Ferron v. Atty Gen USA , 205 F. App'x 43 ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
10-31-2006
Ferron v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-4712
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"Ferron v. Atty Gen USA" (2006). 2006 Decisions. Paper 272.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
No. 05-4712
________________
NICHOLAS FERRON,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order
of the Board of Immigration Appeals
Agency No. A21 032 995
on September 27, 2005
Immigration Judge Walter A. Durling
____________________________________
Submitted Under Third Circuit LAR 34.1(a)
October 26, 2006
Before: FISHER, ALDISERT and WEIS, CIRCUIT JUDGES.
(Filed October 31, 2006)
_______________________
OPINION
_______________________
PER CURIAM
Nicholas Ferron petitions from an order of the Board of Immigration Appeals
(BIA) affirming without opinion an order of removal entered by an Immigration Judge
(IJ). In particular, he challenges the IJ’s decision to deny him relief under former
§ 212(c) of the Immigration and Nationality Act 1 (INA).
Ferron is a native and citizen of Jamaica. He entered the United States in 1976,
married, and adjusted his status to permanent resident in 1978. He was granted a § 212(c)
waiver in 1994, but had a second drug conviction and was placed in removal proceedings,
charged with having committed an aggravated felony. Ferron applied for a second
§ 212(c) waiver. Ferron did not contest the fact that he was convicted in both 1989 and
1995 of drug offenses, but contested his guilt, stating that the drugs were planted by rogue
police officers. The IJ noted that there was apparently some investigation regarding the
convictions, but recognized that he lacked the authority to look behind the facts of the
convictions. The IJ considered the equities, primarily Ferron’s caring relationship with
his children, but found that the equities were not so “unusual” or “outstanding” as to
overcome his two serious convictions. The IJ then denied § 212(c) relief as an exercise of
discretion. The BIA affirmed without opinion.
1
Section 212(c), formerly codified at 8 U.S.C. § 1182(c), was repealed by the
Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA).
2
Our jurisdiction is limited by 8 U.S.C. § 1252(a)(2)(C) because of Ferron’s
controlled substance violations, but, under the REAL ID Act of 2005, we may review
questions of law and constitutional issues, 8 U.S.C. § 1252(a)(2)(D). See Jordan v. U. S.
Attorney General, 424 F.3d 320, 327 (3d Cir. 2006). However, “[F]actual or
discretionary determinations continue to fall outside [our] jurisdiction.” Sukwanputra v.
Gonzales, 434 F.3d 627, 634 (3d Cir. 2006); 8 U.S.C. § 1252(a)(2)(B).
Shortly after Ferron filed his petition in this Court, the Government filed a motion
to dismiss, arguing that this Court lacked jurisdiction over the petition because Ferron had
not raised any constitutional violation or question of law. A panel of this Court referred
the motion to dismiss to this merits panel, finding that the motion was premature, as
Ferron could raise a reviewable constitutional issue or question of law in his brief.
Ferron has now had the opportunity to raise any reviewable questions in his
appellate brief. He has not raised any legal or constitutional issues. Although he states
that the IJ erred “as a matter of law” in denying him relief, his argument alleges that the IJ
failed to properly weigh the equities and consider the relevant facts. In essence, Ferron
argues that the IJ abused his discretion in denying him relief, and we lack jurisdiction to
3
consider the IJ’s discretionary decision.2 We will therefore grant the Government’s
motion to dismiss the petition.
2
Ferron also argues that “the failure to commit an evidentiary hearing under INA
§ 212(c) is a denial of due process;” however, it is clear from the record that an
evidentiary hearing was held. We find that Ferron has raised no cognizable claim of a
constitutional violation.
4