                                                              FILED
                                                   United States Court of Appeals
                                                           Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                   September 25, 2007
                              FO R TH E TENTH CIRCUIT             Elisabeth A. Shumaker
                                                                      Clerk of Court

    C AROLIN E J. M cC LO SK EY ,

                Petitioner,

    v.                                                     No. 06-9598
                                                        (No. A98-584-618)
    PETER D. KEISLER, Acting                           (Petition for Review)
    Attorney General, *

                Respondent.



                              OR D ER AND JUDGM ENT **


Before PO RFILIO, A ND ER SO N, and BALDOCK , Circuit Judges.




         Petitioner Caroline J. M cCloskey, a citizen of G reat Britain and Northern

Ireland, challenges a decision by the Bureau of Immigration and Customs




*
       On September 17, 2007, Peter D. Keisler became the Acting Attorney
General. In accordance with Rule 43(c)(2) of the Federal Rules of Appellate
Procedure, M r. Keisler is substituted for A lberto R. Gonzales as the respondent in
this action.
**
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Enforcement (ICE) denying her challenge to the execution of a removal order.

Because we lack jurisdiction, we dismiss the petition.

                                   B ACKGROUND

      M s. M cCloskey entered this country in September 2001 under the V isa

W aiver Program (VW P). The VW P permits aliens from certain countries to visit

the United States for up to ninety days w ithout a visa if they waive any right to

contest removal other than through asylum proceedings. See 8 U.S.C. § 1187.

M s. M cCloskey married a United States citizen and stayed beyond the ninety-day

period. After divorcing in 2004, she filed a Form I-360 with the Bureau of

Citizenship and Immigration Services (CIS), seeking an immigrant visa as a

battered spouse under the Violence Against W omen and Department of Justice

Reauthorization Act of 2005, Pub. L. No. 109-162, 119 Stat. 2960 (2006).

      In M arch 2005, ICE detained M s. M cCloskey and issued her a removal

order for remaining in the country longer than authorized by the VW P. A month

later, CIS approved her I-360 application and notified her that she could apply for

either a permanent-resident status adjustment or, if she were outside the United

States, a visa. M s. M cCloskey applied for status adjustment, and her attorney,

Laura Lichter, wrote ICE on M ay 9, 2005, requesting that ICE “exercise [its]

discretion to withdraw the [removal] order and allow M s. [M cCloskey] to

complete the adjustment process.” Letter from Lichter to ICE Field-Office

Director Douglas M aurer at 1 (M ay 9, 2005), attached as Ex. C to Respondent’s

                                         -2-
Opp’n to M ot. for Stay (emphasis omitted). Several weeks later, Director M aurer

denied Lichter’s request, stating that he would not provide discretionary relief

because M s. M cCloskey had waived her right to contest removal except through

asylum proceedings, which she had not initiated.

      In the meantime, ICE placed M s. M cCloskey on supervised release. W hen

ICE finally directed her on December 13, 2006, to appear for removal from the

United States, Lichter wrote M aurer on December 15, complaining of ICE’s “plan

to execute the removal order against [M s. M cCloskey] on . . . December 20.”

A.R. at 5. Lichter asserted her belief that M s. M cCloskey would “not [be] the

subject of travel arrangements, unless and until the [status-adjustment

application] w as denied” by CIS. Id. at 4. She also asserted that

M s. M cCloskey’s “overstay and subsequent falling out of status were not of her

own making” because her ex-husband had refused to pursue adjustment. Id. at 6.

Accordingly, Lichter explained that she was “renew[ing] [her] request” from

M ay 9, 2005, id. at 4, so that CIS “might have the opportunity to adjudicate [the]

application for adjustment of status on the merits,” id. a 7. M aurer denied the

request by letter on December 18, recognizing that Lichter “had previously

requested this same action in” M ay 2005. Id. at 2. He concluded that “no further

compelling circumstances exist to justify continued deferral of

[M s. M cCloskey’s] removal.” Id. at 3.




