Blanco Marte v. Atty Gen USA ( 2011 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 10-4114
___________
FELIX ANTONIO BLANCO MARTE,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A043-848-362)
Immigration Judge: Honorable Margaret R. Reichenberg
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 14, 2011
Before: BARRY, JORDAN AND GARTH, Circuit Judges
(Opinion filed: March 15, 2011)
___________
OPINION
___________
PER CURIAM
Felix Antonio Blanco Marte, a citizen of the Dominican Republic, was admitted to
the United States in 1992, as a lawful permanent resident. In August 2009, Blanco Marte
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was sentenced in New Jersey state court for two separate stalking convictions. 1 See
N.J.S.A. §§ 2C:12-10(b), (c), (d). The Government later charged Blanco Marte with
being removable as an alien who has been convicted of two moral turpitude crimes not
arising out of a single scheme of criminal misconduct. See Immigration and Nationality
Act (“INA”) § 237(a)(2)(A)(ii) [8 U.S.C. § 1227(a)(2)(A)(ii)]. He conceded the charge
and applied for cancellation of removal pursuant to INA § 240A [8 U.S.C. §1229b].
Under that 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. INA § 240A(a). Importantly, the
alien must also establish that he warrants relief as a matter of discretion. See Matter of
C-V-T-, 22 I. & N. Dec. 7, 11 (BIA 1998) (noting that the IJ must “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.” (internal quotations omitted)).
The IJ found that Blanco Marte was statutorily ineligible for cancellation because
his convictions constituted aggravated felonies. In the alternative, the IJ found that even
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In November 2007, Blanco Marte pleaded guilty in New Jersey state court to fourth-
degree stalking. See N.J.S.A. § 2C:12-10(b). He was sentenced to probation. Blanco
Marte continued to engage in similar behavior, however, and pleaded guilty in June 2009
to stalking the same victim in violation of an existing court order prohibiting the
behavior, a third-degree offense. See N.J.S.A. §§ 2C:12-10(c) & (d). In August 2009, he
was sentenced to 18 months of imprisonment for the initial offense, and to 3 years of
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if Blanco Marte was statutorily eligible for cancellation, the “significant negative factors
militate against a favorable exercise of discretion in this case.” Those factors included
Blanco Marte’s two stalking convictions, an additional conviction and pending charge for
“Driving Under the Influence,” his lack of compassion for the stalking victim, and his
failure to seek counseling to address issues of “anger management and alcohol.” Blanco
Marte appealed, arguing that the IJ erred in denying his application for cancellation of
removal by “focus[ing] on [a] marginal issue” and by applying “an incorrect legal
standard.” He also contended that the IJ abused her discretion by not granting a
continuance so he could pursue post-conviction relief. The Board of Immigration
Appeals (“BIA”) dismissed the appeal, agreeing that Blanco Marte was not eligible for
cancellation of removal and that, in any event, the IJ correctly denied cancellation as a
matter of discretion. In particular, the BIA noted that the IJ had properly balanced
Blanco Marte’s “length of residence, employment history, family ties, and potential
hardship in the Dominican Republic . . . against his lack of clear-cut rehabilitation and the
repeated criminal actions.” The Board noted that Blanco Marte had not asked the IJ for a
continuance, and rejected his request for a stay of his appeal while he pursued collateral
relief in the New Jersey courts. Blanco Marte filed a timely petition for review.
The Government argues that we lack jurisdiction to hear Blanco Marte’s claims
because he is a criminal alien who seeks review of an order denying cancellation of
removal in the exercise of discretion. We generally do not have jurisdiction to review
imprisonment for the subsequent offense, to be served concurrently.
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final orders of removal against aliens, like Blanco Marte, who are deemed removable
because they were convicted of two crimes involving moral turpitude. See INA
§ 242(a)(2)(C) [8 U.S.C. § 1252(a)(2)(C)] (precluding jurisdiction where alien is
removable pursuant to § 237(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. Cruz-Camey v.
Gonzales, 504 F.3d 28, 29 (1st Cir. 2007). Despite these jurisdiction-stripping
provisions, we may review “constitutional claims and questions of law presented in
petitions for review of final removal orders.” Papageorgiou v. Gonzales, 413 F.3d 356,
358 (3d Cir. 2005) (citing INA § 242(a)(2)(D) [8 U.S.C. § 1252(a)(2)(D)]).
In his petition for review, Blanco Marte suggests that he qualifies for cancellation
of removal because he was not convicted of an aggravated felony. Whether Blanco
Marte’s stalking convictions qualify as an aggravated felony is a legal question which we
have jurisdiction to review. See Jeune v. Att’y Gen., 476 F.3d 199, 201 (3d Cir. 2007).
Even if such a challenge was successful, however, we lack jurisdiction to review the
alternative determination that Blanco Marte did not deserve cancellation of removal as an
exercise of discretion. See Mendez-Moranchel v. Ashcroft, 338 F.3d 176, 178 (3d Cir.
2003). Furthermore, although we may consider whether the Board, in exercising its
discretion, violated a rule of law or a provision of the Constitution, Blanco Marte has not
raised any such allegations. See Chen v. Dep’t of Justice, 471 F.3d 315, 329 (2d Cir.
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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
erroneous standard”).
Blanco Marte also claims that he “received an unfair hearing and was deprived of
his due process right[]s pursuant to the Fifth Amendment of the [C]onstitution because of
the [IJ’s] decision to deny the motion for a continuance.” The Board properly concluded,
however, that Blanco Marte never requested a continuance in Immigration Court. The
BIA also denied Blanco Marte’s request to stay his appeal “while a New Jersey court
considers vacating his convictions,”finding that he failed to demonstrate good cause. To
the extent that we have jurisdiction to review this determination, see Ogunfuye v. Holder,
610 F.3d 303, 307 (5th Cir. 2010) (holding that criminal alien’s argument that “the IJ
abused its discretion by not granting her a continuance does not present a constitutional
claim or issue of law that this court has jurisdiction to consider.”), we conclude that the
Board did not abuse its discretion. See Paredes v. Att’y Gen., 528 F.3d 196, 198-99 (3d
Cir. 2008) (holding that the pendency of post-conviction motion does not negate the
finality of convictions for immigration removal purposes).
For the foregoing reasons, we will grant the Government’s motion to dismiss in
part and deny the petition for review in part. Blanco Marte’s motion for appointment of
counsel is denied.
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