Thomas Davtian v. Attorney General United States ( 2020 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 19-1342
THOMAS SARKISOVICH DAVTIAN,
AKA Thomas Davtion, AKA Thomas Davitian,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA,
Respondent
On Petition for Review of a Final Order
of the Board of Immigration Appeals
Immigration Judge: Honorable Leo A. Finston
(No. A046-061-328)
Submitted Under Third Circuit L.A.R. 34.1(a)
March 10, 2020
Before: McKEE, AMBRO, and PHIPPS, Circuit Judges
(Opinion filed: May 26, 2020)
OPINION *
AMBRO, Circuit Judge
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Petitioner Thomas Davtian seeks our review of his final order of removal and the
denial of his application for cancellation of removal, the latter of which an Immigration
Judge (“IJ”) granted and the Board of Immigration Appeals (“BIA”) reversed on appeal.
Davtian contends that the IJ and BIA erred when they denied his application for
withholding of removal and relief under the Convention Against Torture (“CAT”). He
also claims that the IJ and BIA failed to undertake the requisite analysis before
categorizing his convictions as crimes involving moral turpitude. He did not raise these
claims before the agency; therefore we do not have jurisdiction to review them. Nor do
we have jurisdiction to review the weight the BIA gave certain evidence when evaluating
Davtian’s application for cancellation of removal. Finally, its slight mischaracterization
of evidence did not constitute de novo fact-finding. Any misstatement by the BIA was
ultimately harmless. Thus we dismiss Davtian’s petition for review in part and deny it in
part.
I. Facts and Procedural History
A. Background, Criminal History, and Convictions
Davtian came to the United States from the Soviet Union in 1996 at roughly the
age of twelve. He lived here as a lawful permanent resident for twenty-three years when
the Department of Homeland Security (“DHS”) began removal proceedings against him.
Davtian has a six-year old U.S.-citizen son, whom he has not seen for several years. He
lives with and looks after his U.S-citizen mother, who has had a series of health problems
in recent years.
2
Davtian has a significant criminal history. He was arrested sixteen times between
1998 and 2016, leading to at least four convictions. Several of his arrests involved
domestic violence. His convictions for hindering apprehension and assault in the third
degree were later characterized by DHS as crimes involving moral turpitude. Finally, in
January 2016 he was convicted of unlawful possession of a firearm and sentenced to
three years’ imprisonment.
B. Removal Proceedings before the IJ
DHS began removal proceedings against Davtian in September 2016, alleging he
was removable as a noncitizen convicted of unlawfully possessing a firearm in violation
of 18 U.S.C. § 921(a) and as a noncitizen convicted of two moral turpitude offenses not
stemming from a single scheme of misconduct. In 2017, DHS sent Davtian a Notice to
Appear before detaining him in the Essex County, New Jersey jail. Seeking relief, he
submitted applications for asylum, withholding of removal, protection under CAT, and
cancellation of removal. The IJ granted his application for cancellation of removal after
balancing the equities as required by Matter of Marin, 16 I&N Dec. 581, 584 (BIA 1978).
On one hand, the IJ found that Davtian’s lack of candor over his recent firearm
conviction suggested he is not fully rehabilitated. On the other, Davtian’s long-term
residency in the United States, employment history, family ties to his mother, and the
hardship he would suffer if removed to Ukraine, favored granting cancellation of
removal.
During proceedings before the IJ, Davtian consented to the denial of his asylum
application because he had not submitted any supporting documents other than his
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biographic information. In the subsequent order from the bench, the IJ also denied his
withholding-of-removal and CAT claims. Davtian did not object or appeal to the BIA the
denial of these claims.
C. The Board Reverses
DHS appealed to the BIA the IJ’s cancellation of Davtian’s removal. It reversed
after considering, among other things, his significant and recent criminal history. Its
decision emphasized Davtian’s lack of candor over his firearm conviction, suggesting it
“tends to minimize his culpability or responsibility for engaging in criminal or anti-social
behavior.” A.R. 4. He petitions us for review.
II. Discussion
Davtian raises four claims before us. He argues that the IJ and BIA failed to
provide the requisite moral-turpitude analysis, that the IJ and the BIA neglected to
consider his withholding-of-removal and CAT claims, and that the latter erred by failing
to consider all the relevant factors for cancellation of removal and by engaging in de novo
fact-finding.
1. We do not have jurisdiction to review Davtian’s claims unless he has
exhausted all available administrative remedies.
“[A noncitizen] is required to raise and exhaust his or her remedies as to each
claim or ground for relief if he or she is to preserve the right of judicial review of the
claim.” Abdulrahman v. Ashcroft, 330 F.3d 587, 594–95 (3d Cir. 2003) (citing 8 U.S.C.
§ 1252(d)(i)). Exhaustion requires “some effort, however insufficient, to place the
[agency] on notice of a straightforward issue being raised on appeal . . . .” Yan Lan Wu v.
Ashcroft, 393 F.3d 418, 422 (3d Cir. 2005). Davtian made no effort before the BIA to
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challenge the IJ’s denial of his application for withholding of removal and CAT relief. In
addition, he did not argue that the IJ failed to analyze whether he committed crimes of
moral turpitude in his appeal to the BIA. Accordingly, we lack jurisdiction to consider
these claims, and they are dismissed.
2. The BIA considered all relevant factors under Matter of Marin; we do not have
jurisdiction to review the BIA’s reweighing of these factors.
