Ashley v. Attorney General , 195 F. App'x 44 ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
9-7-2006
Ashley v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-3024
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-3024
MILTON ASHLEY,
Petitioner,
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent.
PETITION FOR REVIEW OF A DECISION OF
THE BOARD OF IMMIGRATION APPEALS
Agency No. A 90 579 180
Submitted Under Third Circuit LAR 34.1(a)
June 28, 2006
Before: BARRY, VAN ANTWERPEN and SILER,* Circuit Judges
(Opinion Filed: September 7, 2006)
OPINION
SILER, Circuit Judge
*
The Honorable Eugene E. Siler, Senior Circuit Judge, United States Court of Appeals
for the Sixth Circuit, sitting by designation.
Petitioner Milton Ashley appeals the Board of Immigration Appeals’ (“BIA”) reversal of the
Immigration Judge’s (“IJ”) grant of discretionary waiver of deportation under 8 U.S.C. § 1182(c),
and the subsequent denial of his motion to reopen and reconsider. For the following reasons, the
petition is dismissed in part and denied in part.
I.
Ashley, a citizen of Jamaica, was ordered to be deported under 8 U.S.C. § 1182(a)(2) which
allows for removal for certain crimes, including serious sex offenses. In 1995 Ashley pled guilty to
sexually molesting his 12 year-old niece and was sentenced to probation and no jail time above what
he served while awaiting arraignment. He sought a discretionary waiver of deportation under 8
U.S.C. § 1182(c).2 The IJ granted relief on the bases that Ashley was forthcoming about his guilt
and accepted responsibility; he had completed his probation and had a clean record since; he held
the same job for 14 years and his employer even came to testify on his behalf; his children depended
on his income (though they are grown); he had successfully registered under Megan’s law as a sex
offender and had kept his distance from his victim; and he was a valuable member of his community
and did not pose a threat. The BIA reversed, stating that although the equities in favor of Ashley
were “noteworthy,” they were insufficient to overcome the heinousness of his crime. The BIA
further noted that although part of Ashley’s sentence was to undergo psychotherapy, his failure to
do so, despite his successful completion of probation, was “worrisome.”
The BIA denied Ashley’s motion to reopen in order to submit a psychologist’s report that he
2
This section on its face applies to aliens re-entering the country. It also applies to a lawfully
admitted resident alien facing deportation, but who did not depart the United States prior to
committing the acts that rendered him deportable. See Tipu v. INS, 20 F.3d 580, 582 (3d Cir.
1994).
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was unlikely to recidivate. Ashley also filed a petition for a writ of habeas corpus with the district
court, which was transferred to this court under the REAL ID Act of 2005.
II.
A.
The government contends that there is no jurisdiction to hear any of Ashley’s claims.
Jurisdiction to hear constitutional challenges is vested in this court by 8 U.S.C. § 1252(a)(2)(D).
However, we lack jurisdiction to review the denial of the motion to reopen. 8 U.S.C. §
1252(a)(2)(B)(ii) forecloses review of “any . . . decision or action of the Attorney General or the
Secretary of Homeland Security the authority for which is specified under this subchapter to be in
the discretion of the Attorney General or the Secretary of Homeland Security, other than the granting
of relief under [the asylum statute].” (Emphasis added.). “[T]his subchapter” refers to 8 U.S.C. §§
1151 to 1378. See Urena-Tavarez v. Ashcroft, 367 F.3d 154, 158 (3d Cir. 2004). Here, discretion
is vested in the Attorney General under 8 U.S.C. § 1182(c). Therefore, there is no jurisdiction to
review the denial of such discretionary relief. For the same reason there is also no jurisdiction to
review a motion to reconsider or reopen an unfavorable determination under 8 U.S.C. § 1182(c).
See Vargas v. Att’y Gen., 151 Fed. App’x 134, 136 (3d Cir. Oct. 12, 2005) (“just as our power to
review a final order is circumscribed by § 1252(a)(2)’s various jurisdiction-stripping provisions, our
jurisdiction to entertain an attack on that order mounted through filing of a motion to reopen is
equally curtailed.”) (citing Assaad v. Ashcroft, 378 F.3d 471, 474 (5th Cir. 2004)).
