Mortley Shepherd v. U.S. Attorney General , 559 F. App'x 837 ( 2014 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-13950
Non-Argument Calendar
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Agency No. A030-583-818
MORTLEY SHEPHERD,
a.k.a. Mortley Shepheard,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(March 14, 2014)
Before CARNES, Chief Judge, PRYOR and MARTIN, Circuit Judges.
PER CURIAM:
Mortley Shepherd, an 82-year-old national of Trinidad and Tobago, seeks
review of the Board of Immigration Appeals’ order denying his application for
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cancellation of removal under 8 U.S.C. § 1229b(a). Shepherd, who has an
American citizen wife with serious health issues and three American citizen
children, entered the United States as a lawful permanent resident in 1970. More
than three decades later, he was charged in Florida with sexually battering his ten-
year-old foster daughter. According to the probable cause affidavit underlying his
arrest, the victim told the police that Shepherd had touched her vagina on three
separate occasions, once with his hands and twice with his mouth. When
questioned by detectives, Shepherd denied having raped or molested his foster
daughter. But when asked if he had licked her vagina, he gave a series of oblique
and equivocal responses, first stating that he could not recall, then asking what
would happen if he had done so by accident, and finally asserting “not to [his]
knowledge.”
In 2004 Shepherd entered a guilty plea to an amended state information
charging him with two counts of child abuse. He later withdrew that plea and
entered a new guilty plea to the same two counts of child abuse, but with the
stipulation that his convictions did not constitute sexual abuse of a minor. In
December 2005, the Florida trial court entered an order finding Shepherd guilty of
two counts of child abuse and expressly stating that he had not been convicted of
“a crime of sexual abuse of a minor as defined under Florida Statute.”
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Shepherd was ordered removed from the United States for having been
convicted of child abuse, see 8 U.S.C. § 1227(a)(2)(E)(i), and he sought
cancellation of removal under 8 U.S.C. § 1229b(a), which grants immigration
courts discretion to award such relief where a lawful permanent resident meets
certain eligibility requirements and the balance of equities weighs in his favor. See
8 U.S.C. § 1229b(a); Matter of C-V-T-, 22 I. & N. Dec. 7, 10–11 (BIA 1998). In
exercising that discretion, immigration courts “must balance the adverse factors
evidencing the alien’s undesirability as a permanent resident,” including “the
nature and underlying circumstances of the grounds of exclusion or deportation,”
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. at 11 (quotation marks and ellipsis
omitted).
The immigration judge denied Shepherd’s application for cancellation of
removal, finding that the positive equities — Shepherd’s advanced age, longtime
residency in the United States, employment history, home ownership, family ties in
the country, and the potential hardship to his ailing wife — were outweighed by his
criminal conviction for child abuse and “the nature and underlying circumstances
of that conviction,” which the IJ determined to have involved Shepherd touching
his foster daughter’s vagina. The IJ reached that conclusion based on the probable
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cause affidavit underlying Shepherd’s arrest and Shepherd’s own testimony during
the removal proceedings that “one time [he] touch[ed] her vagina” and knew it
“was wrong.”
The BIA affirmed the denial of Shepherd’s application, concluding that the
IJ had “properly weighed and balanced the factors relevant to the exercise of
discretion in this case” and that Shepherd’s conviction for child abuse, including
the facts underlying the offense, was “a very serious negative factor” that
outweighed the positive equities. Although the BIA acknowledged that Shepherd’s
state court judgment clarified that he had not been convicted of sexually abusing a
minor under Florida law, it found that the IJ properly considered the facts reflected
in the probable cause affidavit and Shepherd’s own admission that he touched his
foster daughter’s vagina.
I.
Shepherd challenges the BIA’s denial of his application for cancellation of
removal on three grounds. First, he contends that the BIA violated his due process
rights by failing to “give proper consideration to his claims” and failing to “provide
a well-reasoned opinion” supporting its decision. Second, he maintains that the
BIA clearly erred in finding that his child abuse conviction involved an offense “of
a sexual nature,” where the state court judgment clarified that his conviction did
not constitute sexual abuse of a minor under Florida law. Shepherd suggests that
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in reaching that conclusion, the BIA improperly “went beyond the evidence” and
the state court judgment by considering the allegations set forth in the probable
cause affidavit underlying his Florida arrest. Finally, he contends that the BIA’s
finding that the positive equities in his case were outweighed by his convictions for
child abuse was clearly erroneous and unsupported by the evidence.
