Morrison vs. Gonzales, No. 06-9598 (10th Cir. 2007)

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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. PETER D. KEISLER, Acting Attorney General, * No. 06-9598 (No. A98-584-618) (Petition for Review) 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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-

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