to the court of appeals for the circuit in which a petition for review could have been properly filed under [8 U.S.C. 1252 or 8 U.S.C. 1101 note]," where they shall thereafter be treated as timely filed petitions for review. § 106(c) 119 Stat. 311 (8 U.S.C. 1252 note (Supp. V 2005)). Peti tioner does not fall within that category, however, be cause he did not have a pending habeas petition on the date of the REAL ID Act's enactment. In fact, peti tioner failed to file his habeas petition until a year and three months after the REAL ID Act took effect.

Petitioner also asserts (Pet. 19) that "[a] strict read ing of" the REAL ID Act has the effect of "depriving [him] of habeas review without providing an adequate, let alone any, substitute." Several statements in the petition for a writ of certiorari could be taken to suggest that petitioner could not have filed a petition for a writ of habeas corpus before the REAL ID Act was enacted because he was not "in the physical custody of" the De partment of Homeland Security (DHS) at that time. Pet. 1, see Pet. 19, 24. As petitioner elsewhere acknowl edges (Pet. 7), however, he "could have challenged the BIA's decision through a petition for a writ of habeas corpus" as soon as the court of appeals dismissed his petition for judicial review for lack of jurisdiction in 2002. Accord Mustata v. United States Dep't of Justice, 179 F.3d 1017, 1021 n.4 (6th Cir. 1999) (stating that the issuance of a final order of removal is sufficient to ren der an alien "in custody" for purposes of 28 U.S.C. 2241, regardless of whether the alien is physically detained); see Simmonds v. INS, 326 F.3d 351, 354-355 (2d Cir. 2003) (same); Aguilera v. Kirkpatrick, 241 F.3d 1286, 1291 (10th Cir. 2001) (same). Because the court of ap peals dismissed his petition for review on October 22, 2002, and because the REAL ID Act did not take effect until May 11, 2005, there was a period of more than two- and-a-half years during which petitioner could have- but did not-seek to obtain judicial review of his current claims by way of a petition for a writ of habeas corpus. As the court of appeals correctly observed, petitioner "cannot be heard to argue that the [REAL ID Act] now improperly bars his claims, when he failed to diligently pursue them when the opportunity was available." Pet. App. A5-A6.

Nor does this case raise any valid concerns about notice (see Pet. 22). The REAL ID Act was enacted on May 11, 2005. Despite having been "put on notice that a significant change to our immigration laws had taken place," Kolkevich v. Attorney Gen., 501 F.3d 323, 338 n.9 (3d Cir. 2007), petitioner made no attempt to preserve his ability to seek judicial review until more than a year later. "Given that [the REAL ID Act] clearly expressed Congress's intention to cut short the filing time afforded criminal aliens under § 2241, [he] should have been aware that something was afoot." Ibid.; accord Singh v. Mukasey, 533 F.3d 1103, 1109 (9th Cir. 2008) ("The sign ing into law of [the REAL ID Act] on May 11, 2005 * * * put Singh on sufficient notice that jurisdiction over his petition now rested with the court of appeals and that he would need to act promptly to obtain re view.").

b. The court of appeals' decision in this case does not conflict with the decisions of any other court of appeals. With respect to aliens (such as petitioner) who could not file a petition for judicial review prior to the REAL ID Act's enactment, the Second, Third, and Ninth Circuits have determined that it was appropriate to fashion a 30- day "grace period" from the effective date of the REAL ID Act for the filing of a petition for judicial review in the appropriate court of appeals. See Singh, 533 F.3d at 1108-1109 (see Pet. 8-9, 23); Ruiz-Martinez v. Mukasey, 516 F.3d 102, 117 (2d Cir. 2008) (see Pet. 9, 23), Kol kevich, 501 F.3d at 336-337 (see Pet. 9, 23). Petitioner, however, did not attempt to file a post-REAL ID Act petition for judicial review in the court of appeals within 30 days of the REAL ID Act's enactment. Instead, he filed a petition for a writ of habeas corpus in federal dis trict court and he did so "over a year" (Pet. App. A5) after the REAL ID Act took effect. Petitioner has failed to demonstrate that any court would conclude that it had jurisdiction over such an action. See Dalombo Fontes v. Gonzales, 483 F.3d 115, 119-120 (1st Cir.) (refusing to recognize a post-REAL ID Act "grace period" for the filing of a petition for a writ of habeas corpus and noting that there had been a seven-month period prior to the REAL ID Act's enactment during which the alien in that case could have sought habeas relief), amended on reh'g, 498 F.3d 1 (1st Cir. 2007), cert. denied, 128 S. Ct. 2473 (2008).4

c. Certiorari is also unwarranted because the thres hold jurisdictional issue is not one of any prospective importance, and, as petitioner acknowledges (Pet. 22), the class of affected aliens is "small." As the Third Cir cuit has observed:

