NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 10

- 2515

___________ MARIO ALEXANDER RENDON VELEZ , Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES

____________________________________ On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A 074

- 770

- 194 ) Immigration Judge: Honorable Margaret R. Reichenberg

____________________________________ Submitted Pursuant to Third Circuit LAR 34.1(a)

July 13, 201 1 Before: SLOVITER, CHAGARES and WEIS , Circuit Judges

( Opinion file d : July 18, 2011)

___________ OPINION

___________ PER CURIAM

.

Mario Alexander Rendon Velez , a native and citizen of Colombia , petitions for review of the order of the Board of Immigration Appeals (“BIA”) affirming the Immigration Judge’s order pretermitting Vele z ’s application for an adjustment of status under 8 U.S.C. § 1255, and denying his application for asylum and other relief.2 Velez originally entered the United States in 1994 without insp ection, admission, or parole. He filed an asylum application in April 1994, and married Latricia Sherell Delaine, a United States citizen, in December 1994. Delaine filed a Form I

- 130 petition on Velez’s behalf, which was approved in 1995. Velez paid an agency to help him complete his Immigrant Visa application; he then travelled to the United States Embassy in Bogota, Colombia , in January 1996, to complete the visa process. On his return to the United States in May 1996, Velez applied for admission as an intending immigrant with an immigrant visa. The Immigration and Naturalization Service (“INS”), however, determined that he was excludable, charging him with inadmissibilit y under 8 U.S.C. §§ 1182(a)(6)(C )(i) [INA § 212 (a)(6)(C)(i )] (fraud or willful m isrepresentation of

a material fact), 1182(a)(7)(A)(i)(I ) [INA § 212(a)(7)(A)(i)(I)] (no valid immigrant visa or entry document), and 1182(a)(2)(A)(i)(II) [ INA § 212 (a)(2)(A)(i)(II) ] (conviction on a violation of state law relating to a controlled substanc e). The INS alleged that Velez did not disclose his prior arrests for shoplifting and for drug trafficking in 1994 and 1995 in Question No. 34 of his sworn immigration visa application. 1 The exclusion hearing was held in New York over the course of three days in O ctober 1996, and March and July 1997. When Velez failed to appear at the hearing in July 1997 (he appeared one hour

1 Velez was arrested for shoplifting in Wayne Township, New Jersey, on September 22, 1994, and in Morristown, New Jersey, on November 22, 1995. Pet’r ’s App. Vol. 2 at A

- 323. He was convicted of both shoplifting charges in 1997, and ordered to pay fines. Id. at A

- 350

- 51. On July 8, 1995, he was arrested in Maryland for “distribution of cocaine,” which the State of Maryland dismissed by nolle prosequi a month later. Id. at A

- 322 & A

- 353.3

after the hearing had ended), the Immigration Judge (“IJ”) ordered him excluded in absentia. Velez continued to live in the Un ited States. He divorced his first wife in 2005, and, later that year, he married a naturalized citizen, Jackeline Ospina, with whom he has four children. In 2008, the IJ granted Velez’s motion to reopen the exclusion proceedings. During the pendency o f reopening proceedings, Velez’s second wife filed an I

- 130 petition, which was approved in 2009. Velez then filed with the United States Citizenship and Immigration Services (“USCIS”) a Form I

- 485 application for adjustment of status and a Form I

- 601 app lication for waiver of grounds for inadmissibility under INA § 212(h) and (i). The USCIS denied both applications on April 29, 2009. For relief from exclusion, Velez applied in Immigration Court for an adjustment of status and for asylum, withholding of removal, and for protection under the Convention against Torture (“CAT”) , claiming that he feared returning to Colombia because he feared the “guerillas who cause violence.” The Government proceeded on its charges that Velez fraudulently or willfully misr epresented a material fact

—his prior
arrests

— to gain entry to the United States, and that he arrived in the United States without a valid passport or any form of identification. It did not proceed, however, on excludability under § 1182(a)(2)(A)(i)(II) (e xcludable based on his Maryland controlled substance charge) , a charge that the Government had withdrawn in March 1997

. ( See A.R. at 892.)4 After a hearing at which Velez testified, 2 the IJ rendered a written decision on January 5, 2010, pretermitting Ve lez’s application for an adjustment of status for lack of jurisdiction, and denying asylum and other relief. The IJ found Velez to be inadmissible pursuant to § 1182(a)( 6)(C) (i) , based on his misrepresentation about prior arrests on his visa immigration f orm. In doing so, the IJ rejected Velez’s argument that his failure to disclose his prior arrests on Question No. 34 of the immigrant visa application was neither willful n or material. See Pet’r’s App. Vol. I at A

