Johnson v. Attorney General of the United States , 266 F. App'x 196 ( 2008 )


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  •                                                                                                                            Opinions of the United
    2008 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    2-25-2008
    Johnson v. Atty Gen USA
    Precedential or Non-Precedential: Non-Precedential
    Docket No. 06-5141
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    http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1532
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    NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    Case No: 06-5141
    KEVIN DAINSWOOD JOHNSON,
    Petitioner
    v.
    ATTORNEY GENERAL OF THE UNITED STATES,
    Respondent
    On Petition for Review from the Board of Immigration Appeals,
    United States Department of Justice
    BIA No. A38-744-659
    Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
    February 14, 2008
    Before: SLOVITER, and SMITH, Circuit Judges,
    DIAMOND, District Judge*
    (Filed: February 25, 2008)
    OPINION
    SMITH, Circuit Judge.
    Kevin Johnson, a native and citizen of Guyana, petitions this Court for review of a
    *
    The Honorable Gustave Diamond, Senior District Judge for the United States District
    Court for the Western District of Pennsylvania, sitting by designation.
    December 4, 2006 order of the Board of Immigration Appeals (“BIA”). The Attorney
    General has moved to dismiss Johnson’s petition on the ground that the BIA’s order was
    an exercise of discretion over which this Court lacks jurisdiction. For the reasons
    provided below, we will grant the Attorney General’s motion.
    In an Order to Show Cause dated January 17, 1997, the former Immigration and
    Naturalization Service (“INS”) charged Johnson with being deportable as a result of his
    conviction for possession of cocaine with intent to distribute within one thousand feet of
    school property. Johnson conceded his deportability but sought a waiver pursuant to
    former Section 212(c) of the Immigration and Nationality Act (“INA”), 8 U.S.C.
    § 1182(c) (repealed 1996). The Immigration Judge (“IJ”) found Johnson to be statutorily
    ineligible for this relief and ordered his deportation to Guyana, and the BIA affirmed the
    IJ’s decision in an order dated January 29, 1998. On March 29, 2005, Johnson filed a
    Motion to Reopen pursuant to INS v. St. Cyr, 
    533 U.S. 289
    , 320 (2001), and the
    regulations implementing that decision, promulgated at 8 C.F.R. § 1212.3(g) (2004). The
    BIA granted the motion and remanded the matter to the IJ.1 This time, it was undisputed
    that Johnson was statutorily eligible for a § 212(c) waiver, so the only issue before the IJ
    was whether to exercise discretion to grant such relief.
    On July 21, 2006, following a hearing, the IJ denied Johnson’s request for a
    1
    Johnson had filed a Petition for Writ of Habeas Corpus with the U.S. District Court
    for the District of New Jersey on November 14, 2000. He voluntarily dismissed the
    habeas petition after the BIA granted his Petition to Reopen.
    2
    waiver. The IJ concluded that Johnson had not shown “unusual or outstanding equities”
    and therefore had not met the threshold standard for discretionary relief. Cf. Matter of
    Buscemi, 19 I. & N. Dec. 628, 633–34 (BIA 1988) (explaining that aliens convicted of
    serious offenses may be required to show unusual or outstanding equities to satisfy the
    “threshold test for having a favorable exercise of discretion considered in his case”).
    Johnson appealed the IJ’s discretionary denial of a waiver to the BIA. On December 4,
    2006, the BIA dismissed Johnson’s appeal on grounds slightly different from those that
    the IJ had identified. The BIA rejected the IJ’s conclusion that Johnson had failed to
    show “unusual or outstanding equities,” but it nonetheless denied the waiver after
    concluding that, although “unusual or outstanding equities” were present, the balance of
    equities still weighed against Johnson. Johnson petitions for review of the BIA’s decision
    and asserts that this Court has jurisdiction under INA § 242(a)(1), codified at 8 U.S.C.
    § 1252(a)(1).
    Under the INA, discretionary denials of relief are not subject to judicial review:
    Notwithstanding any other provision of law . . . no court shall have
    jurisdiction to review . . . any other 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 section 1158(a) of this title.
    See 8 U.S.C. § 1252(a)(2)(B)(ii), as amended by the REAL ID Act of 2005, Pub. L. No.
    109-13, Div. B, 119 Stat. 231 (May 11, 2005). The “subchapter” in question is
    Subchapter II in Chapter 12 of Title 8 of the United States Code, which includes 8 U.S.C.
    3
    § 1151 through § 1381. INA § 212(c), formerly found at 8 U.S.C. § 1182(c), fell within
    the subchapter and stated that any decision to grant relief under this provision was within
    “the discretion of the Attorney General.” Thus, § 1252(a)(2)(B)(ii) establishes that courts
    lack jurisdiction over § 212(c) decisions unless they fall within the exception created by 8
    U.S.C. § 1252(a)(2)(D) for review of constitutional claims or questions of law. See
    Avendano-Espejo v. Dep't of Homeland Sec., 
    448 F.3d 503
    , 505 (2d Cir. 2006).
