Victor v. Attorney General of the United States , 390 F. App'x 156 ( 2010 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-3160
___________
MICHAEL AUGUSTIN VICTOR, JR.,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
____________________________________
On Petition for Review of an Order
of the Board of Immigration Appeals
Agency No. A041 485 416
Immigration Judge: Walter A. Durling
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
July 28, 2010
Before: SLOVITER, CHAGARES AND WEIS, Circuit Judges
(Opinion filed: July 29, 2010 )
___________
OPINION
___________
PER CURIAM.
Michael A. Victor, Jr., petitions for review of an order of the Board of
Immigration Appeals (“BIA”). For the reasons that follow, we will deny the petition for
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review in part, and dismiss it in part for lack of jurisdiction.
I.
Victor was admitted to the United States as a permanent resident in
February of 1989. In 2008, he was charged with being removable under section
237(a)(2)(B)(I) of the Immigration and Nationality Act (“INA”) [8 U.S.C. §
1227(a)(2)(B)], for having been convicted of a controlled substance violation, other than
a single offense involving possession for one’s own use of 30 grams or less of marijuana.
A.R. 482-84.1 The IJ found that the controlled substance convictions had been
established, rendering him removable, A.R. 92, but Victor applied for cancellation of
removal under INA § 240A(a) [8 U.S.C. § 1229b(a)].2
1
The charging documents reference a 2004 conviction for Criminal
Possession of Marijuana and a 2002 conviction for Possession of Marijuana. A.R. 482.
Victor had earlier been charged with removability for having committed
two or more crimes involving moral turpitude, on the basis of three other convictions, but
the IJ determined that only one of the crimes involved moral turpitude, and that Victor
was not removable for those convictions. A.R. 538.
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The section provides that “The Attorney General may cancel removal in the
case of an alien who is inadmissible or deportable from the United States if the alien--
(1) has been an alien lawfully admitted for permanent residence
for not less than 5 years,
(2) has resided in the United States continuously for 7 years after
having been admitted in any status, and
(3) has not been convicted of any aggravated felony.
8 U.S.C.A. § 1229b(a). The parties do not dispute Victor’s prima facie eligibility for
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After a hearing, the IJ, “somewhat reluctantly,” granted Victor cancellation
of removal as a matter of discretion. The Department of Homeland Security (“DHS”)
appealed, arguing that the negative factors, including Victor’s extensive criminal record,
made him unworthy of a favorable exercise of discretion. The BIA sustained the DHS’s
appeal.
In its decision, the BIA stated, citing 8 C.F.R. § 1003.1(d)(3)(i)-(ii), that it
would review the ultimate discretionary decisions de novo, but would review the IJ’s
factual findings for clear error. The BIA noted Victor’s “nine convictions since 2002 for
offenses ranging in seriousness from marijuana possession, loitering, unauthorized use of
a vehicle, and disorderly conduct to reckless endangerment, assault, obstruction of justice,
resisting arrest, and acts injurious to a child arising from his violation of a protection
order.” A.R. 3. The BIA found his reckless endangerment conviction “particularly
troubling” because it involved Victor exchanging gunfire with someone, and it could have
caused death or injury to bystanders. The BIA also found that Victor’s assault, resisting
arrest, and acts injurious to a child convictions showed his propensity to use violence.
The BIA cited Matter of Jean, 23 I. & N. Dec. 373, 383-84 (A.G. 2002), for the
proposition that the Attorney General had “unequivocally expressed reluctance to extend
discretionary relief to aliens who have committed “violent or dangerous’ crimes.” The
BIA noted that although the IJ found Victor remorseful, the IJ also “concluded that his
cancellation of removal.
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recidivism was evidence of a lack of genuine rehabilitation.” A.R. 3. The BIA also
considered the “substantial favorable equities,” including the fact that Victor had been a
lawful permanent resident since 1989 when he was a young child, the fact that he had
“family ties to lawful permanent residents and United States citizens, including his 2-
year-old child and his parents and siblings,” the fact that he was engaged to be married to
the mother of his child, and the hardship that Victor and his family would experience if he
were to be removed to Haiti. The BIA stated that “discretion cannot be exercised in
[Victor’s] favor absent powerful evidence that he has no propensity to reoffend,” and
found that the “record does not contain such powerful evidence.” Id. The BIA denied
Victor’s application for cancellation of removal and ordered him removed to Haiti.
Victor filed a timely petition for review.
II.
The Government argues that we lack jurisdiction because the BIA denied
Victor’s application for cancellation of removal in the exercise of discretion. The
Government contends that Victor raises no colorable questions of law that might bypass
the jurisdictional bar. The Government states that Victor asserts only that the BIA did not
properly exercise its discretion in evaluating the evidence.
The Government is correct that “[t]his Court generally lacks jurisdiction to
review discretionary decisions made under [8 U.S.C.] § 1229b regarding cancellation of
removal.” Mendez-Reyes v. Att’y Gen., 428 F.3d 187, 189 (3d Cir. 2005). Under the
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Real ID Act, the Court retains jurisdiction to entertain constitutional claims and questions
of law. Id. Victor argues in his brief that the BIA applied an incorrect legal standard and
deprived him of a fair hearing, thereby denying him due process of law. We have
jurisdiction to consider these questions within our jurisdiction. Victor also argues that the
Government should have been estopped from charging him with removability based on
the two marijuana convictions, because they could have been presented in his prior
immigration proceedings. Although this is a legal question, we lack jurisdiction to
consider it, because Victor did not exhaust his administrative remedies by presenting the
argument to the BIA. 8 U.S.C. § 1252(d)(1).
Although we have jurisdiction over the petition for review, Victor has not
shown that the BIA erred as a matter of law. Victor seems to argue that the BIA applied
the wrong legal standard by finding that some of his crimes were violent. However, the
BIA was not holding that his crimes were violent as a matter of law; rather, it was
concluding, as a factual matter, that some of his crimes showed a propensity to use
violence.3 Victor has not demonstrated that the BIA applied any incorrect legal standard.
Victor also seems to suggest that because the IJ granted him relief, the BIA should have
3
In certain contexts, the question of whether a conviction is a “crime of violence” is a
question of law, because the Court is determining whether the conviction meets a
statutory definition of “crime of violence.” See, e.g., Henry v. Bureau of Immigration
and Customs Enforcement, 493 F.3d 303, 306 (3d Cir. 2007) (examining whether
conviction for criminal possession of a firearm was a “crime of violence” and thus an
aggravated felony, rendering the alien removable). Here, in contrast, the BIA was not
examining Victor’s crimes to determine whether they met some statutory definition.
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sustained that grant. However, 8 C.F.R. § 1003.1(d)(3)(ii), allows the BIA to review
questions of discretion de novo. The BIA did not disagree with the IJ’s factual findings
or engage in its own fact finding in violation of the regulations. Rather, the BIA’s
decision reflects that the BIA determined that a favorable exercise of discretion was not
warranted when the equities in Victor’s case were balanced against the negative factors.
To the extent Victor challenges the BIA’s balancing of the factors, we lack jurisdiction to
consider the BIA’s discretionary decision. Victor’s due process argument stemming from
the alleged legal error is also without merit.
Accordingly, we will deny the petition for review in part, and dismiss it in
part for lack of jurisdiction.
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