Greene v. Atty Gen USA , 276 F. App'x 214 ( 2008 )


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  •                                                                                                                            Opinions of the United
    2008 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    4-25-2008
    Greene v. Atty Gen USA
    Precedential or Non-Precedential: Non-Precedential
    Docket No. 07-3000
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    Recommended Citation
    "Greene v. Atty Gen USA" (2008). 2008 Decisions. Paper 1324.
    http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1324
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    NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    No. 07-3000
    DAVID LAWRENCE GREENE,
    Petitioner
    v.
    ATTORNEY GENERAL OF THE UNITED STATES,
    Respondent
    On Petition for Review of an Order of the
    Board of Immigration Appeals
    (Agency No. A21-177-195)
    Immigration Judge: Honorable Annie S. Garcy
    Submitted Pursuant to Third Circuit LAR 34.1(a)
    April 23, 2008
    Before: BARRY, SMITH and HARDIMAN, Circuit Judges
    (Opinion filed: April 25, 2008)
    ___________
    OPINION
    ___________
    PER CURIAM
    David Lawrence Greene, a native and citizen of Mexico, seeks review of an order
    of the Board of Immigration Appeals (“BIA”) sustaining the government’s appeal of an
    Immigration Judge’s (“IJ”) decision which had granted Greene’s application for
    cancellation of removal. We will deny the petition for review.
    Greene was adopted by United States citizen parents and admitted to this country
    in August 1977, when he was 2 months old. In 2003, he was convicted in New Jersey
    state court of endangering the welfare of a child. The next year, he was convicted of the
    same charge in New York state court. The Department of Homeland Security (“DHS”)
    charged Greene with being removable pursuant to Immigration and Nationality Act
    (“INA”) § 237(a)(2)(A)(ii) [
    8 U.S.C. § 1227
    (a)(2)(A)(ii)], as an alien who has been
    convicted of two moral turpitude crimes not arising out of a single scheme of criminal
    misconduct. Greene conceded the charge of removability and applied for cancellation of
    removal under INA § 240A(a) [8 U.S.C. § 1229b(a)].1
    The IJ concluded that Greene was statutorily eligible for cancellation and granted
    the application as a matter of discretion, holding that the positive aspects of his case
    outweighed the negative factors. The DHS appealed the decision to the BIA, which
    sustained the appeal, vacated the IJ’s decision, and ordered Greene removed to Mexico.
    The Board concluded that Greene had not successfully demonstrated that the factors
    1
    Under this provision, the Attorney General may, in his discretion, cancel the removal
    of an alien who (1) has been lawfully admitted for permanent residence for not less than
    five years, (2) has continuously resided in the United States in any status for seven years,
    and (3) has not been convicted of an aggravated felony. Once these requirements are met,
    the IJ must review the record as a whole, and “balance the adverse factors evidencing the
    alien’s undesirability as a permanent resident with the social and humane considerations
    presented in his (or her) behalf to determine whether the granting of . . . relief appears in
    the best interest of this country.” Matter of C-V-T, 22 I & N Dec. 7, 11 (BIA 1998).
    (internal quotations omitted).
    2
    favorable to a discretionary grant of relief outweighed his “serious criminal activity.”
    Greene filed a petition for review.
    The government argues that we lack jurisdiction to hear Greene’s claims because
    he is a criminal alien who seeks review of an order denying cancellation of removal in the
    exercise of discretion. Indeed, we generally do not have jurisdiction to review final
    orders of removal against aliens, like Greene, who are deemed removable because they
    were convicted of, inter alia, two crimes involving moral turpitude. See INA
    § 242(a)(2)(C) [
    8 U.S.C. § 1252
    (a)(2)(C)] (precluding jurisdiction where alien removable
    pursuant to INA § 237(a)(2)(A)(ii) [
    8 U.S.C. § 1227
    (a)(2)(A)(ii)]). In addition, we lack
    jurisdiction to review purely discretionary decisions, see INA § 242(a)(2)(B)(ii) [
    8 U.S.C. § 1252
    (a)(2)(B)(ii)], such as the “manner in which the BIA balanced the various positive
    and negative factors which typically inform the exercise of its discretion under” INA
    § 240A [1229b(a)]. Cruz-Camey v. Gonzales, 
    504 F.3d 28
    , 29 (1st Cir. 2007). Despite
    these jurisdiction-stripping provisions, we may review “constitutional claims or questions
    of law” raised in a petition for review. See INA § 242(a)(2)(D) [
    8 U.S.C. § 1252
    (a)(2)(D)]; Papageorgiou v. Gonzales, 
    413 F.3d 356
    , 358 (3d Cir. 2005). Thus, we
    may consider whether the Board, in exercising its discretion, violated a rule of law or a
    provision of the U.S. Constitution. See Chen v. Dep’t of Justice, 
    471 F.3d 315
    , 329 (2d
    Cir. 2006) (holding that a petition raises a question of law when it alleges a “fact-finding
    which is flawed by an error of law” or an “abuse of discretion” that is “based on a legally
    3
    erroneous standard”).
