                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-14-2008

Cospito v. Atty Gen USA
Precedential or Non-Precedential: Precedential

Docket No. 07-1619




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                                              PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT
                  ________________

                        NO. 07-1619
                     ________________

              LESLINE VERONICA COSPITO,
                   a/k/a Lesline Stewart,
                                Petitioner

                                v.

    ATTORNEY GENERAL OF THE UNITED STATES,
                       Respondent


          ___________________________________

           On a Petition For Review of a Decision
            of the Board of Immigration Appeals
                 (Agency No. A74-967-725)
          Immigration Judge: Hon. Miriam K. Mills
          __________________________________

         Submitted Under Third Circuit LAR 34.1(a)
                     August 13, 2008

  Before: FUENTES, ALDISERT AND GARTH, CIRCUIT
                     JUDGES

                   (Filed: August 14, 2008)

Steven A. Morley, Esquire
Morley, Surin & Griffin
325 Chestnut Street
Suite 1305-P
Philadelphia, PA 19106

      Attorney for Petitioner
Peter D. Keisler
 Assistant Attorney General, Civil Division
David V. Bernal
 Assistant Director
Andrew C. Maclachlan, Esquire
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044

       Attorneys for Respondent
                      _________________

                 OPINION OF THE COURT


PER CURIAM
        Petitioner, Lesline Veronica Cospito, petitions for review
of a final order of removal issued by the Board of Immigration
Appeals (“BIA”). For the reasons that follow, the petition for
review will be dismissed in part and denied in part.

                                 I.
       Cospito, a native and citizen of Jamaica, arrived in the
United States on February 14, 1991 as non-immigrant temporary
worker with authorization to remain in this country until July 31,
1991. Cospito remained longer and, despite having two
convictions for crimes involving moral turpitude (i.e.,
Pennsylvania retail theft convictions from June 30, 1993 and
March 28, 1996), Cospito managed to adjust her status to that of
a lawful permanent resident (“LPR”) on October 20, 1998 on the
basis of a marriage to a man nearly forty years her senior. After
determining that Cospito willfully misrepresented the material
facts of her two state court convictions by failing to disclose
them, the former Immigration and Naturalization Service (now
the Department of Homeland Security (“DHS”)) served her with
a Notice to Appear on December 9, 2002, charging her as being
subject to removal under INA § 237(a)(1)(A) [8 U.S.C. §

                                2
1227(a)(1)(A)], as an alien inadmissible at the time of entry or
adjustment of status because she procured her immigrant visa
and admission to the United States by fraud or the willful
misrepresentation of a material fact and as an alien who had
been convicted of a crime involving moral turpitude, as well as
under INA § 237(a)(2)(A)(ii) [8 U.S.C. § 1227(a)(2)(A)(ii)] as
an alien who had been convicted of two or more crimes
involving moral turpitude after admission. A.R. 574-577.1 The
government subsequently filed additional factual allegations in
support of the charge of inadmissibility on the basis of Cospito’s
failure to disclose two previous applications for permanent
residence when she sought to adjust her status in 1996. A.R.
570-573.

       The Immigration Judge (“IJ”) sustained the removal
charges based on Cospito’s certified records of conviction and
on her 1996 I-485 adjustment application (wherein she
misrepresented that she had not previously applied for
adjustment when, in fact, two prior adjustment applications had
been filed on her behalf). Cospito thereafter requested a waiver
under INA § 212(h) for her two criminal convictions and a §
212(i) waiver for her failure to disclose those convictions and
her prior applications on the I-485. The IJ, however, determined
that Cospito was statutorily ineligible for a waiver under either
INA §§ 212(h) or 212(i) [8 U.S.C. §§ 1182(h) & (i)] insofar as
both waivers require the applicant to establish hardship to a
qualifying relative if the applicant is removed, a requirement the
IJ concluded Cospito was unable to meet. Finally, the IJ found
that Cospito was also statutorily ineligible for voluntary
departure. Accordingly, the IJ denied petitioner’s waiver
requests and ordered her removed to Jamaica. A.R. 91-100.

        On appeal, the BIA adopted and affirmed the IJ’s
decision with certain additions. The BIA found meritless
Cospito’s argument that the DHS was collaterally estopped from
initiating removal proceedings since it should have previously
known of her criminal history and the existence of her prior



  1
      “A.R.” denotes the Administrative Record.