We begin, as we must, by considering our jurisdiction to entertain
Shepherd’s petition for review. See Keungne v. U.S. Att’y Gen., 561 F.3d 1281,
1283 (11th Cir. 2009). We generally lack jurisdiction to review the denial of
certain forms of discretionary relief, including cancellation of removal under 8
U.S.C. § 1229b(a). See 8 U.S.C. § 1252(a)(2)(B)(i). And though we retain
jurisdiction to review “constitutional claims or questions of law” raised in a
petition for review, id. § 1252(a)(2)(D), the scope of that jurisdiction extends only
to genuine questions of law and colorable constitutional claims, meaning those that
have “some possible validity.” Arias v. U.S. Att’y Gen., 482 F.3d 1281, 1284 &
n.2 (11th Cir. 2007) (quotation marks omitted). Abuse of discretion arguments
masquerading as constitutional or legal claims, as well as challenges to the
evidentiary basis for a factual finding, are not sufficient to invoke our jurisdiction.
See id. at 1284 (“A petitioner may not create the jurisdiction that Congress chose
to remove simply by cloaking an abuse of discretion argument in constitutional
garb.”) (quotation marks omitted); see also Alvarez Acosta v. U.S. Att’y Gen., 524
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F.3d 1191, 1196–97 (11th Cir. 2008) (“[A] garden-variety abuse of discretion
argument . . . does not amount to a legal question under § 1252(a)(2)(D).”); Garcia
v. U.S. Att’y Gen., 329 F.3d 1217, 1222 (11th Cir. 2003) (explaining that we lack
jurisdiction to consider an argument that a factual finding “was not supported by
evidence in the record”).
Despite his repeated invocations of due process, Shepherd has not alleged a
colorable constitutional claim because aliens do not “have a constitutionally
protected interest in discretionary forms of relief,” such as the grant of cancellation
of removal, sufficient to implicate due process guarantees. See Guzman-Munoz v.
U.S. Att’y Gen., 733 F.3d 1311, 1314 (11th Cir. 2013); see also Scheerer v. U.S.
Att’y Gen., 513 F.3d 1244, 1253 (11th Cir. 2008) (“Because [the petitioner] has no
constitutionally protected interest either in the granting of his motions or in
adjustment of status, he cannot establish a due process violation based on the
BIA’s decisions.”). Moreover, his challenges to the BIA’s findings concerning the
underlying facts of his child abuse offense and to its conclusion that the negative
equities outweighed the positive ones do not raise legal questions sufficient to
invoke our jurisdiction. See Arias, 482 F.3d at 1284 (explaining that a claim that
the BIA erred in its “weighing of certain adverse and positive factors” is nothing
more than an abuse of discretion argument challenging the BIA’s “exercise of
discretion”); Garcia, 329 F.3d at 1222 (explaining that a challenge to a factual
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finding “is not reviewable by this Court as an exception to the jurisdictional bar”).
We therefore lack jurisdiction to consider those arguments.
To the extent Shepherd contends that the BIA erred in looking beyond his
judgment of conviction to determine the facts underlying his child abuse offense,
that argument does raise a question of law over which we have jurisdiction. But it
is a meritless argument. In deciding whether an alien warrants a favorable exercise
of discretion, the BIA may consider evidence of criminal conduct or other
unbecoming behavior, regardless of whether that conduct led to or is reflected in a
criminal conviction. See Paredes-Urrestarazu v. INS, 36 F.3d 801, 810 (9th Cir.
1994) (holding that the BIA may “consider evidence of conduct that does not result
in a conviction” in deciding whether to grant discretionary relief based on the
balance of equities); Parcham v. INS, 769 F.2d 1001, 1005 (4th Cir. 1985)
(“Evidence of an alien’s conduct, without a conviction, may be considered in
denying the discretionary relief of voluntary departure.”); Matter of Thomas, 21 I.
& N. Dec. 20, 23 (BIA 1995) (“In examining the presence of adverse factors on an
application for discretionary relief, this Board has found it appropriate to consider
evidence of unfavorable conduct, including criminal conduct which has not
culminated in a final conviction . . . .”). And in deciding whether to grant
cancellation of removal, the BIA has held that immigration courts should consider,
among other things, “the nature and underlying circumstances of the grounds of
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exclusion or deportation,” the nature and seriousness of an alien’s criminal record,
and “the presence of other evidence indicative of [the alien’s] bad character or
undesirability as a permanent resident of this country.” Matter of C-V-T-, 22 I. &
N. Dec. at 11.
For these reasons, Shepherd’s petition for review is dismissed in part and
denied in part.
PETITION DISMISSED IN PART, DENIED IN PART.
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