                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-12-2007

Donastrong-Martinez v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4503




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007

Recommended Citation
"Donastrong-Martinez v. Atty Gen USA" (2007). 2007 Decisions. Paper 1772.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1772


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2007 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                  __________

                                      No. 05-4503
                                      __________

                        VIVIAN DONASTRONG-MARTINEZ,
                                      Petitioner,

                                           vs.

                 ATTORNEY GENERAL OF THE UNITED STATES,
                                   Respondent
                              __________

                         On Petition for Review of an Order of
                          the Board of Immigration Appeals
                              U.S. Department of Justice
                               (BIA No. A 91-072-163)
                                      __________

                     Submitted Under Third Circuit L.A.R. 34.1(a)
                                November 28, 2006
                                   ___________

     Before: FUENTES and GARTH, Circuit Judges, and POLLAK, District Judge 1


                           (Opinion Filed: January 12 , 2007)
                                     __________

                                       OPINION
                                      __________




      1
       The Honorable Louis H. Pollak, Senior District Judge for the Eastern District of
Pennsylvania, sitting by designation.
POLLAK, District Judge:

       Petitioner Vivian Donastrong-Martinez (also known as Vivian Donastorg)

petitions this Court for review of a decision of the Board of Immigration Appeals (BIA)

that adopted and affirmed the decision of an Immigration Judge (IJ) denying his

application for a waiver under § 212(c) of the Immigration and Nationality Act, 8 U.S.C.

§ 1182(c). For the reasons set forth herein, we dismiss the petition for review.

                                             I.

       Petitioner is a native and citizen of the Dominican Republic. He first entered the

United States on or about July 4, 1985, without being inspected by an immigration

officer. On March 2, 1989, he was granted temporary residence as a special agricultural

worker, and on December 1, 1990, he was granted permanent residence as a special

agricultural worker.

       On April 2, 1992, petitioner was convicted in the Court of Common Pleas in York

County, Pennsylvania of possession of cocaine with intent to deliver in violation of

Pennsylvania law. On March 31, 1995, the Immigration and Naturalization Service

(INS) 2 issued an Order to Show Cause and Notice of Hearing, charging that Donastrong-

Martinez was removable pursuant to two sections of the Immigration and Nationality Act




       2
        As of March 1, 2003, the Immigration and Naturalization Service was absorbed
by the Department of Homeland Security and became known as the Bureau of
Immigration and Customs Enforcement. See Homeland Security Act of 2002, Pub. L. No.
109-396, 116 Stat. 2135, 2205 (codified as amended at 6 U.S.C. § 291(a)).

                                            -1-
(INA). First, INS charged that Donastrong-Martinez was removable under section

241(a)(2)(B)(i) of the Act, 8 U.S.C. § 1251(a)(2)(B)(i) (repealed 1996) as an alien

convicted of a violation of any law relating to a controlled substance. Next, the INS

contended that Donastrong-Martinez was removable as an alien “convicted of an

aggravated felony” under section 241(a)(2)(A)(iii) of the INA, codified at 8 U.S.C. §

1251(a)(2)(A)(iii) (1995) but now redesignated as INA § 237(a)(2)(A)(iii), 8 U.S.C. §

1227(a)(2)(A)(iii).

       At a hearing before the Immigration Judge on March 21, 1996, petitioner admitted

the allegations in the Order to Show Cause, and the IJ concluded that petitioner was

properly removable under the INA as an alien convicted of a drug-related offense and an

aggravated felony. The IJ informed Donastrong-Martinez that he was potentially eligible

to apply for a waiver of deportability pursuant to section 212(c) of the INA, codified at 8

U.S.C. § 1182(c) (1994) (repealed effective April 1, 1997) and scheduled a hearing on the

issue of such relief. A.R. 577–80.

       The hearing took place on January 27, 1997, and the IJ denied Donastrong-

Martinez’s application for § 212(c) relief, directing that the Antiterrorism and Effective

Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (AEDPA) rendered him

ineligible for relief because he had been convicted of a drug-related crime and an




                                             -2-
aggravated felony.3 The IJ thus ordered that Donastrong-Martinez be removed to the

Dominican Republic.

       Petitioner appealed the IJ’s decision to the BIA on February 26, 1997, and the BIA

dismissed the appeal on September 8, 1998, finding that AEDPA rendered Donastrong-

Martinez statutorily ineligible for relief. The Board noted that “[i]f the respondent

conceded deportability prior to the enactment of AEDPA on April 24, 1996, in reliance

on the availability of section 212(c) relief, the proceedings may be reopened for the

limited purpose of contesting deportability” under Matter of Soriano, 21 I. & N. Dec. 516

(BIA 1996). A.R. 554.

       On July 18, 2001, Donastrong-Martinez filed a motion to reopen, arguing that he

was eligible for a Soriano reopening because he had filed his petition for § 212(c) relief

prior to April 24, 1996. The INS did not oppose the motion to reopen. A.R. 530. The

BIA granted the motion on August 16, 2001, remanding the case to the Immigration

Judge so that Donastrong-Martinez could “attempt to meet his burden of proving that he

is deserving of a favorable exercise of discretion on his application for 212(c) relief.”

A.R. 529.



       3
         Section 440(d) of AEDPA, codified at 8 U.S.C. § 1182, restricted the eligibility
of some classes of aliens for discretionary relief under § 212(c), barring relief to aliens
removable by reason of having committed drug-related crimes and aggravated felonies;
however, AEDPA lacked express guidance as to whether its provisions applied to
criminal conduct undertaken prior to the statute’s enactment. In Matter of Soriano, 21 I.
& N. Dec. 516 (BIA 1996), the BIA held that AEDPA’s bar applies only to applications
for relief from removal filed after AEDPA’s effective date of April 24, 1996.

