           Case: 18-14696   Date Filed: 11/05/2019   Page: 1 of 7


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 18-14696
                        Non-Argument Calendar
                      ________________________

                        Agency No. A034-607-062



CURT MARTIN JUNIOR ROBLEY,

                                                                      Petitioner,

                                 versus

UNITED STATES ATTORNEY GENERAL,

                                                                    Respondent.

                      ________________________

                  Petition for Review of a Decision of the
                       Board of Immigration Appeals
                        ________________________

                            (November 5, 2019)

Before ED CARNES, Chief Judge, JILL PRYOR, and ANDERSON, Circuit
Judges.

PER CURIAM:
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       The Department of Homeland Security sought to remove Curt Martin Junior

Robley from the United States based on his criminal record. An immigration judge

dismissed Robley’s application for cancelation of removal under 8 U.S.C.

§ 1229b(a), and the Board of Immigration Appeals dismissed his appeal.1 Robley

now petitions for review of the Board’s decision, contending that the Board should

not have admitted and relied on a state appellate court decision as evidence that he

had been convicted of an aggravated felony.

                                                I.

       Robley is a native and citizen of Trinidad and Tobago. He became a lawful

permanent resident of the United States in 1974. 2 In 2016, after Robley returned

from a trip overseas, Homeland Security charged that he was inadmissible to the

United States because he had been convicted of cocaine possession in 1997 and of

armed robbery, attempted murder, and aggravated assault in 1988. Homeland

Security began proceedings to remove him from the country.

       Robley applied for cancellation of removal under § 1229b(a). Homeland

Security moved to dismiss his application, arguing that his 1988 convictions are


       1
         The immigration judge, Homeland Security, and the Board all used the word
“pretermit” to refer to what the immigration judge did to Robley’s petition. The parties use it in
their appellate briefs, too. Because we prefer plain English, we will use the word “dismiss”
instead.
       2
        An alien who is a lawful permanent resident has “the status of having been lawfully
accorded the privilege of residing permanently in the United States as an immigrant in
accordance with the immigration laws.” 8 U.S.C. § 1101(a)(20).
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aggravated felonies that make him ineligible for that relief. But the court

documents from Robley’s 1988 case are inconsistent — the crimes alleged in the

indictment are different from the ones to which he pleaded guilty. To clear up that

confusion, Homeland Security submitted a New Jersey appellate court decision

affirming the sentence imposed in Robley’s 1988 case. The decision states that

Robley was indicted for robbery, under N.J. Stat. § 2C:15-1; attempted murder,

under N.J. Stat. § 2C:11-3; and aggravated assault, under N.J. Stat. § 2C:12-

1(b)(1); and that he pleaded guilty to those same counts of armed robbery,

attempted murder, and aggravated assault. The immigration judge, relying in part

on that appellate decision, found that Robley had in fact been convicted of an

aggravated felony. He dismissed Robley’s application.

      Robley appealed to the Board. He contended that the state appellate court

decision was not admissible under 8 C.F.R. § 1003.41 as evidence of his

convictions. He also contended that the appellate decision was not reliable

evidence and did not establish that he had been convicted of any particular crime.

But the Board agreed with the immigration judge and dismissed Robley’s appeal.

Robley now petitions this Court for review on the same grounds.

                                         II.

      When the Board issues its own decision and does not expressly adopt the

opinion or reasoning of the immigration judge, as it did here, we review only the


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Board’s decision. See Lopez v. U.S. Att’y Gen., 914 F.3d 1292, 1297 (11th Cir.

2019). We review the Board’s legal conclusions de novo and its factual

determinations for substantial evidence. Id. We review our own subject matter

jurisdiction de novo. Malu v. U.S. Att’y Gen., 764 F.3d 1282, 1286 (11th Cir.

2014).

      By statute we lack jurisdiction to review any final removal order against an

alien who is removable because he committed a controlled substance offense. See

8 U.S.C. § 1252(a)(2)(C); Lopez, 914 F.3d at 1297. And we lack jurisdiction to

review the Board’s discretionary denial of cancellation of removal. See 8 U.S.C.

