372 F3d 1118 San Pedro v. Ashcroft

372 F.3d 1118

Deoderico Polintan SAN PEDRO, Petitioner,
John ASHCROFT, Attorney General, Respondent.

No. 02-74367.

United States Court of Appeals, Ninth Circuit.

Submitted June 10, 2004.*

Filed June 23, 2004.

Nora E. Milner, Law Offices of Nora E. Milner, Esq., San Diego, CA, for the petitioner.

Anthony P. Nicastro, United States Department of Justice, Washington, DC, for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals.

Before: D.W. NELSON, KOZINSKI, and GRABER, Circuit Judges.

D.W. NELSON, Senior Circuit Judge:

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Deoderico San Pedro petitions for review of the Board of Immigration Appeals' (BIA) affirmance of the decision of the immigration judge (IJ) to deny San Pedro a waiver of removal under Immigration and Nationality Act (INA) § 237(a)(1)(H), 8 U.S.C. § 1227(a)(1)(H) (2001). Because San Pedro's appeal was summarily affirmed by the BIA, we review the IJ's decision as the final agency action. See Falcon Carriche v. Ashcroft, 350 F.3d 845, 849 (9th Cir.2003).


San Pedro, a citizen of the Philippines, entered the United States in 1987 on a preference visa as the unmarried son of a United States citizen. He willfully misrepresented to the INS that he was unmarried. In fact, however, he had been married since 1983 to a woman living in the Philippines.


In April 2000, the INS issued a Notice to Appear to San Pedro charging him with removabililty under INA § 237(a)(1)(A), 8 U.S.C. § 1227(a)(1)(A), for being an inadmissible alien at the time of entry under INA § 212(a)(6)(C)(i), 8 U.S.C. § 1182(a)(6)(C)(i).1 San Pedro conceded removability, but sought several forms of relief: a waiver under INA § 237(a)(1)(H), cancellation of removal and, in the alternative, voluntary departure.2


The IJ found San Pedro statutorily ineligible for the § 237(a)(1)(H) waiver on the ground that San Pedro's father, who had petitioned for his entry visa, died several months before San Pedro's visa interview. Although San Pedro did receive his visa in 1987, the IJ reasoned that, upon his father's death, it was automatically revoked, retroactive to the date of approval, under 8 C.F.R. § 205.1(a)(3)(i)(C). Therefore, the IJ deemed San Pedro incapable of meeting a threshold requirement of the § 237(a)(1)(H) waiver — possession of an immigrant visa or equivalent document.


The IJ also held that, "even if[San Pedro were] statutorily eligible for the requested waiver, the unfavorable factors in the record outweigh the favorable." The IJ assumed arguendo that San Pedro was statutorily eligible and concluded, after lengthy analysis, that San Pedro did not merit a favorable exercise of discretion. This alternative holding renders futile any review of the IJ's statutory interpretation of § 237(a)(1)(H)'s threshold eligibility requirements. See INS v. Bagamasbad, 429 U.S. 24, 25, 97 S.Ct. 200, 50 L.Ed.2d 190 (1976) (per curiam) ("As a general rule courts and agencies are not required to make findings on issues the decision of which is unnecessary to the results they reach."); Tarubac v. INS, 182 F.3d 1114, 1120 n. 5 (9th Cir.1999) ("An alternative holding is only adequate to support the result if it is separate from and independent of any other basis for the decision.").


To the extent that San Pedro challenges the IJ's discretionary determination, we lack jurisdiction to review San Pedro's petition under the judicial review provisions of INA § 242(a)(2)(B)(ii), 8 U.S.C. § 1252(a)(2)(B)(ii).3 In Spencer Enterprises, Inc. v. United States, 345 F.3d 683 (9th Cir.2003), we held that § 242(a)(2)(B)(ii) refers to "acts the authority for which is specified under the INA to be discretionary." Id. at 689. The specified discretion must be pure and unguided by legal standards. Id. at 689-90. Section 237(a)(1)(H) clearly specifies that the discretionary waiver determination lies in the hands of the Attorney General. See 8 U.S.C. § 1227(a)(1)(H) (removal "may, in the discretion of the Attorney General, be waived for any alien ... who [meets certain eligibility requirements]"). Although there are non-discretionary eligibility elements that must be met under § 237(a)(1)(H), "the ultimate authority whether to grant [the waiver] rests entirely in the discretion of the Attorney General." Spencer, 345 F.3d at 690; see also Matsuk v. INS, 247 F.3d 999, 1002 (9th Cir.2001). Accordingly, we lack jurisdiction.


San Pedro also argues that the streamlining of his appeal to the BIA violated his due process rights. This argument has been foreclosed by Falcon Carriche, 350 F.3d at 849-50.

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The panel unanimously finds this case suitable for decision without oral argument. Fed. R.App. P. 34(a)(2)(C)


INA § 212(a)(6)(C)(i) provides that, "Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this chapter is inadmissible." 8 U.S.C. § 1182(a)(6)(C)(i)


San Pedro does not challenge the denial of his applications for cancellation of removal and voluntary departure in this appeal


INA § 242(a)(2)(B) provides: "Notwithstanding any other provision of law, no court shall have jurisdiction to review — (i) any judgment regarding the granting of relief under section 1182(h), 1182(i), 1229b, 1229c, or 1255 of this title, or (ii) any other decision or action of the Attorney General the authority for which is specified under this subchapter to be in the discretion of the Attorney General, other than the granting of relief under section 1158(a) of this title." 8 U.S.C. § 1252(a)(2)(B)