- 46. Specifically, t he IJ found that Vel ez spoke Spanish fluently, the application was written in both Spanish and English, and that Velez knew that he had been arrested before he completed the application in 1995 and when he swore to the truth of the application in 1996. 3 Id. The IJ also foun d that the misrepresentation was material because Velez’s failure to disclose his arrests “shut off a line of inquiry” that was relevant to his eligibility for admission and would have provid ed a ground for his exclusion. Id. at A

- 46

- 47. The IJ conclude d that Velez was also inadmissible under § 1182(a)(7)(A)(i)(I ), finding that the 1996 immigrant visa was not valid because Velez divorced his first wife in 2005, and thus, he no longer qualified as “an immediate relative” for immigration pu rposes. Id. at A

- 47

. As for Velez’s application for adjustment of status, the IJ pretermitted the

2 We need not recite the facts regarding his asylum claim as Velez concedes that “[t]he IJ fact

- finding is correct and appears impartial.” Pet’r Br. at 9; see IJ fact

- findings, Pet’r’s App. Vol. 1 at A

- 48

- 49.

3 Vel ez completed his immigrant visa application on January 26, 1995, well after his 1994 arrest for shoplifting in Wayne Township, New Jersey. Pet’r’s App. Vol. 2 at A

- 211. By the time he swore to the truth of the application on February 5, 1996, he knew5

application for lack of jurisdiction because Velez had not returned to the United States in 1996, after being granted advance parole. Id. at A

- 52.

The IJ denied Velez’ s claims for asylum and related relief, finding that his membership in his grandfather’s trucking business did not constitute a cognizable social
group . Pet’r’s App. Vol. 1 at A

- 52. Moreover, even assuming the existence of a cognizable social group, the IJ found that Velez failed to provide evidence linking his alleged problems in Colombia to membership in this “trucking business” group. Id. The IJ also found that Velez failed to demonstrate that he was shot in the leg because of his involvement in the trucking business or because of his step father’s politics. Id. at A

- 52

- 53. The IJ denied CAT relief because Velez did not show a likelihood that he would be tortured upon his return to Colombia, noting that he was able to stay in Colombia for almost six months with no harm, and that his grandfather, the owner of the trucking business, was never targeted for violence and had not been a victim of violence because he owned a trucking business . Moreover , the IJ noted, Velez failed to demonstrate a link betwe en his fear of future torture and the Colombian government’s action or failure to
act. The BIA agreed with the IJ’s reasoning and conclusions and dismissed the appeal. The Board also rejected Velez’s asylum claim , made for the first time on appeal, based

on membership in a social group of “Colombian business men.” This timely petition for review followed.

tha t he had been arrested for shoplifting twice and for the Maryland drug charge.6 We have jurisdiction over the BIA’s final order of removal pursuant to 8 U.S.C. § 1252. We review the decision and reasoning of the IJ to the exten t the BIA deferred to or adopted it; otherwise , we consider only the decision of the BIA. See Chavarria v. Gonzalez , 446 F.3d 508, 515 (3d Cir. 2006). Legal or constitutional questions are subject to de novo review. Ezeagwuna v. Ashcroft , 325 F.3d 396, 405 (3d Cir. 2003). We must uphold the agency’s factual findings, including its findings as to whether Velez demonstrated past persecution or a well

- founded fear of future persecution, if they are “supported by reasonable, substantial and probative eviden ce on the record considered as a whole.” Kayembe v. Ashcroft , 334 F.3d 231, 234 (3d Cir. 2003). We will reverse a finding of fact only if “any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 125 2(b)(4)(B).

Velez’s fi rst claim challenges the determination by the IJ and the BIA that no jurisdiction existed to review hi s adjustment of status petition, originally filed before the USCIS and denied by the USCIS in 2009, during the pendency of his exclusion proceedings in im migration court . Velez’s argument rests on the premise that the law in 1996, prior to the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104

- 208, 110 Stat. 3009

- 546 (1996) (“ II RIRA ”) , applies in his case

. He asserts that under pre

- II RIRA law, the IJ had jurisdiction to consider adjustment of status in exclusion proceedings. The Government counters that both pre

- II RIRA and post

- II RIRA law barred the IJ’s adjudication of Velez’s previously denied applicati on for adjustment of status because he failed to satisfy the exception to7

the jurisdictional bar

. We agree. Under pre

- II RIRA law, the IJ lacks jurisdiction to consider adjustment of status in exclusion proceedings, except in cases where the alien, having first been inspected and admitted into the U.S. applied to adjust status and then departed the country under a grant of advance parole pursuant to 8 U.S.C. § 1182(d)(5) (1994). In re Castro

