                                            Filed:   January 12, 2006

                   UNITED STATES COURT OF APPEALS

                       FOR THE FOURTH CIRCUIT


                             No. 05-1002
                            (A71-792-749)



LUIS A. HIGUIT,

                                                          Petitioner,

          versus

ALBERTO R. GONZALES, Attorney General,
                                                          Respondent.




                              O R D E R




     The Court amends its opinion filed January 3, 2006, by

replacing the word “Gonzalez” with the word “Gonzales” at lines

4, 17, and 18 of the second paragraph on page 4; at line 4 of the

second full paragraph on page 5; and at line 10 of the second

full paragraph on page 6.



                                     For the Court

                                     /s/ Patricia S. Connor
                                     ____________________________
                                                 Clerk
                            PUBLISHED

UNITED STATES COURT OF APPEALS
                  FOR THE FOURTH CIRCUIT


LUIS A. HIGUIT,                           
                            Petitioner,
                  v.
                                                 No. 05-1002
ALBERTO R. GONZALES, Attorney
General,
                      Respondent.
                                          
            On Petition for Review of a Final Order of
               the Board of Immigration Appeals.
                          (A71-792-749)

                       Argued: December 1, 2005

                       Decided: January 3, 2006

Before WIDENER, WILKINSON, and TRAXLER, Circuit Judges.



Dismissed in part and affirmed in part by published opinion. Judge
Wilkinson wrote the opinion, in which Judge Widener and Judge
Traxler joined.


                              COUNSEL

ARGUED: Arnedo Silvano Valera, Fairfax, Virginia, for Petitioner.
Bryan Stuart Beier, UNITED STATES DEPARTMENT OF JUS-
TICE, Office of Immigration Litigation, Washington, D.C., for
Respondent. ON BRIEF: Anna Mills Wagoner, United States Attor-
ney, John W. Stone, Jr., Assistant United States Attorney, OFFICE
OF THE UNITED STATES ATTORNEY, Greensboro, North Caro-
lina, for Respondent.
2                         HIGUIT v. GONZALES
                              OPINION

WILKINSON, Circuit Judge:

   Luis A. Higuit challenges a Board of Immigration Appeals decision
denying adjustment of status, asylum, and withholding of removal.
We hold that because Higuit raises no constitutional claim or question
of law on appeal, we lack subject matter jurisdiction to review his
denial of adjustment of status. REAL ID Act of 2005, Pub. L. No.
109-13, § 106(a)(1)(A)(iii), 119 Stat. 231, 310 (to be codified as 8
U.S.C. § 1252(a)(2)(D)). With respect to asylum and withholding of
removal, the immigration judge properly determined that Higuit was
ineligible for relief because he had engaged in persecution as an intel-
ligence operative for the Marcos regime in the Philippines. We there-
fore dismiss in part and affirm in part.

                                   I.

   Petitioner Luis Higuit is a native of the Philippines who entered the
United States in May 1990 on a nonimmigrant visa. Higuit overstayed
his visa and the Immigration and Naturalization Service (now the
Department of Homeland Security) sought his removal. See 8
U.S.C.A. § 1227(a)(1)(B) (West 2005). Higuit acknowledged remov-
ability, but applied for relief on the basis of asylum and withholding
of removal under the Immigration and Nationality Act, 8 U.S.C.A.
§§ 1158(a)(1), 1231(b)(3), and the Convention Against Torture
(CAT), see 8 C.F.R. § 208.16(c) (2005).

   In a hearing on October 15, 1999, the immigration judge (IJ)
denied these requests for relief. According to the IJ, Higuit was ineli-
gible for asylum and withholding of removal because, inter alia, the
relevant statutory and regulatory provisions foreclosed such relief for
any alien who "ordered, incited, assisted, or otherwise participated in
the persecution of any person on account of race, religion, nationality,
membership in a particular social group, or political opinion." 8
U.S.C.A. § 1158(b)(2)(A)(i); see also id. § 1231(b)(3)(B)(i); 8 C.F.R.
§ 1208.16(d)(2).

  The IJ found that Higuit met this definition because of his approxi-
mately ten years of service as an intelligence officer in the repressive
                         HIGUIT v. GONZALES                          3
Ferdinand Marcos government in the Philippines. Through covert
information-gathering, infiltration, and surveillance techniques,
Higuit provided his superiors with intelligence on the leftist New Peo-
ple’s Army (NPA) and other anti-Marcos communist groups. His asy-
lum application stated that "[b]ecause of my loyalty to the Marcos
group and to the Military Establishment, I hurt so many people" and
ruined careers, and furthermore, that individuals he investigated were
imprisoned and killed. Higuit testified to the same. The IJ determined
that while Higuit had never personally inflicted physical harm, he was
ineligible for asylum and withholding of removal because his intelli-
gence activities led to the persecution of NPA members and other
anti-government dissidents, including individuals who were only sus-
pected of maintaining ties to communist organizations. The IJ did,
however, grant Higuit’s application for voluntary departure.

