                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-26-2005

Valdivia v. INS
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-1311




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Recommended Citation
"Valdivia v. INS" (2005). 2005 Decisions. Paper 1314.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1314


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APS-187
                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      NO. 04-1311
                                   ________________

                                 VICTORIO VALDIVIA,
                                          Appellant

                                             v.

                        U.S. I.N.S; QUARANTILLO, MS., DIST.
                             DIR. NEWARK NEW JERSEY
                       ____________________________________

                     On Appeal From the United States District Court
                              For the District of New Jersey
                               (D.C. Civ. No. 03-cv-00547)
                        District Judge: Honorable Jose L. Linares
                     _______________________________________

        Submitted For Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
                                   March 31, 2005

        Before: SLOVITER, NYGAARD AND FUENTES, CIRCUIT JUDGES

                                 (Filed: April 26, 2005)
                               _______________________

                                       OPINION
                               _______________________

PER CURIAM.

       Appellant, Victorio Valdivia, is a native and citizen of Chile who entered the

United States in 1981 as a visitor and adjusted to lawful permanent resident status in

1991. In 1993, he was convicted in New Jersey of receiving stolen property and
sentenced to four years in prison. In 1995, he was again convicted in New Jersey, this

time for theft, and sentenced to four years in prison. In December 1997, the former

Immigration and Naturalization Service (INS) sought Valdivia’s removal for having been

convicted of an aggravated felony. After numerous proceedings before the immigration

tribunals and a prior federal habeas proceeding (the details of which are not relevant

here), the INS amended the charge against Valdivia to include removal for having been

convicted of two crimes involving moral turpitude. In 2002, an Immigration Judge (IJ)

ordered Valdivia removed to Chile on that basis and denied his application for a

discretionary waiver of inadmissibility under INA § 212(c), 8 U.S.C. § 1182(c). On

January 21, 2003, the BIA affirmed that decision.

         Valdivia then commenced this 28 U.S.C. § 2241 habeas corpus proceeding to

challenge, among other things, the denial of § 212(c) relief.1 Prior to its repeal in 1996, §

212(c) gave the Attorney General authority to waive inadmissibility of otherwise

deportable legal aliens. See INS v. St. Cyr, 533 U.S. 289, 294 (2001).2 Section § 212(c)



   1
     Valdivia also seemed to raise a constitutional challenge to medical treatment received
in custody. The District Court treated this claim as arising under 42 U.S.C. § 1983 and
properly held that Valdivia failed to state a claim upon which relief can be granted.
   2
       Prior to its repeal, § 212(c) stated in part:

                 Aliens lawfully admitted for permanent residence who temporarily
                 proceeded abroad voluntarily and not under an order of deportation, and
                 who are returning to a lawful unrelinquished domicile of seven consecutive
                 years, may be admitted in the discretion of the Attorney General . . . .


                                                  2
was interpreted to allow a permanent resident alien with an unrelinquished domicile of

seven consecutive years (such as Valdivia) to apply for a discretionary waiver from

deportation. Id. at 295. Because Valdivia was eligible for § 212(c) relief at the time of

his state-court convictions, he was permitted by virtue of the holding in St. Cyr to apply

for the waiver.

       In its Answer to the § 2241 petition, the government argued, inter alia, that the

District Court lacked jurisdiction to review the IJ’s discretionary denial of § 212(c) relief.

The District Court agreed, holding that it was without jurisdiction to review an exercise of

administrative discretion such as a § 212(c) decision. Valdivia timely filed this appeal.

       We have jurisdiction over Valdivia’s appeal pursuant to 28 U.S.C. § 1291.

Valdivia has been granted leave to proceed in forma pauperis in this Court. Because we

conclude that his appeal lacks an arguable basis in law or fact, we will dismiss it as

“frivolous” pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).

       This Court has held that “under section 2241, habeas proceedings do not embrace

review of the exercise of discretion, or the sufficiency of the evidence.” Bakhtriger v.

Elwood, 360 F.3d 414, 420 (3d Cir. 2004). As such, “the scope of review under section

2241 must be confined to questions of constitutional and statutory law.” Id. at 424.

       Valdivia raised no constitutional or statutory legal question with regard to his

removal proceedings, and no legal argument challenging the standard employed by the IJ

and BIA in rejecting his § 212(c) claim. Rather, his sole claim is that a discretionary §



                                              3
212(c) waiver should have been granted given the facts of his case (i.e., because he has

been in the United States for twenty years and has various ailments and disabilities). On

this record, the District Court did not err in refusing to review the agency’s discretionary

denial of § 212(c) relief.

       We note, in any event, that Valdivia plainly was not entitled to § 212(c) relief, as

the record fully supports a finding that the equities weighed against his application.

Valdivia claimed that his medical needs warrant remaining in the United States and that

he will suffer an “extreme and unusual hardship” in Chile. There is, however, no

evidence of record indicating that Valdivia cannot receive medical treatment in Chile for

his alleged depression and shoulder injury, nor does it appear that his removal to Chile

would work a hardship that is at all “extreme or unusual.” In addition, Valdivia is an

educated person in his late forties with only a cousin in the United States, and his

remaining family, with whom he has contact, lives in Chile. Valdivia does not claim any

history of past persecution in Chile or any fear of future harm. Valdivia entered the

United States as an adult (age 26) and did not spend his formative years here. He has a

criminal record of at least ten theft-related arrests with eight convictions and a parole

violation. On this record, the denial of § 212(c) relief could not possibly be disturbed.

       For these reasons, we will dismiss the appeal pursuant to § 1915(e)(2)(B)(i).




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