The dearth of case law on this topic is due, undoubt edly, to the fact that these issues are pertinent only to a very narrow class of aliens. First, only criminal aliens are affected, since it is only that type of alien that had access to habeas review prior to [the Real ID Act's] enactment. Second, the pool is further re duced to those criminal aliens who, at the time [the Real ID Act] became effective, had not yet filed their habeas petitions.

Kolkevich, 501 F.3d at 330.

2. Petitioner also seeks this Court's review (Pet. 9- 15) of the BIA's 2002 conclusion that he is ineligible for a waiver of inadmissibility under 8 U.S.C. 1182(h). Fur ther review is not warranted.

a. The court of appeals did not reach the question of whether petitioner was eligible for a Section 1182(h) waiver because it concluded that the REAL ID Act de prived it of jurisdiction to consider petitioner's petition for a writ of habeas corpus. Pet. App. A6. This Court "ordinarily do[es] not decide in the first instance issues not decided below." Adarand Constructors, Inc. v. Mineta, 534 U.S. 103, 109 (2001) (per curiam) (citation omitted). In addition, this Court could not reach the merits of petitioner's challenge to the BIA's 2002 deci sion unless it were to grant review, and conclude that the court of appeals erred, with respect to the threshold jurisdictional issue. As explained previously, further review is not warranted with respect to that question.

b. In any event, petitioner's challenges to the BIA's 2002 decision are entirely factbound. Petitioner likewise does not contend that the BIA's conclusion that he is ineligible for a waiver under Section 1182(h) conflicts with any decision of this Court or of a court of appeals.

c. Petitioner's challenges to the BIA's 2002 decision are also without merit. As a procedural matter, peti tioner claims (Pet. 9, 11) that the BIA should not have considered whether his 1973 Yugoslavian conviction was one for "murder" within the meaning of 8 U.S.C. 1182(h) but rather should have remanded the matter to the IJ.

The BIA certainly would have had discretion to order such a remand, but it was under no obligation to do so. Whether petitioner is eligible for a Section 1182(h) waiver is ultimately a legal question, and the BIA did not err in concluding that no further "findings of fact" (Pet. 11) were needed in order to resolve the issue. See Pet. App. D3 (stating that "[i]t is clear that" petitioner is ineligible for a Section 1182(h) waiver).5 It is common for reviewing tribunals to affirm a previous decision maker's judgment on alternative, but closely related grounds, and, as the party seeking a discretionary immi gration benefit, it was petitioner's burden to demon strate that he was eligible for a waiver of inadmissbility under Section 1182(h). See 8 C.F.R. 1240.8(d); Matovski v. Gonzales, 492 F.3d 722, 738 (6th Cir. 2007). Because the 1973 Yugoslavian conviction that formed the basis for the IJ's decision that petitioner was ineligible for a waiver under Section 1182(h) unquestionably involved petitioner's role in causing the death of two other peo ple, petitioner cannot reasonably claim surprise that the BIA would consider whether that conviction constituted one for "murder" under that same section.

Petitioner's claim that the BIA erroneously con cluded that his 1973 conviction was for "murder" within the meaning of Section 1182(h) (Pet. 11-14) also lacks merit. By describing his 1973 offense as "a crime of pas sion" (Pet. 13), petitioner appears to suggest that it was more akin to manslaughter than murder. But Yugosla via had its own version of a manslaughter statute (Arti cle 136), which applied to killings that occurred on the "spur of the moment" due to a "fit of rage." See Pet. for Writ of Habeas Corpus, Exh. H at 79. Petitioner, how ever, was convicted of violating a different statute (Arti cle 135), which an English-language exhibit to his peti tion for a writ of habeas corpus describes as a "murder" statute. Ibid.

