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Pechenkov v. Holder

December 3, 2012

MIKHAIL G. PECHENKOV, PETITIONER,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL, RESPONDENT.



On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A072-142-992

The opinion of the court was delivered by: Graber, Circuit Judge

FOR PUBLICATION

OPINION

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

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

Opinion by Judge Graber; Concurrence by Judge Graber

SUMMARY*fn1

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), also due to his conviction, and denied Pechenkov's constitutional challenge to the provisions precluding adjustment of status after his asylee status was revoked.

Judge Graber, concurring, agreed that in this case the court lacks jurisdiction to review the BIA's "particularly serious crime" determination, but wrote separately to urge the court to consider revisiting, in an appropriate case, what she believes is an erroneous reading of § 1252(a)(2)(C). Judge Graber wrote that this court alone has created an "on-the-merits" exception, allowing review of a merits-based denial of relief, as opposed to a denial based on ineligibility due to a criminal conviction. She would rather simply inquire as to whether an alien is charged with removability because of a relevant crime and whether the IJ correctly sustained the charge, and find that if so, the court lacks jurisdiction over questions not covered by § 1252(a)(2)(D).

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 convicted of felony assault with a deadly weapon or force likely to produce great bodily injury, in violation of California Penal Code section 245(a)(1) (1993); his penalty included a ...


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