Manuel Coreas v. Eric Holder, Jr. ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-1680
MANUEL COREAS,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Argued: March 21, 2013 Decided: June 6, 2013
Before AGEE, KEENAN, and FLOYD, Circuit Judges.
Petition dismissed in part and denied in part by unpublished per
curiam opinion.
ARGUED: Manuel Rivera, Jr., LAW OFFICE OF MANUEL RIVERA, ESQ.,
Arlington, Virginia, for Petitioner. Bernard Arthur Joseph,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent. ON BRIEF: Stuart F. Delery, Acting Assistant
Attorney General, Civil Division, Ernesto H. Molina, Jr.,
Assistant Director, Office of Immigration Litigation, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Petitioner Manuel Coreas, a citizen of El Salvador, has
lived in the United States since November 1994. His status was
adjusted to that of a lawful permanent resident on January 7,
1998. Based on his April 2001 conviction in Virginia state
court for petit larceny, however, the Department of Homeland
Security (DHS) initiated removal proceedings against him.
Coreas subsequently filed an application for cancellation of
removal, which the immigration judge (IJ) granted. The DHS
appealed the IJ’s decision to the Board of Immigration Appeals
(BIA). The BIA sustained the DHS’s appeal, vacated the IJ’s
decision, and ordered that Coreas be removed to El Salvador.
Thereafter, Coreas filed a petition for review with this Court.
For the reasons that follow, we dismiss in part and deny in part
Coreas’s petition.
I.
There is no dispute that Coreas committed a crime of moral
turpitude. On April 26, 2001, he was convicted in Loudoun
County General District Court of petit larceny, which he
committed on or about January 7, 2001. For that offense, a
sentence of one year may be imposed. See Va. Code § 18.2-96
(stating that the crime of petit larceny “shall be punishable as
a Class 1 misdemeanor”); Id. § 18.2-11(a) (“For Class 1
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misdemeanors, confinement in jail for not more than twelve
months and a fine of not more than $2,500, either or both.”).
Afterwards, with the issuance and service of a notice to
appear by a DHS group supervisor, the DHS commenced removal
proceedings against Coreas under 8 U.S.C. § 1227(a)(2)(A)(i),
which allows removal when a lawful permanent resident is
convicted within five years after admission of a crime involving
moral turpitude for which a sentence of one year or longer may
be imposed. Coreas subsequently filed an application for
cancellation of removal for permanent residents, pursuant to 8
U.S.C. § 1229b(a), which the IJ granted. The DHS then filed a
Notice of Appeal (NOA) with the BIA. The BIA thereafter vacated
the IJ’s decision and ordered that Coreas be removed. Coreas
then filed his petition for review with this Court.
II.
Coreas argues that we should reverse the BIA’s decision
vacating the IJ’s order cancelling his removal because,
according to Coreas, the BIA failed to consider all of the
required factors and the BIA improperly engaged in its own
factfinding. But before we can consider these claims, we must
first determine whether we have jurisdiction to do so. “Federal
appellate courts determine de novo whether they have subject
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matter jurisdiction to decide a case.” Kporlor v. Holder, 597
F.3d 222, 225 (4th Cir. 2010).
According to 8 U.S.C. § 1252(a)(2)(B)-(i), “[n]o court
shall have jurisdiction to review any judgment regarding the
granting of relief under . . . 1229b,” the section regarding
cancellation of removal. However, the statute goes on to make
clear that the courts of appeals retain jurisdiction to review
constitutional claims and questions of law. See id.
§ 1252(a)(2)(D) (“Nothing in subparagraph (B) . . . shall be
construed as precluding review of constitutional claims or
questions of law raised upon a petition for review filed with an
appropriate court of appeals in accordance with this section.”).
