                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-22-2009

Oliveira, et al v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-3240




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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 08-3240
                                      ___________

                CARLOS CESAR DE OLIVEIRA; KATIA OLIVEIRA,
                                                      Petitioners

                                            v.

                 ATTORNEY GENERAL OF THE UNITED STATES,
                                                         Respondent
                    ____________________________________

                       On Petition for Review of an Order of the
                            Board of Immigration Appeals
                       (Agency Nos. A70 105 085, A97 480 680)
                    Immigration Judge: Honorable Eugene Pugliese
                      ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    June 17, 2009

           Before: SLOVITER, STAPLETON and COWEN, Circuit Judges

                             (Opinion filed : June 22, 2009)
                                     ___________

                                       OPINION
                                      ___________

PER CURIAM

      Carlos and Katia Oliveira petition for review of a Board of Immigration Appeals

(“BIA”) decision dismissing their appeal of the Immigration Judge’s (“IJ”) decision

denying their applications for adjustment of status and cancellation of removal. We will
dismiss in part and deny in part the petition for review.

       Carlos Oliveira and his wife, Katia, are natives and citizens of Brazil. Carlos

Oliveira first entered the United States in 1986 as a visitor. He departed in 1989 and tried

to re-enter the country in 1991 with a fraudulent visa. Carlos Oliveira was deported, but

he re-entered the United States again without inspection in 1995. Katia Oliveira came to

the United States in 1996 as a visitor. The couple married in New Jersey in 1999, and

they have two young children, who are United States citizens.

       Carlos Oliveira’s employer applied for, and was granted, a labor certification on

his behalf. The Immigration and Naturalization Service also approved a petition for alien

worker filed by his employer. Carlos Oliveira then applied for adjustment of status to a

lawful permanent resident. Katia Oliveira also applied for adjustment of status as a

derivative beneficiary of her husband’s adjustment of status application.

       In 2005, the Department of Homeland Security (“DHS”) denied the application,

finding Carlos Oliveira statutorily ineligible for adjustment of status because he was

inadmissible due to his earlier entry with a fraudulent visa and deportation. DHS also

found Carlos Oliveira statutorily ineligible for a waiver of inadmissibility under § 212(i)

of the Immigration and Nationality Act, which requires a showing of extreme hardship to

a citizen or lawfully resident spouse or parent. DHS noted that he did not have a

qualifying relationship. DHS also denied Katia Oliveira’s derivative application for an

adjustment of status. The Oliveiras unsuccessfully appealed the decisions to the



                                              2
Administrative Appeals Office.

       DHS began removal proceedings in 2006, charging that Carlos Oliveiras was

subject to removal because he was present without having been admitted or paroled, and

that Katia Oliveiras was subject to removal because she remained in the United States

longer than authorized. The Oliveiras conceded their removability and applied for

cancellation of removal and an adjustment of status.

       The IJ determined that Katia Oliveiras was statutorily ineligible for cancellation of

removal because she did not did not have ten years of continuous physical presence in the

United States as required by 8 U.S.C. § 1229b(b)(1)(A). The IJ further determined that

neither Katia nor Carlos Oliveiras established that their removal would result in

exceptional and extremely unusual hardship to a qualifying relative, in this case their

children, as required by 8 U.S.C. § 1229b(b)(1)(D). The IJ also stated that he did not find

Carlos Oliveiras worthy of a favorable exercise of discretion, noting that he came to the

United States with a fraudulent visa, that he had illegally re-entered after deportation, and

that he had provided a false answer on his adjustment of status application as to whether

he had ever been deported.

       The IJ also determined that he would deny the applications for adjustment of status

because Carlos Oliveiras had not filed a Form I-601, required for a § 212(i) waiver of

inadmissibility based on fraud. The IJ further noted that, even if Carlos Oliveiras had

filed the form, he would deny the waiver because Carlos Oliveiras had not shown the



                                              3
requisite extreme hardship to a qualifying relative. Finally, the IJ stated that he would

deny a § 212(i) waiver in the exercise of discretion based on Carlos Oliveira’s flagrant

violation of the immigration laws.

       The BIA adopted and affirmed the IJ’s decision, rejecting the Oliveiras’s

arguments that the IJ failed to consider the positive equities in their case, that Katia

Oliveira could derive the requisite continuous physical presence from her husband’s

presence, and that the current version of § 212(i) has an impermissible retroactive effect.

This petition for review followed.

       We must first determine our jurisdiction over the petition for review. The

Government correctly argues that we lack jurisdiction to review discretionary

determinations underlying the denial of waivers and cancellation of removal. See

Cospito v. Attorney General, 539 F.3d 166, 170-71 (3d Cir. 2008) (dismissing portion of

petition for review challenging § 212(i) discretionary waiver determination); Mendez-

Moranchel v. Ashcroft, 338 F.3d 176, 179 (3d Cir. 2003) (holding determination

regarding hardship requirement for cancellation of removal is discretionary and

unreviewable). The Oliveiras argue in their brief that they satisfied the hardship

requirement for cancellation of removal. Because we are without jurisdiction to consider

this argument, the Government’s motion to dismiss the petition for review is granted to

the extent the Oliveiras challenge the IJ’s determination that they did not satisfy the




                                               4
hardship requirements for cancellation of removal or the § 212(i) waiver.1

       The Oliveiras also argue that the BIA erred and violated their due process rights in

concluding that the application of § 212(i) does not have an impermissible retroactive

effect. The Oliveiras’s argument is based on the 1996 changes to § 212(i), requiring

Carlos Oliveira to show that his removal would result in extreme hardship to a United

States citizen parent or spouse. See 8 U.S.C. § 1182(i). The version of § 212(i) that was

in effect in 1991, when Carlos committed fraud in entering the United States, did not

require such a showing. Unlike the current version of § 212(i), the pre-IIRIRA version

also allowed parents of United States citizens to obtain a waiver.

       Although we have jurisdiction to review this constitutional question, see 8 U.S.C.

§ 1252(a)(2)(D), we decline to do so in this case. Even if we were to conclude that the

Oliveiras’s argument has merit, the IJ further found that the Oliveiras were not eligible

for the waiver because Carlos Oliveiras did not file the requisite Form I-601. The

Oliveiras have not challenged this ruling. Moreover, the IJ concluded that he would not

exercise his discretion to grant a waiver based on Carlos Oliveiras’s disregard of the

immigration laws, and we lack jurisdiction to review this decision. Thus, a decision



   1
     Although the Oliveiras also state in their brief that the IJ denied them a fair hearing by
failing to hear all of the relevant testimony, they do not explain or discuss this assertion.
Similarly, the Oliveiras have not developed an argument as to whether the IJ erred in
concluding that Katia Oliveira did not satisfy the ten-year continuous physical presence
requirement for cancellation of removal. These issues have not been properly preserved
for our review and we will not address them. See Kost v. Kozakiewicz, 1 F.3d 176, 182
(3d Cir. 1993).

                                              5
regarding the application of § 212(i) would not affect the outcome of this case.

       Accordingly, we will deny in part and dismiss in part the petition for review.




                                             6
