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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-14696
Non-Argument Calendar
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Agency No. A034-607-062
CURT MARTIN JUNIOR ROBLEY,
Petitioner,
versus
UNITED STATES ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(November 5, 2019)
Before ED CARNES, Chief Judge, JILL PRYOR, and ANDERSON, Circuit
Judges.
PER CURIAM:
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The Department of Homeland Security sought to remove Curt Martin Junior
Robley from the United States based on his criminal record. An immigration judge
dismissed Robley’s application for cancelation of removal under 8 U.S.C.
§ 1229b(a), and the Board of Immigration Appeals dismissed his appeal.1 Robley
now petitions for review of the Board’s decision, contending that the Board should
not have admitted and relied on a state appellate court decision as evidence that he
had been convicted of an aggravated felony.
I.
Robley is a native and citizen of Trinidad and Tobago. He became a lawful
permanent resident of the United States in 1974. 2 In 2016, after Robley returned
from a trip overseas, Homeland Security charged that he was inadmissible to the
United States because he had been convicted of cocaine possession in 1997 and of
armed robbery, attempted murder, and aggravated assault in 1988. Homeland
Security began proceedings to remove him from the country.
Robley applied for cancellation of removal under § 1229b(a). Homeland
Security moved to dismiss his application, arguing that his 1988 convictions are
1
The immigration judge, Homeland Security, and the Board all used the word
“pretermit” to refer to what the immigration judge did to Robley’s petition. The parties use it in
their appellate briefs, too. Because we prefer plain English, we will use the word “dismiss”
instead.
2
An alien who is a lawful permanent resident has “the status of having been lawfully
accorded the privilege of residing permanently in the United States as an immigrant in
accordance with the immigration laws.” 8 U.S.C. § 1101(a)(20).
2
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aggravated felonies that make him ineligible for that relief. But the court
documents from Robley’s 1988 case are inconsistent — the crimes alleged in the
indictment are different from the ones to which he pleaded guilty. To clear up that
confusion, Homeland Security submitted a New Jersey appellate court decision
affirming the sentence imposed in Robley’s 1988 case. The decision states that
Robley was indicted for robbery, under N.J. Stat. § 2C:15-1; attempted murder,
under N.J. Stat. § 2C:11-3; and aggravated assault, under N.J. Stat. § 2C:12-
1(b)(1); and that he pleaded guilty to those same counts of armed robbery,
attempted murder, and aggravated assault. The immigration judge, relying in part
on that appellate decision, found that Robley had in fact been convicted of an
aggravated felony. He dismissed Robley’s application.
Robley appealed to the Board. He contended that the state appellate court
decision was not admissible under 8 C.F.R. § 1003.41 as evidence of his
convictions. He also contended that the appellate decision was not reliable
evidence and did not establish that he had been convicted of any particular crime.
But the Board agreed with the immigration judge and dismissed Robley’s appeal.
Robley now petitions this Court for review on the same grounds.
II.
When the Board issues its own decision and does not expressly adopt the
opinion or reasoning of the immigration judge, as it did here, we review only the
3
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Board’s decision. See Lopez v. U.S. Att’y Gen.,
914 F.3d 1292, 1297 (11th Cir.
2019). We review the Board’s legal conclusions de novo and its factual
determinations for substantial evidence.
Id. We review our own subject matter
jurisdiction de novo. Malu v. U.S. Att’y Gen.,
764 F.3d 1282, 1286 (11th Cir.
2014).
By statute we lack jurisdiction to review any final removal order against an
alien who is removable because he committed a controlled substance offense. See
8 U.S.C. § 1252(a)(2)(C);
Lopez, 914 F.3d at 1297. And we lack jurisdiction to
review the Board’s discretionary denial of cancellation of removal. See 8 U.S.C.
§ 1252(a)(2)(B)(i). But we may still review constitutional claims or questions of
law raised in a petition for review. See
id. § 1252(a)(2)(D). So even when an alien
concedes that he is removable based on a covered criminal conviction, we still
have jurisdiction to consider a question of law relating to his eligibility for
discretionary relief. See Donawa v. U.S. Att’y Gen.,
735 F.3d 1275, 1279–80
(11th Cir. 2013). That jurisdiction does not include the power to review “garden-
variety abuse of discretion” arguments about how the Board weighed the facts in
the record. Alvarez Acosta v. U.S. Att’y Gen.,
524 F.3d 1191, 1196–97 (11th Cir.
2008).