Coreas attempts to get past the jurisdictional bar by
arguing that the BIA “failed to consider all of the factors
required by law in determining an application for cancellation
of removal.” Positive factors include:
family ties within the United States, residence
of long duration in this country (particularly when
the inception of residence occurred while the
respondent was of young age), evidence of hardship to
the respondent and family if deportation occurs,
service in this country’s Armed Forces, a history of
employment, the existence of property or business
ties, evidence of value and service to the community,
proof of a genuine rehabilitation if a criminal record
exists, and other evidence attesting to a respondent’s
good character (e.g., affidavits from family, friends,
and responsible community representatives).
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Matter of Marin, 16 I. & N. Dec. 581, 584-85 (1978), abrogated
on other grounds by Matter of Edwards, 20 I. & N. Dec. 191
(1990). Adverse factors, on the other hand, involve such
matters as
the nature and underlying circumstances of the
exclusion ground at issue, the presence of additional
significant violations of this country’s immigration
laws, the existence of a criminal record and, if so,
its nature, recency, and seriousness, and the presence
of other evidence indicative of a respondent’s bad
character or undesirability as a permanent resident of
this country.
Id. at 584. Contrary to Coreas’s suggestion, however, “Marin
does not . . . purport to require consideration of all of the
factors enumerated; it merely recites a nonexhaustive list of
factors that in prior cases had been considered to be either
‘favorable’ or ‘adverse.’” Casalena v. INS, 984 F.2d 105, 107
n.5 (4th Cir. 1993).
Nevertheless, from our review of the record, it appears
that the BIA carefully considered most of the factors listed
above. As to the positive factors, it specifically discussed
Coreas’s extensive family ties to the United States, his good
work history, that his earnings are important to his family, and
that he would have difficulty finding employment in El Salvador.
The BIA also noted that Coreas’s siblings are currently
providing financial assistance to his family while he is
incarcerated, but they will be unable to do so indefinitely. It
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further recognized that Coreas has been in the United States
since the age of fourteen, that hardship would ensue with his
removal, and that he has paid his taxes and mortgage over a
period of years.
Concerning the adverse factors, the BIA observed that
Coreas has an extensive criminal history, including petit
larceny, public intoxication or swearing, driving with a
suspended license, driving while intoxicated, and driving under
the influence. The BIA also noted that the IJ had properly
found that Coreas had failed to demonstrate that he had been
rehabilitated as to his abuse of alcohol or his record of
driving while intoxicated.
Simply put, although Coreas may be displeased with the
weight that the BIA gave to the positive factors it considered,
we are unable to say that it failed to appropriately consider
them. Thus, we find no error of law.
Coreas also contends that the BIA violated 8 C.F.R.
§ 1003.1(d)(3)(i) and (iv) when it engaged in its own
factfinding, in lieu of deferring to the factfinding that the IJ
conducted. Pursuant to 8 C.F.R. § 1003.1(d)(3)(i) and (iv),
(i) The Board will not engage in de novo review of
findings of fact determined by an immigration judge.
Facts determined by the immigration judge, including
findings as to the credibility of testimony, shall be
reviewed only to determine whether the findings of the
immigration judge are clearly erroneous.
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. . .
(iv) Except for taking administrative notice of
commonly known facts such as current events or the
contents of official documents, the Board will not
engage in factfinding in the course of deciding
appeals. A party asserting that the Board cannot
properly resolve an appeal without further factfinding
must file a motion for remand. If further factfinding
is needed in a particular case, the Board may remand
the proceeding to the immigration judge or, as
appropriate, to the Service.
Our review of the record, however, convinces us that the
BIA did not tamper with the IJ’s factual findings. Instead,
conducting a de novo review of the IJ’s discretion, the BIA held
that the IJ erred. See 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.”). Thus, there is no error of law.
Because the BIA committed neither error of law that Coreas
alleges, we lack jurisdiction to review the BIA’s discretionary
decision to vacate the IJ’s order. Thus, we will dismiss this
portion of the petition.
III.
Next, Coreas claims that we ought to reverse the BIA’s
decision because his notice to appear was issued by one who is
not authorized to do so: a group supervisor. The government
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concedes that this is a legal issue, which we have jurisdiction
to adjudicate.
