                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-24-2008

Dominique v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3265




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                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 07-3265
                                      ___________

                           MARIE MYRLENE DOMINIQUE,
                                            Petitioner

                                            v.

                  ATTORNEY GENERAL OF THE UNITED STATES
                        ___________________________

                         Petition for Review of an Order of the
                          United States Department of Justice
                             Board of Immigration Appeals
                                 (BIA No. A37 320 384)
                    Immigration Judge: Honorable Andrew R. Arthur
                            __________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    July 23, 2008

      Before: RENDELL, GREENBERG and VAN ANTWERPEN, Circuit Judges

                                  (Filed: July 24, 2008)
                                      ___________

                               OPINION OF THE COURT
                                    ___________

PER CURIAM

       Marie Myrlene Dominique, a native and citizen of Haiti, arrived in the United

States in 1984, when she was twelve years old. In April 1995, Dominique pled guilty in

the United States District Court for the Middle District of North Carolina to possession of
cocaine base with intent to distribute. See 21 U.S.C. § 841(a). She was sentenced to 151

months in prison. The government later charged Dominique with deportability for having

been convicted of an aggravated felony, see Immigration and Nationality Act (“INA”)

§ 237(a)(2)(A)(iii) [8 U.S.C. § 1227(a)(2)(A)(iii)], and for having been convicted of a

controlled substance offense, see INA § 237(a)(2)(B)(i) [8 U.S.C. § 1227(a)(2)(B)(i)]. In

March 1997, an Immigration Judge (“IJ”) found Dominique deportable as charged. No

appeal was taken. Years later, Dominique attempted to reopen her case to apply for a

waiver of removal under INA § 212(c) [8 U.S.C. § 1182(c)] (repealed 1996), a

discretionary benefit that was available prior to the effective date of the Illegal

Immigration Reform and Immigrant Responsibility Act. See INS v. St. Cyr, 533 U.S.

289, 325 (2001). Although her first attempts at reopening were unsuccessful, ultimately

the United States Court of Appeals for the Second Circuit issued a stipulation and order

directing that she be permitted to seek § 212(c) relief.

       As a result, the IJ held a hearing, at which Dominique and several of her family

members testified. Based on the evidence presented at the hearing, the IJ identified

various positive and negative factors to be balanced in the exercise of discretion. The IJ’s

“key factual finding,” according to Dominique, was that she committed the drug offense

because the estranged father of her then five-year-old daughter threatened that Dominique

would not see her daughter again if she did not agree to transport drugs for him.

Additional positive factors included Dominique’s “strong relationship” with her close



                                               2
relatives in the United States, the fact that she had lived in the United States since she was

twelve years old, the suffering she would experience if deported (due in part to her high

blood pressure and the relative uselessness of her employment skills), the effort she put

into earning her GED and learning vocational skills while in prison, and her good

character, as evidenced by the testimony of her family members. The negative factors

weighing against a waiver were the serious nature of Dominique’s drug offense, the

failure throughout her criminal proceedings and sentence to disclose that she knew the

person who asked her to transport drugs, and the lies she told about her prior arrests at the

time she was apprehended. Ultimately, the IJ concluded that, on balance, the evidence

demonstrated that Dominique merited a favorable exercise of discretion.

       The government filed an appeal, which the BIA sustained. The BIA noted that it

had to “balance the adverse factors evidencing [Dominique’s] undesirability as a

permanent resident with the social and humane considerations presented in her behalf.”

The BIA also found that Dominique had to present “unusual or outstanding equities”

because she had been convicted of a serious drug offense. See Matter of Buscemi, 19 I.

& N. Dec. 628, 633 (BIA 1988) (stating that “as the negative factors grow more serious, it

becomes incumbent upon the alien to introduce[] additional offsetting favorable evidence,

which in some cases may have to involve unusual or outstanding equities”). According to

the BIA, Dominique possessed “substantial favorable equities,” including: the duress she

was under when she committed the crime; her family ties to her United States citizen



                                              3
children and siblings; her long lawful permanent residency in the United States; the

remorse she expressed for her crime; the emotional hardship to her relatives if she was

deported; and testimony, letters, and affidavits from family who supported her request for

relief. On the other side of the scale, the BIA emphasized that Dominique’s offense

involved a large quantity of drugs, that she was sentenced to a “lengthy” prison term, and

that her removal from the United States would not create a significant hardship for her

teenage children because they had already been without her economic and emotional

support during her incarceration. Furthermore, the Board noted that Dominique did not

own substantial property in this country, did not serve in the armed forces, and has not

been a person of significant value to the community. After balancing these factors, the

BIA found that “a favorable exercise of discretion would not be in the best interest of the

United States.” This petition for review followed.

       The government argues that we lack jurisdiction because Dominique seeks review

of the discretionary denial of relief under § 212(c). The INA provides that “no court shall

have jurisdiction to review . . . any decision or action of the Attorney General . . . the

authority for which is specified under [relevant provisions of the INA] to be in the

discretion of the Attorney General.” INA § 242(a)(2)(B)(ii) [8 U.S.C.