   Higuit sought review in the Board of Immigration Appeals (BIA),
but during the pendency of his appeal requested a remand to the IJ for
consideration of a discretionary adjustment of status, in light of his
receipt of an approved Alien Worker petition. See 8 U.S.C. § 1255(i).
The BIA remanded the case to the IJ for further proceedings. The par-
ties agreed that Higuit was statutorily eligible for an adjustment of
status, and that the determinative question was whether he deserved
a favorable exercise of discretion. See Elkins v. Moreno, 435 U.S.
647, 667-68 (1978) (describing the balancing of equities in adjust-
ment of status determinations).

   Higuit submitted evidence that he was married, had a child born in
the United States, owned property in this country, and was active in
a church organization. On July 31, 2003, the IJ determined that these
positive factors did not tip the balance in favor of Higuit, due to his
persecution activities in the Philippines. The IJ noted that while an
alien who engaged in persecution was not barred from receiving an
adjustment of status, Higuit’s estimable conduct in the United States
did not outweigh his participation in the Marcos regime.

   Higuit renewed his appeal to the BIA, which adopted and affirmed
the IJ’s decisions denying adjustment of status, asylum, and withhold-
ing of removal. Higuit filed a timely appeal.
4                           HIGUIT v. GONZALES
                                     II.

    We first address the denial of adjustment of status. An adjustment of
status is a discretionary decision committed to the Attorney General. See
8 U.S.C.A. § 1255(i); see also Okpa v. INS, 266 F.3d 313, 315 (4th Cir.
2001) (per curiam). Notwithstanding an alien’s unlawful immigration
classification, the Attorney General may adjust an alien’s status to that
of a lawful permanent resident if, inter alia, the alien is physically present
in the United States, is admissible for permanent residence, and is eli-
gible to receive an immigrant visa, which must be immediately available.
See 8 U.S.C.A. § 1255(i). Prior to May 2005, it was clear that we
lacked jurisdiction to review such a determination. At that time, 8 U.S.C.
§ 1252(a)(2)(B)(i) (2000) provided that courts do not have jurisdiction
to review "any judgment regarding the granting of relief under section .
. . 1255 [adjustment of status]." See also Velasquez-Gabriel v. Crocetti,
263 F.3d 102, 104 n.1 (4th Cir. 2001).

   On May 11, 2005, however, Congress enacted the REAL ID Act.
REAL ID Act of 2005, Pub. L. No. 109-13, Div. B, 119 Stat. 231, 302-
23. The relevant provisions of the Act apply retroactively, and as a result
to this appeal. § 106(b), 119 Stat. at 311; Papageorgiou v. Gonzales,
413 F.3d 356, 358 (3d Cir. 2005). As applicable here, the REAL ID
Act added a new subsection (D) to the judicial review provisions in the
Immigration and Nationality Act. Subsection (D) states: "Nothing in
subparagraph (B) . . . 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).
Subsection (B)’s jurisdiction-stripping default remained unchanged, but
was revised to indicate that courts lacked jurisdiction "except as provided
in subparagraph (D)." Id. § 1252(a)(2)(B). In effect, therefore, the REAL
ID Act confers upon courts of appeal a narrowly circumscribed jurisdic-
tion to resolve constitutional claims or questions of law raised by aliens
seeking discretionary relief. See Obioha v. Gonzales, No. 04-2253, slip
op. at 4 n.3 (4th Cir. Dec. 8, 2005); Hamdan v. Gonzales, 425 F.3d 1051,
1057 (7th Cir. 2005).

   Under this framework, we lack jurisdiction to review the IJ’s denial
of adjustment of status. Higuit does not advance any constitutional
                           HIGUIT v. GONZALES                              5
claims. Nor is there any question that he meets the statutory prerequi-
sites for an adjustment of status, see 8 U.S.C.A. § 1255(i), as both
parties agree that he has. Instead, Higuit submits that he has raised a
question of law because the IJ determined that the persecution he car-
ried out in the Philippines outweighed his commendable conduct in
the United States. Specifically, he contends that he was denied adjust-
ment of status because the IJ had already determined that he was
barred from receiving asylum or withholding of removal on the basis
of his persecution activities.

   This does not present a question of law. In making the discretionary
adjustment of status determination, the IJ balanced Higuit’s positive and
negative attributes and did not rule in Higuit’s favor. The IJ relied upon
Higuit’s participation in the Marcos regime, but specifically noted that
Higuit was not precluded from receiving an adjustment of status because
he had engaged in persecution activities that would bar asylum and
withholding of removal. Whether Higuit’s actions in the Philippines met
the statutory and regulatory definitions of "persecution" was therefore
neither relevant to nor dispositive of the IJ’s ultimate adjustment of status
determination, which was an equitable determination based on factual
findings rather than a question of law.

