NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

Nos. 09-2198 & 09-3444 ___________

VANNEY VAN, Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES, Respondent

____________________________________

On Petitions for Review of Orders of the Board of Immigration Appeals (Agency No. A027 356 788) Immigration Judge: Andrew R. Arthur ____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a) September 23, 2010

Before: SLOVITER, JORDAN and GREENBERG, Circuit Judges

(Opinion filed: September 24, 2010 )

OPINION ___________

PER CURIAM

Petitioner Vanney Van, a native and citizen of Cambodia, seeks review of final

orders issued by the Board of Immigration Appeals (“BIA”). For the reasons that follow, we will deny the petitions for review in part and dismiss them in part.

Because the parties are familiar with the background, we will present it here only

in summary. In 1984, as a young child, Van entered the United States with his family as a

refugee. In 1988, he became a lawful permanent resident (“LPR”) on account of his

refugee status, as of the date of his entry into the United States in 1984. On April 23,

1997, he was convicted after pleading guilty in Pennsylvania state court to robbery,

attempted rape, burglary, possessing instruments of crime, and criminal conspiracy. He

was sentenced to one to ten years of imprisonment, serving three years before being

released.1 In late 2007, the Department of Homeland Security (“DHS”) initiated removal

proceedings, charging Van with three aggravated felony-based grounds of removability

under

(a)(2)(A)(iii), for having been convicted of a crime of violence, a

theft offense, and attempt or conspiracy to commit an aggravated felony, pursuant to

sections 1101(a)(43)(F), (G), and (U), respectively.2 Van applied for waivers of

inadmissability under

(c) (INA § 209(c)) and former section 1182(c)

(former INA § 212(c)). He also applied for deferral of removal under the United Nations

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment (“CAT”). Van testified at a hearing before the Immigration Judge (“IJ”) in

support of his applications for relief. The IJ found that Van was removable for having

1 Van committed these offenses in 1993 as a teenager but was prosecuted as an adult. 2 DHS also charged Van with removability under a fourth ground, but there were no findings made on that charge, and it is not at issue here.

2 been convicted of crimes constituting aggravated felonies as defined in

(a)(43)(F), (G), and (U). The IJ also determined Van was ineligible for a waiver

under

(c), noting such waiver depends upon an application to adjust status

under section 1159(a), and that Van was no longer eligible for that adjustment because his

status already was previously adjusted, and that he was no longer a refugee. The IJ also

determined that Van was ineligible for a waiver of deportation under former INA

§ 212(c) (former

(c)) due to his criminal convictions occurring after the

effective date of the abolishment of the provision. Further, the IJ denied Van’s

application for CAT relief and ordered Van removed to Cambodia. In a decision dated

March 24, 2009, the Board of Immigration Appeals (“BIA”) affirmed the IJ’s order of

removal and dismissed Van’s appeal.

Van filed with the BIA a motion to reopen and reconsider, requesting adjustment

of status and a waiver of inadmissibility under INA § 212(h) (

(h)). The

BIA denied Van’s motion, noting that it was untimely as a motion to reconsider.3

Considered as a motion to reopen, the BIA concluded that Van presented no new and

material evidence that would affect the outcome of the proceedings, citing

(c)(1), and rejected Van’s argument regarding the section 1182(h) waiver. Van

filed timely petitions for review regarding both the BIA’s decisions, and the matters have

3 The BIA cited

(c) in support, but the provision governing the time for filing a motion to reopen appears at

(b)(2).

3 been consolidated in this Court. The respondent has filed a motion to dismiss.

As the respondent argues in its motion and in its brief, we generally lack

jurisdiction to review final orders of removal against criminal aliens, like Van, who have

an aggravated felony conviction. See

(a)(2)(C). However, we may

review “constitutional claims or questions of law” raised in a petition for review. See

(a)(2)(D); Papageorgiou v. Gonzales,

(3d Cir. 2005).

Van argues that the BIA erred in its determinations of his claims concerning section

1159(c) waiver, CAT relief, and denial of the motion to reopen for consideration of a

section 1182(h) waiver.4 We will address these issues in turn.