§ 1252(a)(2)(B)(ii)]. The decision to grant or deny relief pursuant to § 212(c) is a

discretionary one. See INS v. St. Cyr, 533 U.S. 289, 325 (2001). Therefore, to the extent

that Dominique challenges the Board’s conclusion that she does not warrant the favorable



                                               4
exercise of discretion for relief under § 212(c), we lack jurisdiction.1 See

Avendano-Espejo v. Department of Homeland Security, 448 F.3d 503, 505 (2d Cir. 2006)

(“We hold that an IJ’s decision to grant or deny a section 212(c) waiver of removal

constitutes a discretionary decision that we lack jurisdiction to review under 8 U.S.C.

§ 1252(a)(2)(B)(ii).”).

       This does not end the jurisdictional inquiry, however, because the REAL ID Act of

2005 restored direct review of constitutional claims and questions of law presented in any

petition for review of a final removal order. See INA § 242(a)(2)(D) [8 U.S.C.

§ 1252(a)(2)(D)]; Papageorgiou v. Gonzales, 413 F.3d 356, 358 (3d Cir. 2005). Thus, we

may consider whether the Board, in exercising its discretion, violated a rule of law or a

provision of the Constitution. See Chen v. Dep’t of Justice, 471 F.3d 315, 329 (2d Cir.

2006) (holding that a petition raises a question of law when it alleges a “fact-finding

which is flawed by an error of law” or an “abuse of discretion” that is “based on a legally

erroneous standard”). Dominique alleges that the BIA improperly reviewed the



  1
     Dominique asserts that the BIA failed to consider the personal hardships she would
face if removed and improperly weighed the hardships to her family. While evidence of
these hardships is certainly relevant to the § 212(c) analysis, see Matter of Edwards, 20 I.
& N. Dec. 191, 195 (BIA 1990), Dominique’s claims fall outside our jurisdiction. See
Elysee v. Gonzales, 437 F.3d 221, 223-24 (1st Cir. 2006) (finding no colorable
constitutional claim or question of law where petitioner argued that IJ “complete[ly]
disregard[ed]” the relevant hardships that would be faced by his children if he were
removed). In any event, we are convinced that the BIA’s consideration of the equities in
this case was adequate. Cf. Filja v. Gonzales, 447 F.3d 241, 256 (3d Cir. 2006) (holding
that the “BIA must at least show that it has reviewed the record and grasped the movant’s
claims.”).

                                              5
“credibility findings and factual underpinnings” of the IJ’s decision de novo, rather than

for clear error, as required by 8 C.F.R. § 1003.1(d)(3)(i). Whether the BIA conformed

with its own regulations presents a question of law. See Wood v. Mukasey, 516 F.3d 564,

568 (7th Cir. 2008) (holding that jurisdiction exists to review legal question of whether

the BIA exceeded its appellate review authority under § 1003.1(d)); Fadiga v. Att’y Gen.,

488 F.3d 142, 153-54 (3d Cir. 2007) (stating that whether the BIA applied the correct

legal standard is a question of law). Therefore, we have jurisdiction to review this portion

of Dominique’s petition.

       Under the regulations, “[t]he Board will not engage in de novo review of findings

of fact determined by an immigration judge,” § 1003.1(d)(3)(i), and “will not engage in

factfinding in the course of deciding appeals.” § 1003.1(d)(3)(iv). Instead, the BIA may

review the IJ’s factual findings only to determine whether they are “clearly erroneous.”

§ 1003.1(d)(3)(i). “[Q]uestions of law, discretion, and judgment and all other issues in

appeals from decisions of [IJs]” may be reviewed by the Board de novo. See 8 C.F.R.

§ 1003.1(d)(3)(ii).

       Dominique argues that the Board, without applying the clearly erroneous standard

of review, “reversed” the IJ’s factual conclusion that she credibly testified about the

circumstances the drug offense. Importantly, however, the Board never rejected the IJ’s

factfinding on this issue. To the contrary, the BIA specifically recognized that

Dominique “testified that she committed her crime under duress, fearing that the



                                              6
individual who gave her the drugs would hurt her children if she refused to transport them

or revealed his involvement.” The BIA continued that because Dominique “must be

considered guilty” of a serious drug offense, she was required to present “unusual or

outstanding equities.” In reaching this conclusion, the BIA cited In re Y-L-, 23 I. & N.

Dec. 270 (BIA 2002), which Dominique argues “has absolutely nothing to do with the

legal or factual matters of [her] case.” She emphasizes that In re Y-L- involved neither

crimes committed under coercion nor an application for § 212(c) relief. The BIA cited

the case, however, only for the proposition that “there are few crimes more exploitative

than cocaine trafficking, and fewer yet that are less conducive to the good order and

happiness of the community.” Notably, the BIA’s analysis did not involve any

factfinding and did not upset the IJ’s determination that Dominique’s drug offense was “a

very grave, adverse factor.” Rather, the Board, in re-weighing the positive and negative

factors, accepted the IJ’s findings regarding the nature and circumstances of Dominique’s

offense, and concluded that she did not warrant a favorable exercise of discretion. We

conclude, therefore, that the BIA did not apply an incorrect standard of review in

reversing the IJ’s discretionary grant of relief under § 212(c).

       For the foregoing reasons, we will dismiss that portion of Dominique’s petition for

review to the extent seeks to challenge the Board’s conclusion that she does not warrant

the favorable exercise of discretion for relief under § 212(c). We will deny the petition in




                                              7
all other respects.2




  2
    The government’s motion to dismiss for lack of jurisdiction is denied in part and
granted in part.

                                            8