Petitioner suggests (Pet. 14-15) that the BIA erred in relying on a foreign conviction in determining that he was ineligible for a waiver under Section 1182(h). But it is well-established that foreign convictions may consti tute grounds of removability where the conduct for that conviction is deemed criminal by United States stan dards. In re McNaughton, 16 I. & N. Dec. 569, 572 (B.I.A. 1978), aff'd, 612 F.2d 457 (9th Cir. 1980); accord In re Eslamizar, 23 I. & N. Dec. 684, 688 & n.6 (B.I.A. 2004); see Pasquini v. INS, 557 F.2d 536, 539 (6th Cir. 1999) (interpreting statute setting forth ground of de portability for drug convictions to include foreign con victions). And to the extent that petitioner argues that the government failed to produce sufficient evidence to support the existence of his 1973 conviction (see Pet. 13- 14), the court of appeals specifically rejected that claim before dismissing his petition for judicial review in 2002. See Pet. App. E7-E8.

d. Finally, even if petitioner were eligible for a dis cretionary waiver of inadmissibility under Section 1182(h), it is extremely unlikely that he would be gran ted such a waiver in light of the extremely serious na ture of his 1973 Yugoslavian conviction. The pertinent regulations provide that "[t]he Attorney General, in gen eral, will not favorably exercise discretion" to grant a Section 1182(h) waiver "in cases involving violent or dangerous crimes, except in extraordinary circum stances." 8 C.F.R. 1212.7(d). Regardless of whether the offense that led to petitioner's 1973 conviction was more akin to "murder" or "manslaughter," it was, quite clear ly, a "violent or dangerous crime[]." Ibid. In addition, petitioner has failed to demonstrate that his removal would cause the sort of "'exceptional and extremely un usual hardship'" or implicate the kind of "national secu rity or foreign policy considerations" that the regula tions indicate may sometimes justify granting a Section 1182(h) waiver in cases where an alien has committed such a crime. Ibid.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

EDWIN S. KNEEDLER
Acting Solicitor General
MICHAEL F. HERTZ
Acting Assistant Attorney
General
DONALD E. KEENER
PAPU SANDHU
Attorneys

 

 

FEBRUARY 2009

1 In his habeas petition, petitioner admitted that he killed not only his wife but "her lover" as well. Pet. for Writ of Habeas Corpus ¶ 16; see id. Exh. F at 4 (petitioner stating that he was "convicted of killing my wife and her communist lover while in bed in my house, after her lover pulled a gun on me").

2 Petitioner states that he "is not challenging the classification of his conviction as one that involves moral turpitude." Pet. 7 n.3.

3 See Kolkevich v. Attorney Gen., 501 F.3d 323, 329 (3d Cir. 2007); Jama v. Gonzales, 431 F.3d 230, 232 (5th Cir. 2005); Gittens v. Menifee, 428 F.3d 382, 384 (2d Cir. 2005); Ishak v. Gonzales, 422 F.3d 22, 29 (1st Cir. 2005); Alvarez-Barajas v. Gonzales, 418 F.3d 1050, 1051 (9th Cir. 2005).

4 Petitioner also quotes (Pet. 23) the First Circuit's statement in Peguero-Cruz v. Gonzales, 500 F.3d 358, 361 n.4 (2007), that there was a "colorable" argument in the case before it "that applying the REAL ID Act to deprive us of jurisdiction over [the petition for review in that case] would amount to a violation of the Suspension Clause," cert. de nied, 128 S. Ct. 2473 (2008). But the panel did not reach any Suspension Clause issues because it concluded that any such argument had been waived. Ibid. In addition, Peguero-Cruz involved the sort of alien con templated in Singh, Ruiz-Martinez, and Kolkevich-that is, one who filed a petition for judicial review within 30 days of the REAL ID Act's enactment. See Peguero-Cruz, 500 F.3d at 359-361. Nor does the First Circuit's ultimate holding in Peguero-Cruz aid petitioner, because the panel viewed its earlier decision in Dalombo Fontes as "mak[ing] clear" that courts should "not carve out an additional path to judicial review where Congress has not." Id. at 361.

5 At any rate, although 8 C.F.R. 1003.1(d)(3)(iv) (see Pet. 11) "res trict[s] the BIA's ability to add new evidence to the record," that reg ulation does not "prohibit the BIA from making a factual determination * * * upon de novo review of the record before it." Belortaja v. Gonzales, 484 F.3d 619, 624 (2d Cir. 2007).