     07-4126-ag
     Severino v. Mukasey


 1                         UNITED STATES COURT OF APPEALS
 2
 3                            FOR THE SECOND CIRCUIT
 4
 5                               August Term, 2008
 6
 7
 8   (Argued: September 25, 2008              Decided: December 3, 2008)
 9
10                             Docket No. 07-4126-ag
11
12   - - - - - - - - - - - - - - - - - - - -x
13
14   Ramon Julian Severino,
15
16                     Petitioner,
17
18               - v.-
19
20   Michael B. Mukasey, Attorney General
21   for the United States,
22
23                     Respondent.
24
25   - - - - - - - - - - - - - - - - - - - -x
26

27         Before:            JACOBS, Chief Judge, WESLEY and HALL,
28                            Circuit Judges.
29
30         Petitioner Ramon Julian Severino petitions from a final

31   order of removal entered in the Board of Immigration Appeals

32   on August 27, 2007.        An Immigration Judge found that

33   Severino’s status had been terminated by law when he failed

34   to appear at a personal interview in connection with his

35   petition to remove conditions on his status.           Severino

36   argues that his filing of a second petition to remove

37   conditions extended his term of residency and entitles him
1    to withholding of removal.    For the following reasons, we

2    deny the petition for review in part and dismiss in part.

 3                                 JAMES A. WELCOME, Esq.,
 4                                 Waterbury, Connecticut, for
 5                                 Appellant.
 6
 7                                 MICHAEL F. SARKO, Esq., United
 8                                 States Department of Justice,
 9                                 Office of Immigration
10                                 Litigation, for Gregory G.
11                                 Katsas, Acting Assistant
12                                 Attorney General for the United
13                                 States , for Appellee.
14
15   DENNIS JACOBS, Chief Judge:
16
17       Ramon Julian Severino appeals from a final order of

18   removal by the Board of Immigration Appeals (BIA).     Severino

19   entered this country illegally in 1995; he obtained lawful

20   conditional permanent residency on the basis of his 1997

21   marriage to a citizen; he timely filed to remove the

22   conditions within two years, as required by regulation; but

23   he failed to appear with his wife at a 1999 personal

24   interview, as the regulation also required--his wife having

25   left him early in 1998.   An immigration judge (IJ) ordered

26   Severino removed in March, 2006, and the Board of

27   Immigration Appeals (BIA) affirmed.    In this petition,

28   Severino argues (1) that he was eligible for cancellation of

29   removal because he enjoyed the status of a lawful permanent


                                    2
1    resident; and (2) that the IJ denied Severino due process by

2    placing the burden of proof on Severino rather than on the

3    government.   For the reasons stated in this opinion, we

4    conclude that Severino’s status was terminated by law in

5    March, 1999, that he was therefore ineligible for

6    cancellation of removal, and that the burden of proof rested

7    on him in the proceedings before the immigration judge.    We

8    accordingly deny Severino’s petition for review, except

9    insofar as we lack jurisdiction over part of the petition,

10   in which respect we dismiss.

11

12                            BACKGROUND

13       Ramon Julian Severino, a citizen of the Dominican

14   Republic, entered the United States illegally in September,

15   1995.   He married Andrea Santa, an American citizen, on

16   August 15, 1996, a marriage he claims was bona fide.    Based

17   on this marriage, Severino was granted conditional permanent

18   resident status on March 20, 1997.    The marriage soon broke

19   down; Severino claims that Santa abruptly left their house

20   and terminated all communication with him on January 24,

21   1998.   The couple was divorced in April, 2000.

22       Severino’s conditional permanent resident status

23   required him to file a Form I-751 Petition to Remove

                                    3
1    Conditions on Residence within a ninety-day window

2    immediately prior to the two-year anniversary of his

3    obtaining status.   8 U.S.C. § 1186a(c)(1).   He and his

4    spouse were also required to attend a personal interview in

5    connection with this petition.    8 U.S.C. § 1186a(c)(1).

6    Severino filed a timely Form I-751 petition in February,

7    1999, and a personal interview was scheduled for September

8    30, 1999, but Severino and Santa failed to attend.     By law,

9    Severino’s unexplained failure to attend the interview

10   resulted in the termination of his permanent resident status

11   as of March 20, 1999, the second anniversary of his lawful

12   admission.   8 U.S.C. § 1186a(c)(2)(A).   The United States

13   Citizenship and Immigration Services (CIS) issued a decision

14   on February 22, 2000, notifying Severino that his status had

15   been terminated by reason of his failure to attend the

16   scheduled interview.

17       Severino filed a second I-751 petition on March 21,

18   2001, together with a request for a waiver of the joint

19   application requirement in light of his divorce.     The CIS

20   denied this second I-751 petition on August 15, 2003.

