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Keywords

tortjurisdictiontestimonyregulationasylumdeportation
jurisdictionstatutemotionregulation

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Maiwand v. Gonzales

Facts

According to Maiwand's testimony before Immigration Judge (IJ) Alan A. Vomacka, Maiwand is a member of the Mohummed Ziy monarchy, which ruled Afghanistan for about two hundred years prior to the 1980s. In 1988, after the Ziy family was overthrown by the Soviet Union, Maiwand escaped with his wife Fazila to the United States. He was accorded refugee status in 1990. In 1992, the INS granted his application for adjustment of status and, retroactive to 1991, made Maiwand a legal permanent resident (LPR). Maiwand and Fazila have three children born in the United States. In 1993, Maiwand was charged by the State of New York with, and pled guilty to, second degree criminal sale of a controlled substance, which subjected him to deportation. The INS issued an order to show cause in 1994, and Maiwand appeared before an IJ, conceding removability and attempting to secure refugee status through his first asylum application.

In 1993, Maiwand, in exchange for $ 5,000, introduced an Afghani friend, who said he wanted to purchase heroin, to another friend who Maiwand knew was selling heroin. Maiwand was charged by the State of New York with, and pled guilty to, second degree criminal sale of a controlled substance.

Issue

Whether the BIA was precluded from ordering Maiwand's removal without first cancelling his refugee status.

Maiwand contests the BIA's denial of section 212(c) relief, but his arguments raise no constitutional claim or question of law.

Rule

The BIA's interpretation of laws and regulations holding that prior cancellation of refugee status was not required was reasonable.

Although this is a question of law that we have jurisdiction to review, we conclude that the BIA's interpretation of the relevant statutes and regulations are reasonable.

Analysis

The court found that Maiwand's arguments regarding the BIA's denial of section 212(c) relief raised no constitutional claim or question of law, thus lacking jurisdiction to review the BIA's decision. The court also dismissed Maiwand's factual challenges to the denial of CAT relief, affirming the IJ's findings regarding the lack of evidence for a likelihood of torture upon removal.

We also dismiss the petition insofar as it asks us to review the correctness of the IJ's fact-finding regarding Maiwand's CAT claim.

Conclusion

The court dismissed the petition as to the claims for relief under the CAT and former 1182(c) and denied the alien's petition in all other respects.

To that extent, we deny the petition.

Who won?

The government prevailed in the case as the court upheld the BIA's decision to deny Maiwand's applications for relief.

The BIA denied this motion, reasoning that once Maiwand adjusted his status from that of refugee to that of an LPR, his previous refugee status provided no basis for terminating removal proceedings.

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