                                3
applications to adjust status, notwithstanding that she denied
these facts in writing. The BIA concluded that both it and the IJ
lacked the authority to estop the DHS from pursuing a lawful
course of action. The BIA went on to state that Cospito is not
entitled to retain her status as a lawful permanent resident when
that status was erroneously granted based upon her own
misrepresentations. The BIA further found no clear error with
the IJ’s factual findings, agreed that Cospito failed to show that
extreme hardship would occur to a qualifying relative for waiver
purposes, and affirmed the IJ’s denial of voluntary departure as
it would have denied that benefit in the exercise of discretion
given her repeated attempts to obtain an immigration benefit by
providing false information. A.R. 39. The BIA dismissed
Cospito’s appeal accordingly.

        Cospito thereafter petitioned this Court for review of the
BIA’s order on February 6, 2006. The following day, we issued
our decision in Duvall v. Attorney General, 436 F.3d 382, 390
(3d Cir. 2006), wherein we concluded that “the INA will be held
to incorporate common law principles of collateral estoppel,”
and that the BIA is required to apply those principles under
certain circumstances. We thus granted respondent’s unopposed
motion and remanded the matter to the BIA for it to consider
petitioner’s contention that the IJ should have terminated
removal proceedings in accordance with the doctrine of
collateral estoppel in light of the previous grant of LPR status to
Cospito. See C.A. No. 06-1488. In a decision subsequently
issued on February 2, 2007, the BIA once again dismissed
Cospito’s appeal after concluding that she could not use her LPR
status, which she secured through fraud, as a shield against
removal.

       The BIA recognized this Court’s determination in Duvall,
436 F.3d at 387, that collateral estoppel can apply in
immigration proceedings because the adjudicatory functions of
the Immigration Courts and the BIA are inherently judicial in
nature. However, the BIA also referenced our citation in Duvall
to the Supreme Court’s holding in Pearson v. Williams, 202 U.S.
281 (1906), that collateral estoppel did not prevent the DHS
from instituting deportation proceedings after initially granting

                                 4
an alien permission to enter the country. The BIA observed that
“such a decision was based primarily on the limited scope and
non-adjudicative nature of the entry examination, ‘attributes that
are not shared by modern removal hearings.’” A.R. 3, quoting
Duvall, 436 F.3d at 389. The BIA likened the DHS’s initial
decision to grant an adjustment of status in this case more to the
entry examination mentioned in Duvall than an adversarial
process. The BIA explained that, when Cospito’s adjustment
determination was made, there was no adjudicative hearing with
opposing parties. Additionally, the DHS had no evidentiary
burden of proof to meet and was not required to rebut any
evidence concerning whether Cospito was eligible to adjust. The
BIA also noted that Cospito’s written assertions (including those
in her adjustment application) that she had no criminal history
were themselves evidence for DHS to consider. The BIA further
found that the IJ did not clearly err in finding those written
materials to be more persuasive of what Cospito told the DHS
agency official than her subsequent unsupported statements to
the contrary. Finally, the BIA noted the fact that Cospito did not
contend that she had filed an application of waiver of
inadmissibility with the DHS, which should have been required
if the DHS knew of her convictions. Id., citing INA § 212(h)
(conviction waiver); INA § 212(i) (fraud waiver). Thus, neither
waiver was actually adjudicated or litigated during Cospito’s
adjustment of status before the DHS, and, according to the BIA,
Cospito’s use of fraud to affect the outcome of that application
demonstrated that it was not a “full and fair litigation.” Id. 4
(“The need for a fraud waiver under section 212(i) of the
Act–for fraudulently obtaining an immigration benefit–arose as a
result of [Cospito’s] actions during that adjustment process, and
thus could not have been adjudicated at that time.”). In light of
the foregoing, the BIA concluded that the “DHS was not
collaterally estopped from raising or litigating any issues before
the Immigration Judge or [the] Board concerning [Cospito’s]
adjustment of status, removability, or any waiver of
inadmissibility.” Id.