- Padron , 21 I. & N. Dec. 379, 380 (BIA 1996); Succar v. Ashcroft , 394 F.3d 8, 17 & n.12 (1st Cir. 2005); see also 8 C.F.R. §§ 245.2(a) and 236.4 (1995)

. The applicable law u nder II RIRA is essentially the same. 4 Zheng v. Gonzales , 422 F.3d 98, 119 & n.16 (3d Cir. 2005) (preserving the narrow exception in In re Castro

- P adron )

. Here, there is no evidence that Velez applied for an adjustment of status in 1996, based on his first wife’s approved I

- 130 petition. As important, t here is no evidence that Velez returned to Colombia in January 1996 under a grant of advance paro le. 5 See 8 C.F.R. §

4 “In the case of an arriving alien who is placed in removal proceedings, the [ IJ ] does not have jurisdiction to adjudicate any application for adjustment of status filed by th e arriving alien unless : (A) T he alien properly filed the application f or adjustment of status with USCIS while the arriving alien was in the United States; (B) T he alien departed from and returned to the United States pursuant to the terms of a grant of advance parole to pursue the previously filed application f or adjustment of status; (C) T he application for adjust ment of status was denied by USCIS; and (D) DHS placed the arriving alien in removal proceedings either upon the arriving alien’s return to the United States pursuant to the grant of advance parole or after USCIS denied the application.” (emphasis added) 8 C.F.R. § 1245.2(a)(1)(ii).

5 We note that although the attorney who filed Velez’s motion to reopen in April 2008 affirmed that he attach ed a copy of a grant of advance parole as “Exhibit H,” there is no such document or “Exhibit H” attached to his affirmation. ( see Affirmation of Jorge Guttlein, Esq.[in support of motion to reopen], A.R. 825 ; Pet’r’s App. at A

- 675 .) Counsel stated furthe r in his affirmation that Velez “supports his motion to reopen with declarations and other evidentiary materials. . . . See Exhibits A though G,” ( see A.R. 828) with no mention of an “Exhibit H.” (A.R. at 828; Pet’r’s App. at A

- 678.) Velez does not argue in his brief that there is documentation of a grant of advance parole, and8

1245.2(a)(1)(ii)(B) (listing a grant of advance parole as one of the conditions pursuant to which an IJ would have jurisdiction to adjudicate an arriving alien’s application for adjustment of status during exclusion proceedings). More over, t here is no record evidence that Velez depart ed the country at all after he filed for adjustment of status in 2008, and there is no evidence that he was granted advance parole in 2008

. Based on the foregoing, we conclude that the BIA did not err in affirming the IJ’s denial of adjustment of status for lack of jurisdiction.

Turning to the question of excludability, Velez raises four claims regarding the USCIS’s denial of his application for a Form I

- 601 waiver of excludability

. See Pet’r Br. at 29

- 48. He asserts that the USCIS wrongly denied his application for a waiver pursuant to 8 U.S.C. § 1182(h) [ INA § 212(h) ] , because his criminal offenses do not qualify as crimes under pre

- II RIRA law. Pet’r Br. Claims Nos. 2 & 3. Next , he claims that the U SCIS wrongly denied him a waiver of the “misrepresentation” charge under 8 U.S.C. § 1182(i)(1) [ INA § 212(i)(1) ], even though there was no h ardship requirement under pre

- II RIRA law and the equities weighed in his favor. Pet’r Br., Claim No. 4.
Velez also claims that he is eligible for a waiver pursuant to the former 8 U.S.C. § 1182(c ) [ INA § 212(c) ] and current § 1182(h) [ INA § 212(h) ] , assuming that he is deemed to have committed criminal activity not subject to the exceptions under § 1182(a)(2)(A)(ii) [ INA § 212(a)(2)(A)(ii) ] . Pet’r Br., Claim No. 5.

we find none, in the administrative record.9 Velez raised the same waiver claims in his appeal before the BIA, but t h e BIA did not address or decide them

. 6 Typically, remand could be warranted in a case like this, when the BIA failed to analyze or render a decision on any of the waiver claims.
See Kayembe v. Ashcroft , 334 F.3d 231, 238 (3d Cir. 2003) (“When deficiencies in the BIA’s decision make it impossible for us to meaningfully review its decision, we must vacate that decision and remand so t hat the BIA can further explain its reasoning”)

. Remand, however, “is not required when it would be an idle and useless formality.” Yuan v. Att’y Gen. , --- F.3d

--- , 2011 WL 1519200 , at *5 (3d Cir. Apr. 22, 2011) (internal quotation marks and citation om itted).