The Code of Federal Regulations provides, in relevant part,
the following:
Any immigration officer, or supervisor thereof,
performing an inspection of an arriving alien at a
port-of-entry may issue a notice to appear to such
alien. In addition, the following officers, or
officers acting in such capacity, may issue a notice
to appear:
. . .
(8) Field operations supervisors;
(9) Special operations supervisors;
(10) Supervisory border patrol agents;
. . .
(14) Supervisory district adjudications
officers;
(15) Supervisory asylum officers;
. . .
(23) Supervisory special agents;
. . .
(30) Supervisory deportation officers;
(31) Supervisory detention and deportation
officers;
. . .
(38) Supervisory service center adjudications
officers;
. . .
(41) Other officers or employees of the
Department or of the United States who are delegated
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the authority as provided by 8 C.F.R. [§] 2.1 to issue
notices to appear.
8 C.F.R. § 239.1(a). Further, pursuant to 8 C.F.R. § 2.1,
All authorities and functions of the Department
of Homeland Security to administer and enforce the
immigration laws are vested in the Secretary of
Homeland Security. The Secretary of Homeland Security
may, in the Secretary’s discretion, delegate any such
authority or function to any official, officer, or
employee of the Department of Homeland Security,
including delegation through successive redelegation,
or to any employee of the United States to the extent
authorized by law. Such delegation may be made by
regulation, directive, memorandum, or other means as
deemed appropriate by the Secretary in the exercise of
the Secretary’s discretion. A delegation of authority
or function may in the Secretary’s discretion be
published in the Federal Register, but such
publication is not required.
The term “group supervisor” is not found in the 8 C.F.R.
§ 239.1(a) list, and we are baffled by the government’s
inability to define exactly what a “group supervisor” is,
although specifically questioned about it at oral argument. We
are also puzzled that it was unable to answer how the DHS
delegated its authority such that a “group supervisor” could
serve the notice to appear on Coreas pursuant to 8 C.F.R. § 2.1.
Nevertheless, we are unable to say that the government’s failure
in this regard is enough to overcome the presumption of
regularity that is attached to the DHS’s issuance of a notice to
appear. See Almy v. Sebelius, 679 F.3d 297, 309 (4th Cir. 2012)
(“The presumption of regularity supports the official acts of
public officers, and, in the absence of clear evidence to the
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contrary, courts presume that they have properly discharged
their official duties.” (quoting United States v. Chem. Found.,
272 U.S. 1, 14–15 (1926) (internal quotation marks omitted))).
Moreover, “an alien must ‘establish prejudice . . . to
invalidate deportation proceedings on a claim that [his]
statutory or regulatory rights were infringed.’” Rusu v. INS,
296 F.3d 316, 320 (4th Cir. 2002) (alteration in original)
(quoting Garcia-Guzman v. Reno, 65 F. Supp. 2d 1077, 1085 (N.D.
Cal. 1999)). “And we may only find prejudice ‘when the rights
of [an] alien have been transgressed in such a way as is likely
to impact the results of the proceedings.’” Id. at 320-21
(alteration in original) (quoting Jacinto v. INS, 208 F.3d 725,
728 (9th Cir. 2000)). Simply stated, Coreas has failed to
establish such prejudice.
Thus, because Coreas has failed either to marshal any clear
evidence to alter the presumption of regularity enjoyed by the
DHS in its issuance of the notice to appear, or to demonstrate
the required prejudice discussed above, we will deny his
petition as to this issue.
IV.
Finally, Coreas maintains that we should reverse the BIA’s
decision because of the DHS’s alleged failure to abide by the
applicable regulations in drafting its NOA to the BIA. The
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government agrees that this claim also involves a legal issue,
which we have jurisdiction to decide.