       Once again, Cospito petitions this Court for review of the
BIA’s order. In that petition, Cospito asserts that the DHS
should be collaterally estopped from raising as a basis for her

                                5
removal convictions that it either knew about, or should have
known about, at the time of the grant of LPR status, and that the
IJ failed to properly consider all of the evidence of extreme
hardship presented in support of her nunc pro tunc waiver
requests and to examine such evidence in the aggregate.

                                 II.
        We have jurisdiction over the petition pursuant to INA §
242 [8 U.S.C. § 1252]. As the government correctly points out,
however, our jurisdiction does not extend to an agency’s factual
and discretionary determinations underlying the denial of
waivers based on an analysis involving extreme hardship. See
INA 242(a)(2)(B) [8 U.S.C. § 1252(a)(2)(B)(i)]; Sukwanputra v.
Gonzales, 434 F.3d 627, 634 (3d Cir. 2006) (“[W]e join our
sister courts in concluding that despite the changes of the REAL
ID Act, factual or discretionary determinations continue to fall
outside the jurisdiction of the courts of appeals entertaining a
petition for review.”). See also Mendez-Moranchel v. Ashcroft,
338 F.3d 176, 179 (3d Cir. 2003) (judgment regarding whether
an alien will suffer an “exceptional and extremely unusual
hardship” for cancellation of removal is a discretionary one);
Rodrigues-Nascimento v. Gonzales, 485 F.3d 60, 62 (1st Cir.
2007) (IJ’s analysis of extreme hardship under § 1182(h) “is
precisely the type of review that is precluded by 8 U.S.C. §
1252(a)(2)(B)”); Camara v. Dep’t of Homeland Sec., 497 F.3d
121, 124 (2d Cir. 2007) (Court of Appeals lacks jurisdiction to
review the factual and discretionary decisions underlying the
denial of an application for a waiver of inadmissibility based on
“extreme hardship”). Moreover, while we retain jurisdiction
under INA § 242(a)(2)(D) [8 U.S.C. § 1252(a)(2)(D)] to review
colorable “constitutional claims or questions of law,” that
jurisdictional grant is “narrowly circumscribed.” See Jarbough
v. Attorney General, 483 F.3d 184, 188 (3d Cir. 2007). A party
cannot confer jurisdiction on this Court where none exists simply
by attaching a particular label to the claim raised in a petition for
review. Id. at 189-90.

       Cospito’s challenge to the waiver determination in the
instant case centers on the IJ’s consideration of the evidence
petitioner submitted in support of a finding of extreme hardship

                                 6
to her qualifying relatives.2 More particularly, Cospito argues
that the IJ gave “short shrift to crucial evidence,” see Pet’s Brief
at 33, “ignored crucial and uncontradicted evidence,” id. at 34,
“failed to consider the emotional impact” on Mr. Cospito of the
loss of his two young children who would return to Jamaica with
petitioner, id., and that the IJ “simply looked at individual
factors” rather than provide an evaluation of the factors in the
aggregate. Id. at 36. We agree with the government that these
contentions do not raise constitutional claims or questions of
law. Cospito’s arguments amount to nothing more than
“quarrels over the exercise of discretion and the correctness of
the factual findings reached by the agency.” Emokah v.
Mukasey, 523 F.3d 110, 119 (2d Cir. 2008), quoting Camara,
497 F.3d at 124. See also Arias v. Attorney General, 482 F.3d
1281, 1284 (11th Cir. 2007) (claim that BIA and IJ erred in
failing to consider and weigh all the factors presented by
petitioner in support of the waiver is simply a challenge to the
BIA’s and IJ’s exercise of discretion which Court of Appeals
lacks jurisdiction to review). Accordingly, we will dismiss that
portion of Cospito’s petition for review challenging the agency’s
discretionary waiver determination.

       The remainder of the petition for review will be denied.
“Application of collateral estoppel is a question of law, Nat’l
R.R. Passenger Corp. v. Pa. Pub. Util. Comm’n, 342 F.3d 242,
252 (3d Cir. 2003), and we exercise plenary review of the BIA’s
legal determinations, subject to established principles of



  2
     We do not consider petitioner’s challenge that the agency
misinterpreted the time frame under which a nunc pro tunc
waiver request based on extreme hardship should be evaluated as
no such argument was presented to the IJ or BIA. See 8 U.S.C.
§ 1252(d)(1) (exhaustion of administrative remedies mandatory
and jurisdictional); see also Bonhometre v. Gonzales, 414 F.3d
442, 447 (3d Cir. 2005) (“To exhaust a claim before the agency,
an applicant must first raise the issue before the BIA or IJ, so as
to give it the opportunity to resolve a controversy or correct its
own errors before judicial intervention.” (internal quotations and
citation omitted)).