   "[T]he REAL ID Act reflects a congressional intent to preserve [a]
broad effort to streamline immigration proceedings and to expedite re-
moval while restoring judicial review of constitutional and legal issues."
Grass v. Gonzales, 418 F.3d 876, 879 (8th Cir. 2005). Were Higuit cor-
rect that he has presented a question of law, almost every decision deny-
ing discretionary relief would henceforth be subject to judicial review.
We are not free to convert every immigration case into a question of law,
and thereby undermine Congress’s decision to grant limited jurisdiction
over matters committed in the first instance to the sound discretion of the
Executive. A constitutional claim or question of law may be embedded
in a denial of adjustment of status such that it presents a proper issue for
appellate court resolution, but that is plainly not the situation here.

                                    III.

  We now turn to the BIA’s decision affirming the IJ’s denial of
asylum and withholding of removal. We have jurisdiction to
consider
6                          HIGUIT v. GONZALES
these orders, 8 U.S.C.A. § 1252(a)(1), (a)(2)(B)(ii), and review legal
questions de novo, Blanco de Belbruno v. Ashcroft, 362 F.3d 272, 278
(4th Cir. 2004).

   Congress has specifically instructed that aliens who have engaged in
persecution are expressly ineligible for asylum or withholding of remov-
al. See Bah v. Ashcroft, 341 F.3d 348, 351 (5th Cir. 2003) (per curiam).
Asylum is unavailable where "the alien ordered, incited, assisted, or oth-
erwise participated in the persecution of any person on account of race,
religion, nationality, membership in a particular social group, or political
opinion." 8 U.S.C.A. § 1158(b)(2)(A)(i); see also id. § 1231(b)(3)(B)(i)
(setting forth virtually identical persecution exception for withholding
of removal under the Immigration and Nationality Act); 8 C.F.R. §
1208.16(d)(2) (same for withholding of removal under the CAT). If
there is evidence that the alien engaged in persecution, he must prove
by a preponderance of the evidence that he is not barred from relief on
this ground. See id. §§ 208.13(a), 208.16(d)(2), 1208.16(d)(2); see also
Hernandez v. Reno, 258 F.3d 806, 812 (8th Cir. 2001).

   Higuit argues that he did not engage in persecution because in the
course of his military intelligence-gathering activities, he never
physically tortured or harmed any person. We do not believe the
statutory language defines persecution so narrowly. Congress
expressly precluded the relief he seeks for any alien who "ordered,
incited, assisted, or otherwise participated in" persecution. 8 U.S.C.A.
§§ 1158(b)(2)(A)(i), 1231(b)(3)(B)(i) (emphasis added). The text makes
clear that while the commission of actual physical harm may be sufficient
to bring an alien within the persecution exception, it is not necessary.
See Singh v. Gonzales, 417 F.3d 736, 740 (7th Cir. 2005) (alien assisted
or participated in persecution where he helped bring religious
minorities into custody and was aware that they were physically abused).
Our conclusion that persecution is not limited to physical harm finds
support in the corpus of circuit law interpreting the identical language
in the Holtzman Amendment, which denies relief to former Nazis who
"ordered, incited, assisted, or otherwise participated in" persecution. 8
U.S.C.A. § 1182(a)(3)(E)(i); see, e.g., Negele v. Ashcroft, 368 F.3d 981,
983-84 (8th Cir. 2004) (actual participation in physical atrocities unne-
cessary for finding that alien engaged in persecution); Naujalis v. INS,
240 F.3d 642, 646 (7th Cir.
                          HIGUIT v. GONZALES                          7
2001) (government need not show that alien "personally participated
in the atrocities"); Hammer v. INS, 195 F.3d 836, 843 (6th Cir. 1999)
(same).

   In this case, the IJ determined Higuit was aware that his
information-gathering and infiltration led to the torture, imprison-
ment, and death of NPA members and other political opponents, as
well as individuals merely suspected of affiliation with these groups.
This brutality was the result of the information Higuit covertly gath-
ered and provided to his superiors over a period of approximately ten
years. See Singh, 417 F.3d at 740 (length of involvement relevant to
whether alien assisted or participated in persecution). Under these cir-
cumstances, the IJ properly determined that Higuit did assist or other-
wise participate in persecution. While "a distinction must be made
between genuine assistance in persecution and inconsequential associ-
ation with persecutors," id. at 739, there can be no dispute over
Higuit’s personal culpability in this case.

                                  IV.

   For the foregoing reasons, we dismiss the appeal in part and affirm
the judgment of the BIA in part.

                  DISMISSED IN PART AND AFFIRMED IN PART