    Johnson argues that we have jurisdiction to review the BIA’s decision because the
    BIA reversed the IJ “as a matter of law” when it rejected the IJ’s conclusion that Johnson
    had failed to show “outstanding and unusual equities.” Johnson argues that by
    proceeding to balance the equities itself instead of remanding the matter to the IJ, the BIA
    exceeded its authority and usurped the IJ’s fact-finding role. Because the BIA’s action
    went beyond mere review of the IJ’s discretionary decision, Johnson claims, the INA’s
    limitation on judicial review of discretionary decisions does not apply.
    We conclude that the BIA’s decision was no more than an exercise of discretion.
    Johnson fails to show that the BIA engaged in improper fact-finding. All of the facts that
    the BIA cites—e.g., that Johnson’s last arrest took place while he was on probation, that
    he was placed into administrative segregation during his incarceration, and that he failed
    to register for Selective Service—come directly from the IJ’s decision of July 21, 2006.
    Johnson confuses fact-finding with balancing of equities when he asserts that the BIA
    “did not have the right to engage in that weighing [of equities] at all pursuant to 8 C.F.R.
    § 1003.1(d)(3)(iv) (2006).” In fact, 8 C.F.R. § 1003.1(d)(3)(iv) states that the BIA may
    4
    not “engage in factfinding in the course of deciding appeals.” It says nothing about
    balancing of equities, which is allowed under 8 C.F.R.§ 1003.1(d)(3)(ii) (“The Board may
    review questions of law, discretion, and judgment and all other issues in appeals from
    decisions of immigration judges de novo.”).
    Moreover, Johnson presents no authority for the proposition that, despite the
    jurisdictional restrictions imposed by § 1252(a)(2), courts can review BIA decisions
    merely because they engage in de novo balancing of the equities. In fact, several
    decisions in other circuits have explicitly held the opposite. See, e.g., Cruz-Camey v.
    Gonzales, 
    504 F.3d 28
    , 29 (1st Cir. 2007) (holding that no jurisdiction exists to review
    “the manner in which the BIA balanced the various positive and negative factors which
    typically inform the exercise of its discretion under § 1229b(a)”); Wallace v. Gonzales,
    
    463 F.3d 135
    , 140–41 (2d Cir. 2006) (holding that no jurisdiction exists to review BIA’s
    reversal of IJ’s discretionary determination and that “a review of the factual record by the
    BIA does not convert its discretionary determination as to whether a petitioner warrants
    an adjustment of status into improper factfinding”); Delgado-Reyuna v. Gonzales, 
    450 F.3d 596
    , 599–600 (5th Cir. 2006) (holding that no jurisdiction exists to review a claim
    that “the BIA improperly conducted de novo review, rather than reviewing the IJ’s
    decision for clear error, when it reweighed the facts relevant to the grant of discretionary
    relief.”). Johnson has not presented any reason for us to hold otherwise. He has not
    demonstrated that the BIA’s weighing of the equities presents any question of law that
    would allow us to review its decision under § 1252(a)(2)(D).
    5
    Johnson presents a purportedly separate argument that it was a violation of due
    process for the BIA to engage in de novo balancing of the equities instead of remanding
    the matter to the IJ. We have jurisdiction to review colorable due process claims because
    § 1252(a)(2)(D) explicitly allows judicial review of constitutional claims and questions of
    law. Because relief under § 212(c) is purely discretionary, however, Johnson cannot
    show that he has been deprived of a protected liberty or property interest. As we stated in
    Hernandez v. Gonzales, “[a]liens who seek only discretionary relief from deportation
    have no constitutional right to receive that relief.” 
    437 F.3d 341
    , 346 (3d Cir. 2006).
    Moreover, we have held that in asylum proceedings, due process entitles an alien to no
    more than: 1) fact-finding based on a record produced before the decisionmaker and
    disclosed to the alien, 2) the ability to make arguments on his or her behalf, and 3) the
    right to an individualized determination of his or her interests. See Mudric v. Attorney
    General, 
    469 F.3d 94
    , 100 (3d Cir. 2006) (citing Abdulai v. Ashcroft, 
    239 F.3d 542
    , 549
    (3d Cir. 2001)). Johnson presents no serious argument that he has been deprived of any
    of these things. He suggests that he did not receive a full hearing because the IJ never
    completed its analysis after its determination regarding “unusual or outstanding equities”
    and because the BIA never provided a “reasoned explanation as to why Mr. Johnson’s
    convictions outweighed all of the equities.” He never explains why the BIA’s
    explanation falls short of a “reasoned” one or, more importantly, how it fails to satisfy
    any due process requirement. Thus, even assuming arguendo that Johnson had an interest
    protected by due process, he has not presented a colorable due process claim that would
    6
    provide us with jurisdiction under § 1252(a)(2)(D).
    In sum, 8 U.S.C. § 1252(a)(2)(B)(ii) deprives us of jurisdiction to entertain
    Johnson’s petition, and Johnson has not shown that any exception applies. Accordingly,
    we will grant the Attorney General’s motion to dismiss for lack of jurisdiction.
    7