                                          -3-
      M s. M cCloskey filed the instant petition for review on December 19,

challenging M aurer’s December 18 decision. She was removed from the United

States after this court denied her motion for a stay.

                                     D ISCUSSION

      The Government argues that we lack jurisdiction to review

M s. M cCloskey’s petition because the essence of her challenge is ICE’s refusal to

continue deferring her removal. W e agree. In what has become known as

“‘deferred action,’” “the Executive [Branch] has discretion to abandon [an]

endeavor” like executing a removal order. Reno v. American-Arab

Anti-D iscrim ination C om m ., 525 U.S. 471, 483-84 (1999); see also Yerkovich v.

Ashcroft, 381 F.3d 990, 991 n.3 (10th Cir. 2004) (describing deferred action as

“an informal administrative stay of deportation” (quotation omitted)). “This

commendable exercise in administrative discretion, developed w ithout express

statutory authorization” and designed “[t]o ameliorate a harsh and unjust

outcome,” is not judicially reviewable. American-Arab Anti-Discrimination

C om m ., 525 U.S. at 484 (quotation omitted). Specifically, 8 U.S.C. § 1252(g)

operates in the deferred-action context to remove a court’s “jurisdiction to hear

any cause or claim by or on behalf of any alien arising from the decision or action

by the Attorney General to . . . execute removal orders.” See American-Arab

Anti-D iscrim ination C om m ., 525 U.S. at 482-87.




                                          -4-
      The characterization of D irector M aurer’s December 18 decision as a

non-reviewable denial of a deferred-action request is borne out by five

observations. First, Lichter’s D ecember 15 letter was prompted by ICE’s plan to

promptly execute the removal order. Second, Lichter stated in the December 15

letter that she w as renew ing her M ay 2005 request, which sought a discretionary

reprieve from removal. Third, Director M aurer apparently construed the

December 15 letter as a deferred-action request when he noted that Lichter had

previously requested “this same action” in M ay 2005 and when he refused to

“continue[ ] deferr[ing]” M s. M cCloskey’s removal. A.R. at 2, 3. Fourth,

M s. M cCloskey’s opening brief describes the D ecember 15 letter as “a request

that ICE exercise its discretionary authority to accord her an opportunity to obtain

an adjudication on her application for adjustment of status.” Opening Br. at 53.

And fifth, Lichter did not claim in the December 15 letter that the removal order

was erroneously issued; rather, she asserted that M s. M cCloskey’s predicament

was not her fault. Section 1252(g)’s jurisdictional limitation reaches claims that

“the Attorney General is unfairly executing a removal order.” See Fornalik v.

Perryman, 223 F.3d 523, 532 (7th Cir. 2000). Consequently, we conclude that the

December 18 letter denying M s. M cCloskey relief from execution of the removal

order is not a reviewable decision. 1

1
      The fact that the December 15 letter was styled as a “Request to Reopen”
A.R. at 4, does not change our assessment that the relief actually sought and
                                                                      (continued...)

                                         -5-
      B ecause w e lack jurisdiction, the petition for review is DISM ISSED.



                                                   Entered for the Court


                                                   Bobby R. Baldock
                                                   Circuit Judge




1
 (...continued)
ultimately denied was a deferral of removal. W e follow a substantive view of
jurisdiction, in which we look beyond mere labels or form. See Albright v.
U NU M Life Ins. C o. of Am ., 59 F.3d 1089, 1092 (10th Cir. 1995); accord
Jarbough v. Attorney Gen. of U.S., 483 F.3d 184, 189 (3d Cir. 2007).
Consequently, our decision today is not governed by Aguilera v. Kirkpatrick,
241 F.3d 1286, 1291 (10th Cir. 2001) (holding that 8 U.S.C. § 1252(g) does not
apply when the decision under review is a refusal to reopen a removal order
issued by an Immigration Judge or the Board of Immigration Appeals).

                                        -6-