Here Robley’s challenge to the reliability of the state appellate court
decision is beyond our jurisdiction to review. That challenge goes to the Board’s
4
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weighing of the evidence, not to any legal or constitutional question. See
id. The
same goes for Robley’s challenge to the Board’s finding that Robley had in fact
been convicted of attempted murder, aggravated assault, and armed robbery. An
argument that the Board’s factual finding was not supported by evidence in the
record does not state an exception to the jurisdictional bar. Garcia v. Att’y Gen.,
329 F.3d 1217, 1222 (11th Cir. 2003). To the extent that Robley’s petition seeks
review of those issues, we must dismiss it.
But we can consider Robley’s contention that the Board erroneously applied
8 C.F.R. § 1003.41. Whether the Board misinterpreted a federal regulation is a
legal question for the purposes of 8 U.S.C. § 1252(a)(2)(D). See, e.g., Dormescar
v. U.S. Att’y Gen.,
690 F.3d 1258, 1268, 1270–71 (11th Cir. 2012) (exercising
jurisdiction over the question whether the Board and Homeland Security violated
applicable regulations).
That does not help Robley much because his contention lacks merit. Section
1003.41(d) allows an immigration judge to admit “evidence that reasonably
indicates the existence of a criminal conviction.” We have never interpreted
§ 1003.41(d) in a published opinion, but we have interpreted a closely related
statute, 8 U.S.C. § 1229a(c)(3). Under that statute we have held that evidence is
admissible to prove an alien’s prior criminal conviction if it is “probative.”
Fequiere v. Ashcroft,
279 F.3d 1325, 1327 (11th Cir. 2002), superseded by statute
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on other grounds as recognized by
Donawa, 735 F.3d at 1281. Other circuits have
used a similar standard when applying § 1003.41(d). See, e.g., Fraser v. Lynch,
795 F.3d 859, 863–64 (8th Cir. 2015); Barradas v. Holder,
582 F.3d 754, 762–63
(7th Cir. 2009); Francis v. Gonzales,
442 F.3d 131, 141–44 (2d Cir. 2006). And
that standard is consistent with the Department of Justice’s commentary on the
regulation: “The proposed rule anticipates that other evidence may be used to
demonstrate a criminal conviction, if in the discretion of the Immigration Judge, it
is deemed probative and relevant.” Executive Office for Immigration Review;
Criminal Conviction Records, 57 Fed. Reg. 60,740 (proposed Dec. 14, 1992)
(originally to be codified at 8 C.F.R. § 3.41) (emphasis added). So evidence is
admissible under § 1003.41(d) if it is probative of the existence of a conviction.
In this case the Board took its interpretation of § 1003.41(d) from a
precedential, three-member opinion, Matter of Velasquez, 25 I. & N. Dec. 680
(BIA 2012). In Velasquez the Board concluded that evidence is admissible under
§ 1003.41(d) to prove a conviction if it is “probative and relevant.”
Id. at 686
(quotation marks omitted). That interpretation is correct. Velasquez then notes
that “documents such as an appellate court decision affirming or otherwise
referencing a conviction would appear to fall within [§ 1003.41(d)].”
Id. We
agree. Regardless of whether an appellate decision, on its own, is sufficient to
prove a conviction, it is at least probative. Cf.
Francis, 442 F.3d at 142–44
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(explaining that evidence can be admissible under § 1003.41(d) even if it is not
sufficient to prove a conviction). For that reason the Board did not err by
admitting an appellate decision as evidence of Robley’s criminal convictions.3
PETITION DISMISSED IN PART AND DENIED IN PART.
3
Robley faults the Board for relying on a part of Velasquez that he says is dicta. But if
that was error, it was harmless, because by relying on that part of Velasquez the Board correctly
interpreted § 1003.41(d).
7