21       The CIS then served Severino with a Notice to Appear

22   dated March 18, 2005, charging him with removability on the

23   basis of the termination of his status, which the CIS

                                   4
1    unaccountably dated as having occurred when Severino’s

2    second I-751 petition was denied on August 15, 2003.     In the

3    ensuing proceeding before the IJ, Severino contested

4    removability based on the termination of his status and

5    requested cancellation of removal pursuant to 8 U.S.C. §

6    1229b.

7        By oral Order on March 24, 2006, the IJ denied

8    Severino’s application for cancellation of removal,

9    determining that Severino’s status was terminated in 2000

10   because of his failure to attend the personal interview in

11   connection with his original I-751 petition.   The IJ then

12   determined that Severino had failed to sustain his burden in

13   connection with his request for a waiver of the joint

14   application requirement, and concluded that the CIS had

15   properly denied his I-751 petition.1   Finally, the IJ

16   ordered Severino’s removal to the Dominican Republic.

17       The BIA adopted and affirmed the ruling by per curiam

18   Order dated August 27, 2007.   The BIA was not persuaded that

19   the IJ’s findings of fact were clearly erroneous, or that



          1
            Following the CIS’s denial of his second I-751
     petition, but prior to the IJ’s Order, Severino had filed a
     third I-751. Noting this fact, the IJ ruled that because
     one I-751 had already been adjudicated on the merits, “there
     is no reason to consider another one.”

                                    5
1    the IJ had erred in finding that Severino had failed to

2    sustain his burden of proof.     Severino filed a timely

3    petition for review with this Court.

4

5                                DISCUSSION

6           When the BIA issues an opinion, that opinion becomes

7    the basis for review.    Chen v. Gonzales, 417 F.3d 268, 271

8    (2d Cir. 2005).    When--as here--the BIA adopts a decision of

9    the IJ and supplements it, this Court reviews the IJ’s

10   decision as supplemented by the BIA.     Id.   Administrative

11   findings of fact “are conclusive unless any reasonable

12   adjudicator would be compelled to conclude to the contrary.”

13   8 U.S.C. § 1252(b)(4)(B).     Questions of law, including

14   applications of law to undisputed fact, are reviewed de

15   novo.    Delgado v. Mukasey, 508 F.3d 702, 705 (2d Cir. 2007).

16

17                                   I

18          As the IJ recognized, the threshold issue is Severino’s

19   immigration status at the time he filed his second Form I-

20   751.    Entitlement to relief and the applicable burden of

21   proof vary depending on whether--and when--his status was

22   terminated.


                                     6
1        The Immigration and Nationality Act (INA) provides that

2    an alien who obtains permanent resident status based on

3    marriage to an American citizen is considered to have

4    obtained such status on a conditional basis only.    8 U.S.C.

5    § 1186a(a)(1).   To remove the conditions, the alien and the

6    American spouse must petition the Attorney General within

7    the ninety-day period prior to the second anniversary of the

8    granting of conditional permanent residency, and must appear

9    for a personal interview in connection with their petition.

10   8 U.S.C. § 1186a(c)(1).   If the alien fails to appear with

11   spouse at the required interview, without good cause, “the

12   Attorney General shall terminate the permanent resident

13   status of the alien as of the second anniversary of the

14   alien’s lawful admission for permanent residence.”     8 U.S.C.

15   § 1186a(c)(2)(A).   Severino did not comply with the

16   requirement to appear, and consequently his status was

17   terminated on March 20, 1999.

18       To avoid this legal conclusion, Severino argues that

19   his failure to appear at the interview in September, 1999

20   constituted an “abandonment” of his petition, see 8 C.F.R.

21   § 103.2(b)(13)(ii) (failure to appear at a scheduled

22   personal interview results in application being considered

23   abandoned); that he was therefore entitled to file a second

                                     7
1    petition without prejudice, see 8 C.F.R. § 103.2(b)(15)

2    (“Withdrawal or denial due to abandonment does not preclude

3    the filing of a new application or petition with a new fee.

4    . . .    Withdrawal or denial due to abandonment shall not

5    itself affect the new proceeding; but the facts and

6    circumstances surrounding the prior application or petition

7    shall otherwise be material to the new application or

8    petition.”); and that his filing of a second I-751 petition

9    on March 21, 2001 extended his status at least until the

10   second petition was denied on August 15, 2003.

11       Severino’s argument does not withstand a review of the

12   statute.    Severino had a right to file a motion to reopen or

13   reconsider, but he did not do so, because his second I-751

14   petition did not comply with the requirements for such a

15   motion: in particular, his second I-751 petition was not

16   filed within thirty days of the decision at issue.    See 8

17   C.F.R. § 103.5(a)(1)(i) & (iii) (listing filing requirements

18   for a motion to reopen or reconsider).2   True, the filing of

19   an I-751 petition automatically extends conditional


          2
            Even if Severino’s second I-751 petition were
     construed as a motion to reopen or reconsider, it is clear
     that such a motion “does not stay the execution of any
     decision in a case or extend a previously set departure
     date” “[u]nless the Service directs otherwise.” 8 C.F.R. §
     103.5(a)(1)(iv). The CIS did not direct otherwise here.