Van contests the agency’s determination concerning his entitlement to a section

1159(c) waiver. The IJ described the section 1159 provision for refugees to adjust status

to that of LPRs, and noted that a waiver of inadmissibility under 1159(c) can be granted

when a section 1159(a) application for LPR status is pending.5 Concerning Van, the IJ

found that Van is no longer a refugee but is already an LPR, and, under the terms of the

statute, he is no longer eligible for section 1159(a) adjustment of status and thus not

4 We deem all other issues to be waived. See Lie v. Ashcroft,

, 532 n.1 (3d Cir. 2005). 5 The waiver provision of section 1159(c) is set forth as a “coordination with section 1182” (concerning inadmissible aliens), listing which provisions of section 1182 were inapplicable for aliens seeking a section 1159 adjustment of status. It also provides that, with certain exceptions not relevant here, the Secretary of Homeland Security or the Attorney General may waive the provisions of inadmissibility for humanitarian purposes or family unity reasons.

4 eligible for a section 1159(c) waiver. Van argues that he retains his status as a refugee

despite having become an LPR pursuant to section 1159(a), and that as both an LPR and a

refugee, he continues to be afforded the benefit of section 1159(c)’s provision concerning

waivers. We note that the BIA addressed this argument and stated that, even assuming

that Van retains vestiges of his refugee status, section 1159 relief is unavailable to Van in

light of the statute’s language that adjustment of status under section 1159(a) can be

granted to an alien “who has not acquired permanent resident status.”

(a)(1)(C). It appears, then, that the agency’s interpretation of the statute is that a

waiver of inadmissibility of a refugee logically can occur only at the time when the alien

refugee is seeking admission for lawful permanent residence. Van does not present any

arguments that persuade us to conclude that the BIA erred in its statutory interpretation.

See Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc.,

(1984). See also Saintha v. Mukasey,

(4th Cir. 2008) (rejecting the

proposition that an alien refugee who has already adjusted his status to that of an LPR

may still apply for a section 1159(c) waiver as a refugee).6

6 The BIA further concluded that it lacked jurisdiction to consider Van’s request for a section 1159(c) waiver, given that DHS has original jurisdiction over section 1159 applications for relief, and if denied, the application for adjustment of status (and presumably, any waiver request) is renewable in removal proceedings. See

(e). The respondent argues that Van’s failure to address this specific conclusion is fatal to his claim. However, because the BIA’s conclusion about its jurisdiction over a section 1159(c) waiver request is intertwined with its interpretation of section 1159, we do not conclude that Van has waived consideration of the section 1159(c) waiver issue.

5 Van nevertheless argues that he should be afforded the rights and protections of a

refugee and be eligible for a section 1159(c) waiver, stating that if refugee status were

lost upon adjustment to LPR status, “he would become subject to removal pursuant to

INA § 237 [

], and deemed a ‘deportable alien.’” Pet’r Br. at 16-17.

Although Van does not directly dispute that he is removable on the basis of his

aggravated felony convictions, we note that it is settled law that an alien admitted as a

refugee and adjusted to LPR status is indeed subject to removal proceedings for having

committed an aggravated felony, even though his refugee status was never terminated.

See Romanishyn v. Attorney General,

(3d Cir. 2006). Van is, in fact, a

deportable alien, regardless of his arrival in the United States as a refugee. We are

unpersuaded by Van’s argument on this point.

Van next argues that he is eligible for CAT relief and that the BIA committed error

in denying his claim. However, he does not raise any constitutional claims or questions

of law on this issue. Van’s arguments concern whether the BIA decision is supported by

substantial evidence in the record. As noted earlier, because Van has aggravated felony

convictions, that issue is outside of our jurisdiction and will be dismissed.

We now turn to Van’s argument concerning his claim for relief under section

1182(h), which he presented in his motion to reopen or reconsider. We review the

decision to deny a motion to reopen or to reconsider under an abuse of discretion

standard. See Borges v. Gonzales,

(3d Cir. 2005). Under that

6 standard, the BIA’s decision may be reversed only if it is “arbitrary, irrational, or contrary

to law.”

(citing Guo v. Ashcroft,

(3d Cir. 2004)). Van argues this

issue as a legal matter concerning eligibility under the terms of the statute and under the

Fifth Circuit’s decision in Martinez v. Mukasey,

(5th Cir. 2008). However,

we agree with the respondent’s position that Van does not challenge the bases of the

BIA’s denial of the motion, namely, that the motion was untimely as a motion to

reconsider, and that Van provided no new and material evidence that would have affected

the outcome of the prior proceedings. See

(c)(1). Van has not shown

that the BIA’s denial of the motion on these bases was arbitrary, irrational, or contrary to

law.

We will deny the petitions for review in part and dismiss them in part. The

respondent’s motion to dismiss is granted in part and denied in part.

7