§ 1252(a)(2)(B)(i). But we may still review constitutional claims or questions of

law raised in a petition for review. See id. § 1252(a)(2)(D). So even when an alien

concedes that he is removable based on a covered criminal conviction, we still

have jurisdiction to consider a question of law relating to his eligibility for

discretionary relief. See Donawa v. U.S. Att’y Gen., 735 F.3d 1275, 1279–80

(11th Cir. 2013). That jurisdiction does not include the power to review “garden-

variety abuse of discretion” arguments about how the Board weighed the facts in

the record. Alvarez Acosta v. U.S. Att’y Gen., 524 F.3d 1191, 1196–97 (11th Cir.

2008).

      Here Robley’s challenge to the reliability of the state appellate court

decision is beyond our jurisdiction to review. That challenge goes to the Board’s


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weighing of the evidence, not to any legal or constitutional question. See id. The

same goes for Robley’s challenge to the Board’s finding that Robley had in fact

been convicted of attempted murder, aggravated assault, and armed robbery. An

argument that the Board’s factual finding was not supported by evidence in the

record does not state an exception to the jurisdictional bar. Garcia v. Att’y Gen.,

329 F.3d 1217, 1222 (11th Cir. 2003). To the extent that Robley’s petition seeks

review of those issues, we must dismiss it.

      But we can consider Robley’s contention that the Board erroneously applied

8 C.F.R. § 1003.41. Whether the Board misinterpreted a federal regulation is a

legal question for the purposes of 8 U.S.C. § 1252(a)(2)(D). See, e.g., Dormescar

v. U.S. Att’y Gen., 690 F.3d 1258, 1268, 1270–71 (11th Cir. 2012) (exercising

jurisdiction over the question whether the Board and Homeland Security violated

applicable regulations).

      That does not help Robley much because his contention lacks merit. Section

1003.41(d) allows an immigration judge to admit “evidence that reasonably

indicates the existence of a criminal conviction.” We have never interpreted

§ 1003.41(d) in a published opinion, but we have interpreted a closely related

statute, 8 U.S.C. § 1229a(c)(3). Under that statute we have held that evidence is

admissible to prove an alien’s prior criminal conviction if it is “probative.”

Fequiere v. Ashcroft, 279 F.3d 1325, 1327 (11th Cir. 2002), superseded by statute


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on other grounds as recognized by Donawa, 735 F.3d at 1281. Other circuits have

used a similar standard when applying § 1003.41(d). See, e.g., Fraser v. Lynch,

795 F.3d 859, 863–64 (8th Cir. 2015); Barradas v. Holder, 582 F.3d 754, 762–63

(7th Cir. 2009); Francis v. Gonzales, 442 F.3d 131, 141–44 (2d Cir. 2006). And

that standard is consistent with the Department of Justice’s commentary on the

regulation: “The proposed rule anticipates that other evidence may be used to

demonstrate a criminal conviction, if in the discretion of the Immigration Judge, it

is deemed probative and relevant.” Executive Office for Immigration Review;

Criminal Conviction Records, 57 Fed. Reg. 60,740 (proposed Dec. 14, 1992)

(originally to be codified at 8 C.F.R. § 3.41) (emphasis added). So evidence is

admissible under § 1003.41(d) if it is probative of the existence of a conviction.

      In this case the Board took its interpretation of § 1003.41(d) from a

precedential, three-member opinion, Matter of Velasquez, 25 I. & N. Dec. 680

(BIA 2012). In Velasquez the Board concluded that evidence is admissible under

§ 1003.41(d) to prove a conviction if it is “probative and relevant.” Id. at 686

(quotation marks omitted). That interpretation is correct. Velasquez then notes

that “documents such as an appellate court decision affirming or otherwise

referencing a conviction would appear to fall within [§ 1003.41(d)].” Id. We

agree. Regardless of whether an appellate decision, on its own, is sufficient to

prove a conviction, it is at least probative. Cf. Francis, 442 F.3d at 142–44


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(explaining that evidence can be admissible under § 1003.41(d) even if it is not

sufficient to prove a conviction). For that reason the Board did not err by

admitting an appellate decision as evidence of Robley’s criminal convictions.3

       PETITION DISMISSED IN PART AND DENIED IN PART.




       3
         Robley faults the Board for relying on a part of Velasquez that he says is dicta. But if
that was error, it was harmless, because by relying on that part of Velasquez the Board correctly
interpreted § 1003.41(d).
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