                                 7
deference.” Szehinskyj v. Atty. Gen., 432 F.3d 253, 255 (3d Cir.
2005). In full agreement with the BIA, we hold that the DHS
was not collaterally estopped from raising issues concerning
Cospito’s adjustment of status, removability or any waiver of
inadmissibility.

        It is well established that in order for collateral estoppel
to apply, the following requirements must be met: “(1) the
identical issue was previously adjudicated; (2) the issue was
actually litigated; (3) the previous determination was necessary
to the decision; and (4) the party being precluded from
relitigating the issue was fully represented in the prior action.”
Id., quoting Henglein v. Colt Indus. Operating Corp., 260 F.3d
210, 209 (3d Cir. 2001). To be certain, “[t]he doctrine of
collateral estoppel has long been understood to apply in all
proceedings that may be deemed ‘adjudicative’” in nature.
Duvall, 436 F.3d at 390, citing United States v. Utah Constr. &
Mining Co., 384 U.S. 394, 421-22 & n. 20 (1966). In the instant
case, for the ample and cogent reasons provided by the BIA, we
can find no error with the BIA’s conclusion that Cospito’s
interview with an agency official regarding her adjustment of
status application was not an “adjudicative” proceeding. Cospito
has failed to identify a single case where such an adjustment
interview or similar examination was considered sufficiently
adjudicative in nature for purposes of applying the collateral
estoppel doctrine, and our own research has not uncovered any.
To the contrary, the Fifth Circuit Court of Appeals has
specifically concluded that, because “applications for adjustment
of status are not normally adversarial in nature, and do not
involve an IJ,” the petitioner’s “adjustment of status was not
adjudicatory in nature, and thus is not entitled to res judicata
effect.” Andrade v. Gonzales, 459 F.3d 538, 545 (5th Cir.
2006), citing Medina v. INS, 993 F.2d 499, 503 (5th Cir. 1993).
We agree with the conclusion of our sister circuit. There is
nothing in the record before us which establishes that Cospito’s
adjustment of status interview was conducted in any unusual
manner, and nothing that would render that interview “inherently
judicial in nature.” Furthermore, as we stated in Duvall,
collateral estoppel “will not preclude relitigation of the issue
when there is a substantial difference in the procedures

                                 8
employed by the prior and current tribunals....” Duvall, 436 F.3d
at 391. There can be little doubt that there exists a substantial
difference between the procedures employed by the agency
official during the adjustment of status in this case and those
governing a adversarial proceeding conducted by an IJ.

        Moving beyond the non-adjudicative nature of the
adjustment of status, Cospito’s collateral estoppel challenge
faces additional insurmountable hurdles which require little in
the way of elaboration. As the BIA determined, the issue of
waiver was never raised, litigated or adjudicated during
Cospito’s adjustment proceeding – a necessary precondition for
application of the doctrine of collateral estoppel, see Szehinskyj,
432 F.3d at 255 – given what the IJ found to be fraudulent
actions on the part of Cospito. Finally, we can find no fault with
the BIA’s conclusion that Cospito’s fraudulent actions during
the adjustment of status process prevented the “full and fair
litigation” of the very issues she now seeks to collaterally estop
the DHS from litigating. See, e.g., Pereira-Barbeira v. INS, 523
F.2d 503, 507 n. 3 (2d Cir. 1975) (“The fraud on the basis of
which [a petitioner] was granted ... adjustment of status
necessarily vitiated any res judicata effect of those proceedings
in the current deportation proceedings.”).

                               III.
       Accordingly, given the foregoing reasons, the petition for
review is (1) denied as to Cospito’s challenge to the BIA’s
determination that the DHS was not collaterally estopped from
raising issues concerning her adjustment of status, removability
or any waiver of inadmissibility, and (2) dismissed as to
Cospito’s challenge to the agency’s discretionary denial of her
waiver requests.3




  3
    Given our disposition, we need not reach the issue of the
“fugitive disentitlement” doctrine raised by the respondent.