We conclude that it would be “an idle and useless formality” to remand Velez’s waiver claims to the BIA. A s the Government correctly points out, neither this Court nor the Board (or the IJ) has jurisdi ction to review USCIS decisions. See 8 U.S. C. §§ 1182(h) (“[n]o court shall have jurisdiction to review a decision of the Attorney General to grant or deny a waiver under this sub section”) and 1182 (i) (“[n]o court shall have jurisdiction to review a decision or action of the Attorney General regard ing a

w aiver under paragraph [ 1182 (i)](1)”)

. As for Velez’s fifth waiver claim , he appea rs to want a new ruling from us

— and before us, the BIA

— on the issue of the § 1182 (h) [INA

6 Velez did not apply for any type of waiver before the IJ . He did, however, raise the question of a waiver under INA § 212(i) during the course of the hearing on his fraudulent misrepresentation charge held on September 2, 2009. Pet’r’s App. at A

- 213. The IJ declined to consider the “theoretical” issue of a waiver, reasoning that because no jurisdiction existed to consider Velez’s adj ustment of status, the IJ lacked jurisdiction to consider the waiver question

. Id.10

§ 212(h)] waiver. The Government, however, withdrew the charge alleging his excludability under § 1182 (a)(2)(A)(ii) to which the § 1182 (h) waiver would apply. Because the charge was withdrawn, no argument or testimony was taken concerning the charge and t he IJ did not rule on it sua sponte

. Thus, there is nothing for the BIA to

r eview. See 8 C.F.R. § 1003.1(b)(1) ( Board’s appellate jurisdiction in exclusion cases is limited to review of de cisions by an immigration judge)

. Even if the claim was properly before the BIA, any error on the Board’s part in failing to consider it i s h armless based on the BIA’s determination that Velez was excludable on other independently justifiable grounds. S ee Li Hua Yuan v. Attorney General , --- F.3d

--- , 2011 WL 1519200 , at *6 (holding that harmless error is applicable to judicial review of immig ration decisions ).

Turning to Velez’s asylum claims, upon thorough review of the record, we conclude that substantial evidence supports the BIA’s (and the IJ’s) denial of asylum
relief. 7 The record does not compel a conclusion contrary to the agency’s t hat Velez was not persecuted on the basis of a political opinion imputed or attributed to him. Although Velez suffered a frightening drive

- by shooting and was shot, the IJ’s finding that she could not conclude that the incident was an act of persecution i s supported by the lack of evidence in record. T here is insufficient circumstantial evidence from which a reasonable juror could infer a motive (or motives ) on the part of the unknown assailants that warrants asylum relief

. See Ndayshimiye v. Att ’ y Gen

. , 557 F.3d 124, 130 (3d Cir.

7 Velez has not challenged the denial of withholding of removal or of CAT relief in this Court. Hence, we will not review the BIA’s decisions as to these forms of relief.11

2009) (noting that in a mixed motive case, “asylum may not be granted if a protected ground is only an incidental, tangential, or superficial reason for persecution of an asylum applicant” (internal quotation marks omitted)). Velez’s alleged membership in a social group of Colombian s perceived to be wealthy, particularly his assertion that his family lived on a farm where they oversaw or managed farm workers, is not based on any facts in the record

. In any event, contrary to Velez’s assertions, belonging to a wealthy class is not a cognizable social group for asylum purposes

. See Ucelo

- Gomez v. Mukasey , 509 F.3d 70, 73 (2d Cir. 2007) (per curiam) (holding that status as affluent Guatemalans allegedly targeted because of their wealth was not a particular social group)

. Furthermore, Velez’s membership in his family’s trucking business lacks an immutable characteristic sufficient to constitute a protected social group. Escobar v. Gonzales , 417 F.3d 363, 367 (3d Cir. 2005) (“[M] embership in a particular social group can be attributed to either: (1) those who possess immutable characteristics such as race, gender, or a prior position, status, or condition; or (2) those who possess a characteristic that is capable of being changed but is of such fundamental importance that individuals should not be required to modify it, e.g., religion”)

.

As for the BIA’s well

- founded fear of future persecution determination, we conclude that there is nothing in the record that compels us to draw a conclusion different from the Board’s because Velez was able to travel to Colombia and stay there for almost four months without harm and his grandfather was never harmed by guerillas affiliated with the illegal drug trade . As for Velez’s claim that the IJ and the BIA erred in requiring12

corroboration of his testimony that he held a well

- founded fear of future harm , we find nothing in the record to indicate that the agency required such corroboration. Rather, t he
IJ merely comment ed on the probity of Vel ez’s proffered evidence of his family’s refugee status in Canada, noting that the bare documentation of the fact of refugee status, without more, did not “in any way corroborate the applicant’s fear of harm.” Pet’r’s App.
at A

- 53. Notably, Velez did not testify about the grounds for his family’s refugee status and he did not attest to any such particulars in his asylum affidavit.

For the foregoing reasons, we will deny the petition for review.