Mejia-Ortiz v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 11-3040
___________
JOSE MEJIA-ORTIZ,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A046-054-538)
Immigration Judge: Honorable Walter A. Durling
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
December 14, 2011
Before: RENDELL, VANASKIE and GARTH, Circuit Judges
(Opinion filed: December 22, 2011 )
_________
OPINION OF THE COURT
_________
PER CURIAM
Jose Mejia-Ortiz, a native and citizen of the Dominican Republic and a permanent
resident of the United States, petitions for review of agency decisions denying his request
for cancellation of removal. We agree with the respondent that we lack jurisdiction and
will, accordingly, dismiss the petition.
The Administrative Record (A.R.) reveals that the petitioner was charged with
removability under 8 U.S.C. § 1227(a)(2)(C). A.R. 456. In response, he applied for
cancellation of removal. A.R. 185–91. In an oral opinion issued March 24, 2011,
Immigration Judge (IJ) Walter A. Durling applied standards used to guide “the exercise
of discretion for cancellation,” A.R. 65, concluding that the petitioner “[was] unable to
show rehabilitation []or anything but perhaps a low-level of rehabilitative potential,”
A.R. 69 (emphasis added). Having weighed the applicable equities, IJ Durling
determined “that it would not be in the best interest of the United States to grant this
application” for cancellation of removal. A.R. 70.
On appeal to the BIA, the petitioner argued, essentially, that the IJ had erred in his
exercise of discretion. 1 A.R. 24–29. The BIA dismissed the appeal, as IJ Durling had
“correctly conclude[d] that the [petitioner did] not merit cancellation of removal in the
exercise of discretion.” A.R. 3; see also A.R. 4 (“[H]aving similarly considered and
weighed the adverse factors evidencing the [petitioner’s] undesirability as a permanent
resident with the social and humane considerations presented [o]n his behalf . . . we find
that [he] presented no arguments that would cause us to disturb the . . . conclusion that
relief was not warranted . . . in the exercise of discretion.”). This timely petition for
review followed.
While Courts of Appeals have jurisdiction to review final orders of removal under
1
Petitioner’s notice of appeal to the BIA raised several additional grounds, such as the
IJ’s failure “to consider all of the evidence in [the] case,” A.R. 53, that were not
incorporated into his eventual agency brief.
2
8 U.S.C. § 1252(a)(1), that jurisdiction explicitly does not extend to “[d]enials of
discretionary relief” under 8 U.S.C. § 1229b. See 8 U.S.C. § 1252(a)(2)(B)(i); see also
Patel v. Att’y Gen., 619 F.3d 230, 232 (3d Cir. 2010). Despite this limitation on our
power to review cancellation-of-removal decisions, we may nevertheless address
constitutional claims or questions of law raised in a petition of review therefrom, so long
as those matters are colorable. Pareja v. Att’y Gen., 615 F.3d 180, 186 (3d Cir. 2010).
The petitioner spends the majority of his opening brief arguing against the
agency’s weighing of equities. But the weighing of equities falls squarely within the
heartland of processes that we cannot review: agency action resting purely on an exercise
of discretion, rather than on, for example, an alien’s statutory eligibility for the relief in
question. We plainly lack jurisdiction over such a discretionary outcome.
The petitioner also appears to raise two additional claims for relief. First, he
asserts that IJ Durling “concluded that he was not eligible for cancellation of removal
because of his aggravated felony convictions.” We “have always had jurisdiction to
determine our own jurisdiction by engaging in an analysis of whether an alien was
convicted of a[n] . . . aggravated felony.” Stubbs v. Att’y Gen., 452 F.3d 251, 253 n.4
(3d Cir. 2006). Yet as we observed supra, IJ Durling did not deny relief under the
aggravated-felony bar of 8 U.S.C. § 1229b(a)(3), but instead did so after a discretionary
weighing of equities—the approach also taken by the BIA. The petitioner also contends
that “his crime of gun possession is not one involving moral turpitude.” This aside
cannot confer jurisdiction on this tribunal, as the petitioner did not raise the argument or
3
its equivalent in front of the BIA, and it is hence jurisdictionally defective itself. Lin v.
Att’y Gen., 543 F.3d 114, 119 (3d Cir. 2008). Besides, it is irrelevant whether the crime
of gun possession is one implicating “moral turpitude”; such a determination did not
inform the basis of the agency’s decisions, see Konan v. Att’y Gen., 432 F.3d 497, 501
(3d Cir. 2005), and in any case, crimes of moral turpitude do not serve as a bar to
cancellation-of-removal relief for permanent residents. Compare 8 U.S.C. § 1229b(a),
with 8 U.S.C. § 1229b(b).
In sum, as the agency decisions were based solely on a judicially unreviewable
exercise of discretion, and as the petitioner raises no colorable constitutional claims or
questions of law that we would otherwise be able to address, we will dismiss his petition
for review for lack of jurisdiction.
4