Thus, we have jurisdiction to review the due process claims, but lack jurisdiction to review
the denial of the discretionary waiver or for reopening or reconsideration of that denial. Accordingly,
we dismiss the latter portion of the petition on that basis.
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B.
Ashley contends that he was denied due process when the BIA denied his petition for a
waiver of deportation under 8 U.S.C. § 1182(c) because the BIA’s opinion (1) was too short as
compared to the IJ’s opinion, (2) failed to adhere to BIA precedent, and (3) was an invasion of the
BIA’s adjudicative independence and foreclosed individualized review. We review claims of
constitutional violations allegedly committed during deportation proceedings de novo. See
Bonhometre v. Gonzales, 414 F.3d 442, 446 (3d Cir. 2005).
During the removal process the procedural protections accorded to aliens “measure less than
the panoply available to a criminal defendant.” United States v. Torres, 383 F.3d 92, 104 (3d Cir.
2004) (citing Dia v. Ashcroft, 353 F.3d 228, 238-39 (3d Cir. 2003) (en banc)). “[D]ue process
requires that an alien who faces [removal] be provided (1) notice of the charges against him, (2) a
hearing before an executive or administrative tribunal, and (3) a fair opportunity to be heard.” Id.
at 104 (internal quotations omitted). Ashley does not contend that he failed to receive any of these
constitutional guarantees.
Rather, Ashley’s argument is that the opportunity afforded him was not individualized and
not substantively “fair” because the BIA was predisposed to denying his request for discretionary
relief based upon “Operation Predator,” an alleged policy in the Department of Homeland Security
mandating the deportation of sex offenders. However, Ashley did receive an individualized
determination because the IJ and BIA weighed the equities particular to his case. See De Gonzales
v. INS, 996 F.2d 804, 810-11 (6th Cir. 1993). To the extent Ashley seeks more of a guarantee, he
lacks any support. Even assuming, as Ashley contends, that Operation Predator bears upon the
BIA’s substantive determinations in sex offender cases, we have consistently rejected due process
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challenges attacking the standards for granting or denying discretionary relief. For instance, in
Torres, 383 F.3d at 104, we held that because discretionary relief is “a matter of grace rather than
of right, aliens do not have a due process liberty interest in consideration for such relief.” Then, in
Hernandez v. Gonzales, 437 F.3d 341, 346 (3d Cir. 2006), we held that there could be no due process
violation in the denial of discretionary relief under § 1182(c) because “Aliens who seek only
discretionary relief from deportation have no constitutional right to receive that relief.” Thus,
because Ashley had no right to relief from deportation and cannot establish an entitlement to such
relief, he cannot demonstrate a due process violation stemming from the policy. See also Pinho v.
INS, 249 F.3d 183, 189 (3d Cir. 2001) (suspension of deportation is discretionary relief that does not
impair any vested rights and does not give rise to due process violations).
Ashley’s two principal cases are distinguishable. First, he relies on Awolesi v. Ashcroft, 341
F.3d 227, 232-33 (3d Cir. 2003), for the proposition that the BIA’s failure to issue a fully reasoned
opinion precluded meaningful judicial review. But Awolesi addressed whether an opinion was
sufficiently detailed to determine whether the BIA’s findings of fact were based upon substantial
evidence. Id. It did not involve a purely legal issue or an exercise of discretion. Here, the BIA
accepted the IJ’s factual findings but weighed the equities represented by those facts differently.
Therefore, there was no need for a reasoned elaboration of the factual issues.
Second, Ashley relies on De Gonzales, 996 F.2d at 810-11, for the proposition that a per se
policy of denying discretion could itself amount to an abuse of discretion. First, that case was on
direct review and there was no due process challenge. On the other hand, we have held that,
generally, errors constituting an abuse of discretion do not necessarily rise to due process violations.
See Torres, 383 F.3d at 104. Second, De Gonzales nonetheless affirmed the denial of discretionary
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relief on the basis that the BIA had addressed and weighed all the relevant factors particular to that
case. Id. Likewise, here, the BIA did not quarrel with the IJ’s designation of factors as equities, but
it noted that it viewed sex crimes as serious offenses and that it did not consider Ashley’s good
character and reformed lifestyle as sufficient to merit discretionary relief.
We find the remainder of Ashley’s contention are without merit.
Petition DISMISSED in part and DENIED in part.
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