Davtian argues that the BIA did not consider all the social and humane factors
relevant to his application for cancellation of removal as required by Matter of Marin. As
he does not identify any specific factor unreviewed by the BIA, we interpret this claim to
be an objection to the manner in which the BIA reweighed the evidence in his case. 1 The
manner in which the BIA reweighs positive and negative factors “typically informs the
exercise of its discretion under § 1229b(a).” Cruz-Camey v. Gonzales, 504 F.3d 28, 29
(1st Cir. 2007). Save for colorable constitutional claims or questions of law, we lack
jurisdiction to review denials of discretionary relief in the form of cancellation of
removal. Pareja v. Att’y Gen., 615 F.3d 180, 186 (3d Cir. 2010) (citing 8 U.S.C.
§ 1252(a)(2)(B)(i); 1252(a)(2)(D)). Thus we also dismiss this claim.
3. Any error arising from the BIA’s mischaracterization of facts ultimately was
tangential to its decision and did not affect the outcome.
Finally, Davtian contends the BIA erred by engaging in its own factfinding when
it reversed the IJ’s cancellation of his removal. The BIA must “not engage in de novo
1
In passing, Davtian also argues that the BIA misapplied the legal standard for
cancellation of removal by requiring proof of unusual and outstanding equities. Although
it quoted the standard for relief under repealed § 212(c) of the INA, it did not require that
Davtian make a showing of unusual or outstanding equities, but instead noted that, “[a]s
the negative factors grow more serious, it becomes incumbent upon the alien to introduce
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review of findings of fact determined by an immigration judge[,]” but it is free to “review
questions of law, discretion, and judgment.” 8 C.F.R. § 1003.1(d)(3)(ii). The BIA
mischaracterized in its opinion certain facts found by the IJ, but these errors did not affect
its ultimate decision to reverse the IJ’s cancellation of removal.
Davtian first argues that the BIA misconstrued the order of protection against him.
It determined that the “order of protection against [Davtian], which prevents him from
seeing his son,” was a negative factor weighing against cancellation of removal. A.R. 4.
This misstated the IJ’s finding that the order of protection prevented Davtian “from
having any contact with the mother of his child.” Id. 106. But this mischaracterization of
the record was ultimately harmless. The IJ and BIA mentioned the protective order to
highlight Davtian’s pattern of domestic abuse, not his relationship with his son. 2 As
such, the BIA’s error ultimately is “so tangential” to its reasoning “that there is no
realistic possibility that the outcome would be different on remand.” Cao He Lin v. U.S.
Dep’t of Justice, 428 F.3d 391, 402 (2d Cir. 2005); see also Li Hua Yuan v. Att’y Gen.,
642 F.3d 420, 427 (3d Cir. 2011) (same).
Our analysis is similar regarding the BIA’s mischaracterization of Davtian’s
rehabilitation. Davtian contends that the BIA also erred by describing his “lack of candor
additional offsetting favorable evidence[.]” A.R. 4 (quoting Matter of C-V-T, 22 I&N
Dec. 7, 11-12 (BIA 1998). After weighing the factors, the BIA permissibly came to its
conclusion that the positive factors did not prevail.
2
The BIA’s description of Davtian’s protective order omits his efforts to build a positive
relationship with his son. Yet we do not believe this prejudiced Davtian, as the BIA
ultimately did consider his U.S. citizen son as a positive factor and the IJ did not mention
the child in his balancing of the equities.
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to the Immigration Judge as indicative of a lack of genuine desire or ability to rehabilitate
himself,” A.R. 4, when the IJ found that Davtian “testified in a sincere manner that he
recognizes he has made mistakes in the past and is committed to not repeating them in the
future.” Id. 111. Nevertheless, the IJ doubted that Davtian was capable of rehabilitation
despite his sincere testimony about his desire to do so; it noted that “rehabilitation is not
really present” given his determinations that Davtian’s testimony regarding his gun
conviction was “non-sensical,” “completely non-credible,” and an attempt “to deflect
culpability.” Id. 110, 111. The BIA accurately described this finding while misstating
the IJ’s findings regarding Davtian’s desire to change. Any error is once again
“tangential” given the “overwhelming evidence supporting the administrative
adjudicator’s findings[, which] make[ ] clear that the same decision would have been
reached in the absence of the error[ ].” Lin, 438 F.3d at 402. 3 We are persuaded that the
BIA’s decision to reverse the IJ’s determination is supported by evidence of Davtian’s
lack of candor and significant criminal history. This claim thus fails.
* * * * *
For these reasons, we dismiss Davtian’s petition for review in part and deny it in
part.
3
In his Response in Opposition to the Government’s Motion to Dismiss for Lack of
Jurisdiction, Davtian alleges additional instances of the BIA engaging in fact-finding.
Response in Opposition 11–13, Davtian v. Barr, No. 19-1342 (3d Cir. May 8, 2019).
These allegations fail to raise a colorable legal claim, which is required for us to exercise
jurisdiction. 8 U.S.C. §§ 1252(a)(2)(B)(i), 1252(d)(1). Further, as Davtian did not
include these claims in his opening brief to us, he has waived them. In re: Asbestos
Prods. Liab. Litig. (No. VI), 873 F.3d 232, 237 (3d Cir. 2017) (“As a general matter, an
appellant waives an argument in support of reversal if it is not raised in the opening
brief.”).
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