Mikhail Pechenkov v. Eric H. Holder Jr.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MIKHAIL G. PECHENKOV , No. 08-73287 Petitioner, Agency No. v. A072-142-992

ERIC H. HOLDER, JR., Attorney General, OPINION Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Argued and Submitted April 17, 2012–San Francisco, California

Filed December 3, 2012

Before: Mary M. Schroeder, Diarmuid F. O’Scannlain, and Susan P. Graber, Circuit Judges.

Opinion by Judge Graber; Concurrence by Judge Graber PECHENKOV V . HOLDER

SUMMARY*

Immigration

The panel dismissed in part and denied in part Mikhail G. Pechenkov’s petition for review of the Board of Immigration Appeals’ denial of withholding of removal and adjustment of status.

The panel held that it lacked jurisdiction pursuant to 8 U.S.C. § 1252(a)(2)(C) over Pechenkov’s challenge to the discretionary determination finding him ineligible for withholding because the crime underlying his removability was a “particularly serious crime.” The panel upheld the revocation of Pechenkov’s asylee status pursuant to 8 C.F.R. § 208.24(a)(2),…

Opinion by Judge GRABER; Concurrence by Judge GRABER.

*446 OPINION

Petitioner Mikhail G. Pechenkov seeks review of a decision of the Board of Immigration Appeals (“BIA”) adopting and affirming an immigration judge’s (“IJ”) denial of his application for withholding of removal. Petitioner argues that the BIA abused its discretion in ruling that he was ineligible for withholding of removal because he had been convicted of a “particularly serious crime” within the meaning of 8 U.S.C. § 1231 (b)(3)(B)(ii). Petitioner also raises a constitutional challenge to the legal provisions precluding adjustment of his immigration status. He argues that he is eligible for adjustment of status because his asylee status was revoked improperly, under a regulation that purportedly contradicts relevant statutory authority. We dismiss, for lack of jurisdiction, Petitioner’s challenge to the “particularly serious crime” determination, and we deny his petition with regard to the application to adjust status.

Petitioner, a native and citizen of Russia, was admitted to the United States in 1992. He filed an application for asylum, which was granted. After he obtained asylee status, Petitioner was…

concurring.

I agree that we lack jurisdiction to review the BIA’s “particularly serious crime” determination in this case. But I write separately to express my disagreement with our court’s interpretation of 8 U.S.C. § 1252 (a)(2)(C).

That statute provides: “no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed ” certain criminal offenses, including aggravated felonies. 1 (Emphasis added.) In my *450 view, once we are satisfied that a given alien has been found “removable by reason of’ conviction of a crime covered by § 1252(a)(2)(C), we lack jurisdiction to conduct further review of the “final order of removal,” whether relating to asylum, withholding of removal, or CAT relief. In such cases, we have jurisdiction only over constitutional claims or questions of law, pursuant to § 1252(a)(2)(D). At least four of our sister circuits have adopted this textually based view of § 1252(a)(2)(C)’s jurisdiction-stripping provision. See, e.g., Constanza v. Holder, 647 F.3d 749, 753-54 (8th Cir.2011) (per curiam); Saintha v. Mukasey, 516 F.3d 243, 249-51 (4th Cir.2008); Conteh v. Gonzales, 461 F.3d 45, 62-63…