                                    8
1    permanent resident status until the petition is adjudicated,

2    8 C.F.R. § 216.4(a)(1).    But the Attorney General

3    necessarily terminated Severino’s permanent resident status

4    after he and his spouse failed to appear at the personal

5    interview without good cause, 8 U.S.C. § 1186a(c)(2)(A), and

6    Severino has cited no law in support of his contention that

7    filing a second I-751 petition will restore resident status

8    that has already been terminated.    In a nutshell, Severino’s

9    status was terminated by law when he failed to appear with

10   his wife at the personal interview in connection with his

11   first I-751 petition, and the filing of a second I-751

12   petition did not restore his status.

13

14                                 II

15       Severino challenges the IJ’s determination that he was

16   ineligible for cancellation of removal pursuant to 8 U.S.C.

17   § 1229b.    That statute permits the Attorney General, in his

18   discretion, to cancel removal of an alien who (1) has been

19   lawfully admitted for at least five years, (2) has resided

20   in the U.S. continuously for seven years, and (3) has not

21   been convicted of any aggravated felony.    8 U.S.C. §

22   1229b(a).



                                    9
1        Severino argues that the IJ erroneously held that a

2    conditional permanent resident--unlike other permanent

3    residents--is categorically ineligible for cancellation of

4    removal.   This mis-characterizes the IJ’s ruling.   The IJ

5    concluded that because Severino’s status was terminated by

6    February 22, 2000 at the latest, Severino had not been

7    lawfully admitted for permanent resident status for the

8    requisite five years.   As discussed above, Severino’s status

9    was actually terminated by operation of law on March 20,

10   1999; but in any event it is clear that Severino lacked the

11   requisite five years of lawful permanent residency.     We

12   therefore affirm the IJ’s determination that Severino was

13   not entitled to cancellation of removal.

14

15                                III

16       Severino claims that he was denied due process during

17   the removal proceeding because the IJ erroneously assigned

18   him the burden to prove his entitlement to relief.     The IJ

19   relied on 8 U.S.C. § 1186a, which places the burden in a

20   removal proceeding on an alien whose status has been

21   terminated for failure to appear at a personal interview

22   with spouse.   Severino’s premise is that because his status


                                  10
1    as a lawful permanent resident was not terminated until an

2    adverse determination on his second I-751 petition, the

3    government bore the burden of proving that Severino was not

4    entitled to relief.   See 8 U.S.C. § 1186a(c)(3)(D).

5        Severino did not present this due process claim to the

6    BIA. “Congress has limited this court's power to review a

7    final order of removal to those removal orders for which

8    ‘the alien has exhausted all administrative remedies

9    available to the alien as of right.’”    Karaj v. Gonzales,

10   462 F.3d 113, 117 (2d Cir. 2006) (citing 8 U.S.C. §

11   1252(d)(1)).   Because the bar is jurisdictional, the Court

12   may consider only those issues that the petitioner has

13   presented in substance to the BIA.   Id.   And although an

14   alien need not exhaust issues--including constitutional

15   claims--over which the BIA lacks jurisdiction, an alien must

16   raise procedural defects that the BIA has the power to

17   correct.   United States v. Gonzales-Roque, 301 F.3d 39, 47-

18   48 (2d Cir. 2002) (“While constitutional claims lie outside

19   the BIA’s jurisdiction, it clearly can address procedural

20   defects in deportation proceedings.”).

21       Even if he had preserved the issue for review, however,

22   Severino is not entitled to relief on his due process claim.



                                  11
1    Contrary to his assertion, and as discussed above,

2    Severino’s status was terminated because of his failure to

3    appear at the personal interview scheduled in connection

4    with his first I-751 petition.    In such a case, the statute

5    clearly places the burden on the alien to establish his

6    compliance with the requirements for removal of conditions

7    on status.   8 U.S.C. § 1186a(c)(2)(B).

8

9                                 IV

10       Finally, Severino argues that the IJ       erred when he

11   permitted the government, during the March 2006 immigration

12   hearing, to amend the Notice to Appear to allege that his

13   conditional permanent resident status had been terminated on

14   February 22, 2000. Severino failed to raise this claim before

15   the BIA, and we therefore lack jurisdiction to consider it.

16   8 U.S.C. § 1252(d)(1).

17

18                            CONCLUSION

19       For the foregoing reasons, we deny Severino’s petition

20   for review, except to the degree that we lack jurisdiction

21   over his unexhausted claims, in which respect we dismiss.




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