As is relevant to Coreas’s petition, 8 C.F.R. § 1003.3
states, “Where the appeal concerns discretionary relief, the
appellant must state whether the alleged error relates to
statutory grounds of eligibility or to the exercise of
discretion and must identify the specific factual and legal
finding or findings that are being challenged.” Id. § 1003.3(b).
Moreover, 8 C.F.R. § 1003.1(d)(2)(i)-(A) provides that “[a]
single Boardmember or panel may summarily dismiss any appeal or
portion of any appeal in any case in which: (A) The party
concerned fails to specify the reasons for the appeal on Form
EOIR–26 or Form EOIR–29 (Notices of Appeal) or other document
filed therewith.” There is also a warning on the BIA-provided
NOA, which declares: “You must clearly explain the specific
facts and law on which you base your appeal of the [IJ’s]
decision. The [BIA] may summarily dismiss your appeal if it
cannot tell from this [NOA], or any statements attached to this
[NOA], why you are appealing.”
The DHS’s NOA set forth only the following:
The [IJ] erred in granting [Coreas’s] application
for cancellation of removal for certain permanent
residents under Section 240(A)(a) of the [Immigration
and Nationality Act] because [Coreas] does not merit a
favorable exercise of the court’s discretion. The
[DHS] also reserves the right to raise additional
issues after reviewing the transcript.
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As such, there is no question that the DHS’s NOA failed to
follow either 8 C.F.R. § 1003.3, 8 C.F.R. § 1003.1(d)(2)(i)-(A),
or the warning on the NOA. As noted by Coreas, the NOA
(1) failed to identify the findings of fact and
conclusions of law which [the] DHS was challenging,
(2) failed to cite authority supporting [the] DHS’s
appeal as to questions of law, (3) failed to identify
the specific findings of fact which [the] DHS was
contesting, and (4) failed to state whether the
asserted error related to the statutory grounds of
[Coreas’s] eligibility for cancellation of removal or
to the exercise of discretion, and failed to identify
the specific factual and legal findings being
challenged.
For these reasons, the BIA could have properly dismissed the
appeal. But, it did not.
Coreas cites only to one case to support his proposition
that the DHS’s NOA was legally insufficient to support its
appeal: Rojas-Garcia v. Ashcroft, 339 F.3d 814 (9th Cir. 2003).
In Rojas-Garcia, the Ninth Circuit considered whether the BIA
properly dismissed an appeal. Id. at 821 (“[W]e reject Rojas-
Garcia’s argument that he stated grounds for appeal with
sufficient particularity so as to avoid summary dismissal.”).
Here, however, we are called upon to decide whether it is proper
for us to disturb the BIA’s decision to consider the appeal.
For the reasons that follow, we will not upset the BIA’s
decision.
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First, “[t]he requirement of specificity is not
jurisdictional.” Pasha v. Gonzales, 433 F.3d 530, 532 (7th Cir.
2005). Hence, the BIA had the discretion to “choose between
dismissing the appeal for failure to comply with the requirement
of specificity . . . and proceeding to the merits.” Id. at 533.
We find no reversible error in its choosing the latter of these
options.
Second, both 8 C.F.R. § 1003.1(d)(2)(i)(A) and the warning
on the NOA state that the BIA “may summarily dismiss” an appeal
when the NOA lacks specificity as to the reason for the appeal.
Notably, neither one states that it “shall,” “will,” or “must”
summarily dismiss the appeal. In other words, the BIA is
permitted to dismiss the appeal, but it is not mandated to do
so.
Coreas has pointed to no compelling reason as to how the
BIA erred in considering the DHS’s appeal in this matter, and we
have been unable to uncover any. As such, we will deny Coreas’s
petition as to this issue, too.
V.
As set forth above, we have no jurisdiction to review the
BIA’s discretionary decision to vacate the IJ’s order. And, as
to the notice to appear and the NOA issues, we find no error.
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Consequently, we dismiss Coreas’s petition in part and deny it
in part.
PETITION DISMISSED IN PART
AND DENIED IN PART
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