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Dukuly v. Filip: IMMIGRATION - no jurisdiction regarding denial of status adjustment; no Constitional due process claim

1Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Acting Attorney
General Mark Filip is automatically substituted for former Attorney General Michael
B. Mukasey as Respondent in this case.
United States Court of Appeals
No. 07-3873
Baraka Jerry Dukuly, *
Petitioner, *
* Petition for Review
v. * of an Order of the
* Board of Immigration Appeals.
Mark Filip,1 *
Acting Attorney General, *
Respondent. *
Submitted: September 25, 2008
Filed: January 27, 2009
Before WOLLMAN, SMITH, and GRUENDER, Circuit Judges.
WOLLMAN, Circuit Judge.
Baraka Dukuly petitions for review of a Board of Immigration Appeals (BIA)
decision upholding the Immigration Judges (IJ) denial of an adjustment of status. We
dismiss the petition for lack of jurisdiction.
Dukuly is a male Liberian citizen who apparently entered the United States in
1996. In December 2003, Dukuly filed an application for asylum, withholding of
removal, and protection under the Convention Against Torture. In his asylum
application, Dukuly claimed that he entered the United States on April 12, 2002, after
suffering more than a decade of persecution in Liberia. Dukuly stated that his parents
had been killed by Charles Taylor rebels when he was nine years old, and he claimed
that the rebels had tortured and sexually abused him. He described being freed from
the rebels by a kind elderly woman; wandering for several years through Ivory Coast
refugee camps; and finally being placed by a friend on a ship headed for the United
States. A government background check, however, revealed that Dukuly had been
arrested in the United States as early as 1999, three years before he claimed to have
arrived. Dukuly then sought to amend his asylum application, and later he withdrew
it altogether.
On January 28, 2005, the Department of Homeland Security commenced
removal proceedings against Dukuly. Dukuly conceded removability but sought
adjustment of status (based upon his recent marriage to a naturalized American
citizen) and waiver of inadmissability for filing a fabricated asylum application.
During the removal hearings, Dukuly admitted that he had falsified information in his
original asylum application, but claimed that his dishonesty was caused by his extreme
reticence to disclose traumatic details about past abuse. He testified that after his
parents were killed, he was befriended by a man named Hamidou Solko, who initially
appeared to be kind but ultimately proved to be a pedophile who subjected Dukuly to
six years of sexual abuse. Dukuly claimed that, shortly after he turned fourteen years
old, Hamidou sent him to the United States. He stated that he entered the country by
plane on September 19, 1996, clearing customs inspection at JFK Airport with a
visitor visa procured by Hamidou. Government records appear to corroborate this
entry date.
Several witnesses testified on Dukulys behalf. Christian Flah testified that he
had known Dukuly as a child and that he had heard that Dukulys family was
apprehended by Charles Taylor forces. Dukulys wife testified that she had various
disabilities and would be seriously harmed if her husband were deported. Finally,
Charles Tracy, Dukulys social worker, spoke about the nature of the abuse Dukuly
had suffered. In Tracys opinion, Dukulys original dishonesty was attributable to
abuse trauma and was consistent with deep psychological injury.
On June 26, 2007, the IJ granted the fraud waiver but denied Dukulys request
for adjustment of status, concluding that Dukuly did not merit a favorable exercise of
discretion. The BIA upheld the decision, and Dukuly appeals.
Adjustment of status is a discretionary decision committed to the Attorney
General. See 8 U.S.C. 1255. We lack jurisdiction to review the exercise of that
discretion unless the petition for review raises a constitutional claim or question of
law. Hailemichael v. Gonzales, 454 F.3d 878, 886 (8th Cir. 2006); see also 8 U.S.C.
1252(a)(2)(B)(i). A petitioner cannot evade this jurisdictional barrier by couching
a factual argument in legal or constitutional terms; he must present a colorable legal
or constitutional claim. See Higuit v. Gonzales, 433 F.3d 417, 420 (4th Cir. 2006)
(We are not free to convert every immigration case into a question of law, and
thereby undermine Congresss decision to grant limited jurisdiction over matters
committed in the first instance to the sound discretion of the Executive.). To
establish a violation of due process rights, a petitioner must show fundamental
unfairness or procedural irregularities that prejudiced his case. Salkeld v. Gonzales,
420 F.3d 804, 810 (8th Cir. 2005). Dukuly has not overcome this jurisdictional
1The IJ also expressed skepticism of Dukulys motivation for originally
asserting a 2002 entry date. Dukulys counsel insists that his only possible motivation
was fear of disclosing Hamidou and the associated sexual abuse. But this contention
ignores an obvious rebuttal: Dukulys last arrest was in December 2001, and his
original story allowed him to omit his criminal record.
Several of Dukulys arguments must be dismissed as disagreements with the
IJs factual determinations. Dukuly argues, for example, that the IJs decision was
arbitrary and unfair because it ignored important evidence that supported his claim:
in particular, Tracys expert testimony attributing Dukulys fabrications to sexual
abuse trauma, and government records that corroborated Dukulys second purported
entry date. The record, however, does not sustain Dukulys assertion that the IJ
ignored this evidence. Instead, it shows that the IJ considered the evidence but found
it unpersuasive when weighed against other factorsincluding Dukulys
demonstrated propensity to lie about his past and the readiness of his social workers,
family, and friends to believe and support a story that later proved false.2 Compare
Tun v. Gonzales, 485 F.3d 1014, 1026 (8th Cir. 2007) (holding that improper
exclusion of expert testimony violated the petitioners due process rights). We do not
have jurisdiction to second-guess this determination.
Dukuly argues that two other aspects of the IJs decision violated his due
process rights. First, he asserts that the IJ refused his adjustment of status application
to punish him for lying; second, he contends that the IJs simultaneous grant of the
fraud waiver and denial of adjustment of status was arbitrary and capricious. Neither
of these arguments presents a colorable constitutional claim. The IJs opinion
weighed humanitarian considerations against the gravity of lying to the United States
government. The IJ was also cognizant of the impact his decision would have on the
immigration system, expressing his concern about promoting dishonesty in the asylum
process. The IJs sensitivity to these issues does not make the decision unduly
punitive. Likewise, the IJs decision to grant the fraud waiverin deference to
Dukulys citizen wife and with the intent to enable Dukuly to someday returnwas
not arbitrary or capricious. To the contrary, the IJ carefully explained that his ruling
was an effort to temper justice with lenity, and we see no constitutional error in that
Dukuly filed a motion for stay of removal before his period of voluntary
departure expired. Although he did not also file a motion expressly seeking a stay of
the voluntary departure period, we will deem our grant of the stay of removal as
including a stay of the voluntary departure period. See Rife v. Ashcroft, 374 F.3d
606, 616 (8th Cir. 2004).
The petition for review is dismissed.


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Bystanders Witnessed This.
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        a Police Report

Police Responded but Did
        Not File a Police Report



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