Nelida Cabeda v. Attorney General United States ( 2023 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 22-1225
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NELIDA BEATRIZ CABEDA,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
__________
On Petition for Review of a Final Order of the
Board of Immigration Appeals
(Agency Case No. A042-791-483)
Immigration Judge: Kuyomars Q. Golparvar
__________
Submitted Under Third Circuit L.A.R. 34.1(a)
on January 25, 2023
Before: HARDIMAN, KRAUSE, and MATEY, Circuit Judges
(Filed: February 3, 2023)
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OPINION*
__________
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
KRAUSE, Circuit Judge.
Recognizing that this Court lacks jurisdiction to review the Board of Immigration
Appeals’s (BIA) discretionary decision to deny her cancellation of removal, Petitioner
Nelida Cabeda claims the BIA either mistook or misapplied the relevant legal test when
considering her petition. But the BIA did neither, so we will deny the petition for review.
I. FACTUAL AND PROCEDURAL BACKGROUND
Cabeda is a lawful permanent resident of the United States and a citizen of
Argentina. In 2014, she was convicted of involuntary deviate sexual intercourse with a
minor in violation of 18 Pa. Cons. Stat. § 3123(a)(7), and the Government initiated
removal proceedings at the conclusion of her sentence. We held in Cabeda v. Att’y Gen.,
971 F.3d 165, 167 (3d Cir. 2020) [hereinafter Cabeda I], that her crime of conviction was
not an aggravated felony, making her eligible for cancellation of removal because she
satisfied the conditions laid out in 8 U.S.C. § 1229b(a).
On remand, the Immigration Judge (IJ) acknowledged the factors relevant to
cancellation of removal, as set forth in In re C-V-T, 22 I. & N. Dec. 7 (BIA 1998), and
made an individualized determination concerning their application to Cabeda,
considering the length of her residence in the United States, her family ties, her
employment history, the value and service to the community she had provided, and
evidence of rehabilitation, on the one hand, and the circumstances surrounding her
grounds for removability and evidence of bad character, on the other. Specifically, the IJ
recognized that Cabeda “ha[d] been convicted of an exceptionally serious crime” and
“took complete advantage of someone so young in such an awful, terrible way,” App.
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339–40, but found those circumstances outweighed by Cabeda’s nearly thirty years as a
United States resident, military service, “excellent employment history,” id. at 339,
property ownership, church involvement, and rehabilitation. Thus, “upon weighing all
the positives against the very, very serious negatives here,” the IJ concluded that “it [wa]s
in fact in the best interests of the United States for her to remain.” Id. at 343.
The BIA reversed. The panel’s reasoning was far more succinct than the IJ’s and
did not discuss each factor. Rather, after acknowledging “the Immigration Judge’s
thorough review of the equities present in this case, including the respondent’s
rehabilitative efforts, the psychologist’s assessment, and the respondent’s arguments on
appeal,” id. at 4, the BIA determined that Cabeda’s “crime was of such gravity that it
outweighs all countervailing factors,” id. It therefore concluded that “a favorable
exercise of discretion would not be in the best interests of the United States.” Id.II. DISCUSSION1
Although we lack jurisdiction to review the BIA’s exercise of discretion in
denying cancellation of removal, see 8 U.S.C. § 1252(a)(2)(B), we may review
“constitutional claims or questions of law.” 8 U.S.C. § 1252(a)(2)(D). Here, Cabeda
raises two such legal arguments: (1) that the BIA denied her due process by failing to
apply or by misapplying the Board’s binding precedent in In re C-V-T and In re Sotelo-
1
The BIA had jurisdiction under 8 C.F.R. § 1003.2(a). We have (limited)
jurisdiction to review a final order of removal under 8 U.S.C. § 1252(a)(1), and we
review legal challenges to BIA rulings de novo. See Sunuwar v. Att’y Gen., 989 F.3d
239, 247 (3d Cir. 2021) (citation omitted).
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Sotelo, 23 I. & N. Dec. 201 (BIA 2001), and (2) that the Board improperly engaged in
fact-finding in order to reverse the IJ. Neither argument holds sway.
a. The BIA Correctly Applied the Proper Legal Test.
Cabeda first suggests that the BIA failed to make an individualized determination
on her petition because it ignored In re C-V-T’s multifactor test or misapplied its factors
under In re Sotelo-Sotelo. But the BIA’s opinion proves otherwise.
On the face of the opinion, it is clear that the BIA invoked and employed In re
C-V-T’s test. The BIA both cited the case and specifically referenced at least one of the
In re C-V-T factors—rehabilitation. True, the Board did not engage in an intricate factor-
by-factor analysis like the IJ did, but “[t]he BIA is not required to write an exegesis on
every contention. What is required is merely that it consider the issues raised, and
announce its decision in terms sufficient to enable a reviewing court to perceive that it
has heard and thought and not merely reacted.” Filja v. Gonzales, 447 F.3d 241, 256 (3d
Cir. 2006) (emphasis added) (quotation marks and citation omitted). The BIA satisfied
that requirement when it concluded that, “under these circumstances,”2 Cabeda’s crime of
conviction “was of such gravity that it outweigh[ed] all countervailing factors.” App. 4.
That is an individualized adjudication consistent with In re C-V-T’s mandate, and that is
all that due process demands. See Calderon-Rosas v. Att’y Gen., 957 F.3d 378, 384 (3d
This language also cabined the BIA’s conclusion and forecloses Cabeda’s
2
argument that the panel created a new categorical precedent that certain sex crimes merit
automatic removal, contrary to Cabeda I.
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Cir. 2020) (citing Serrano-Alberto v. Att’y Gen., 859 F.3d 208, 213 (3d Cir. 2017)); Filja,
447 F.3d at 256.
Nor did the BIA misapply the In re C-V-T factors. The Board has broad latitude to
weigh the enumerated factors based on the needs of each case. See In re Sotelo-Sotelo,
23 I. & N. Dec. at 203 (“In any balancing test, various factors, whether positive or
negative, are accorded more weight than others according to the specific facts of the
individual case. More serious misconduct necessarily weighs more heavily against an
exercise of discretion than does less serious misconduct.”). And it acted in its discretion
in concluding that two adverse factors—the underlying grounds for removal and the
nature of Cabeda’s criminal record—outweighed the factors favoring her. See App. 4.
b. The BIA’s Decision Was Based on Facts That Were Properly Before It.
Cabeda also contends that the BIA erroneously engaged in its own fact-finding in
reaching its decision. She first asserts that the BIA’s ruling had the effect of finding “a
new and self-generated fact” that “Cabeda’s crime, by its nature, is categorically
insurmountable by any sum or quality of positive equities.” Opening Br. at 53. But, as
discussed supra, the BIA’s conclusion was based on the specific circumstances of
Cabeda’s crime, so it was no more finding new facts than it was announcing a categorical
rule.
Next, Cabeda alleges the BIA “administratively noticed . . . the theoretical
consequences to certain victims” of her crime of conviction. Id. at 58. She is mistaken.
The BIA’s explanation of those consequences came from In re Jimenez-Cedillo, 27 I. &
N. Dec. 782 (BIA 2020), and it cited that case merely by way of explanation for the
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dispositive weight it placed on the seriousness of Cabeda’s offense. That citation to legal
authority did not improperly introduce a new fact, and the BIA’s decision to place the
weight it did on the gravity of Cabeda’s offense is expressly permitted by In re Sotelo-
Sotelo, 23 I. & N. Dec. at 203. Her argument on this point is thus also unavailing.
III. CONCLUSION
For the foregoing reasons, the petition for review is denied.
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