    In the present case, Greene argues that the BIA improperly engaged in its own
    independent factfinding, and failed to defer to the IJ’s factual findings and review them
    for clear error. See 
    8 C.F.R. §§ 1003.1
    (d)(3)(I) and (iv). In addition, Greene complains
    that the BIA ignored uncontested expert testimony concerning the likelihood that he
    would re-offend. To the extent that these allegations raise questions of law, we have
    jurisdiction. See Wood v. Mukasey, 
    516 F.3d 564
    , 568 (7 th Cir. 2008) (holding allegation
    that BIA exceeded its appellate-review authority presented a legal question). We
    conclude, however, that Greene’s claims are without merit.
    Under the regulations, “[t]he Board will not engage in de novo review of findings
    of fact determined by an immigration judge,” § 1003.1(d)(3)(I), and “will not engage in
    factfinding in the course of deciding appeals.” § 1003.1(d)(3)(iv). The BIA’s decision
    that Greene did not qualify for cancellation was based on his failure to show “sufficient
    rehabilitation.” As support for this conclusion, the BIA cited Greene’s “recent
    convict[ions] within the span of 6 months for conduct involving extensive sexual contact
    with minors,” his “admission to engaging in inappropriate and uncontrollable sexual
    activity” with numerous “inappropriate partners,” and his solicitation of a 13 year-old
    while awaiting sentencing for his first conviction. Importantly, these are not facts that the
    BIA independently found or which ran contrary to the IJ’s findings. Rather, they were all
    clearly set forth on the record in the IJ’s decision. The BIA simply deferred to the IJ’s
    4
    factual determinations, including those favorable to Greene, and, after weighing the
    evidence, concluded that Greene did not warrant cancellation of removal. See 
    8 C.F.R. § 1003.1
    (d)(3)(ii) (stating that the “Board may review questions of law, discretion, and
    judgment and all other issues in appeals from decisions of [IJs] de novo.”). This analysis
    fully comports with the BIA regulations.2 See Wallace v. Gonzales, 
    463 F.3d 135
    , 141
    (2d Cir. 2006) (“Although any reversal by the BIA of an IJ’s discretionary determination
    must involve consideration of the underlying facts, a review of the factual record by the
    BIA does not convert its discretionary determination as to whether a petitioner warrants
    [relief] into improper factfinding.”).
    For the foregoing reasons, we will deny the petition for review.
    2
    We note that Greene strenuously argues that the BIA ignored uncontested expert
    testimony concerning the likelihood that he would re-offend. Review of this claim, along
    with any direct challenge to the BIA’s discretionary decision, is outside our jurisdiction
    and will be dismissed. See Jarbough v. Attorney General, 
    483 F.3d 184
    , 189 (3d Cir.
    2007) (holding that “arguments such as that an Immigration Judge . . . failed to consider
    evidence . . . are not questions of law under § 1252(a)(2)(D).”); Xiao Ji Chen v. U.S.
    Dep’t of Justice, 
    471 F.3d 315
    , 329-30 (2d Cir. 2006) (stating that judicial review may not
    be secured “by using the rhetoric of a ‘constitutional claim’ or ‘question of law’ to
    disguise what is essentially a quarrel about fact-finding or the exercise of discretion.”).
    5