                                             -3-
                                              II.

       The Immigration Judge conducted a series of hearings on the issue of discretionary

relief under § 212(c).4 He noted that “[r]elief under section 212(c) . . . is not available to

all who are able to demonstrate statutory eligibility but requires that the Immigration

Court balance the factors evidencing the respondent’s undesirability as a permanent

resident of the United States with the social and humane considerations presented on his

behalf” to determine whether or not an exercise of discretion in the alien’s favor is in the

best interests of this country. J.A. at 7; see also Matter of Marin, 16 I. & N. Dec. 581

(BIA 1978). Moreover, the IJ observed that “as negative factors grow more serious, it

becomes incumbent upon the respondent to introduce additional offsetting favorable

factors, which in some cases may have to involve unusual or outstanding equities.” 5 J.A.


       4
       The hearings were held on October 9, 2002, January 6, 2004, April 27, 2004, and
May 19, 2004.
       5
         As the IJ stated:
    The favorable factors that the Board of Immigration has articulated in Matter of
    Marin include family ties within the United States, residence of long duration in
    this country, particularly when the inception of the residence occurs while the
    respondent was of a young age, evidence of hardship to the respondent and his
    family if deportation occurs, service in the armed forces, history of employment,
    the existence of family ties, evidence of valued service to the community, proof
    of genuine rehabilitation if criminal records exists, and other evidence attesting to
    the respondent’s good character among family[,] friends[,] and community.
           Adverse factors set forth in Marin include the nature and underlying
    circumstances of the deportation charge at issue as well as the seriousness of the
    respondent’s total criminal record in the United States and the presence of any
    other evidence of the respondent’s bad character and undesirability as a
    permanent resident in the United States.
J.A. at 8–9.

                                              -4-
at 8; see also Marin at 585. On May 19, 2004, Immigration Judge Donald V. Ferlise

issued an oral decision denying § 212(c) relief, concluding that the balance of factors did

not warrant an exercise of discretion in Donastrong-Martinez’s favor. He observed that

Donastrong-Martinez’s conviction was for possession of cocaine with intent to distribute,

which is a particularly serious crime. See Matter of Buscemi, 19 I. & N. Dec. 628 (BIA

1998). Therefore, “the respondent must prove unusual or outstanding equities in order to

be successful in his application.” J.A. at 8.

       In conducting the balancing test, the IJ considered that Donastrong-Martinez has

family in this country, including a wife and her three children, an ex-wife, and two

daughters with his ex-wife. The IJ further observed that Donastrong-Martinez sees his

two biological children twice a month at their aunt’s house in New York, and that he

sends $300–350/month for their support. While these facts weigh in favor of granting

§ 212(c) relief, the IJ nevertheless concluded that petitioner failed to show any unusual or

outstanding hardship that would be suffered by the family if he were removed from the

country.

       With regard to genuine rehabilitation, the IJ noted that Donastrong-Martinez had

illegally claimed two girls as his daughters on his tax returns, and that he had lied to the

court on numerous occasions, including telling the IJ that he had paid $5000 of the

$25,000 fine resulting from his drug charges, when he had actually paid less than $500 of

the fine. J.A. at 11. Moreover, at the time of the hearing, he was facing cruelty-to-animal



                                                -5-
charges.6 The IJ opined that these facts evidenced “a lack of good moral character, a lack

of rehabilitation” demonstrating that “the presence of the respondent in the United States

is not a benefit to this country.” J.A. at 13. Accordingly, the IJ concluded that, on

balance, respondent had not met his burden for § 212(c) relief; moreover, “had the

respondent met his burden, the Court would deny him that relief as a matter of

discretion.” Id.

                                             III.

       Petitioner presents two arguments on appeal. First, he contends that the IJ erred in

conducting the balancing test by not “adequately address[ing] the favorable factors which

are necessary to be considered eligible for relief.” Pet. Br. at 8. Next, he contends that

the IJ erroneously applied an “outstanding and unusual equities” test as the threshold

standard, rather than a “totality of the evidence” balancing test. Id. at 10. One contention

attacks the factual findings made by the IJ, the other criticizes the way in which the IJ

engaged in the balancing of factors, and both are outside the scope of this court’s

jurisdiction in considering a petition for review.

       Before the statute was repealed in 1996, an IJ’s decision to grant or deny § 212(c)

relief was a discretionary decision within the domain of the Executive Branch. See 8



       6
         The IJ noted that he “has no way of knowing what the outcome of this charge
will be, the outcome of this arrest. However, the Court can consider this when
entertaining whether or not [he] should exercise [his] discretion in this matter.” J.A. at
12. Donastrong-Martinez was ultimately convicted of cruelty to animals and was placed
on probation.

                                             -6-
U.S.C. § 1182(c) (repealed 1996) (aliens “may be admitted in the discretion of the

Attorney General”). When considering the limited availability of § 212(c) post-1996 in

the context of a Soriano reopening, we accord the same deference to the IJ, and 8 U.S.C.

§ 1252(a)(2)(B)(ii) bars judicial review of “any decision or action of the Attorney

General . . . the authority for which is specified under this subchapter to be in the

discretion of the Attorney General.” The federal courts retain limited jurisdiction to

consider “constitutional claims or questions of law,” as described in 8 U.S.C. §

1252(a)(2)(D); however, it is well established that “absent a specific issue of statutory

construction, the term ‘questions of law’ in 8 U.S.C. § 1252(a)(2)(D) does not provide our

Court with jurisdiction to review a petitioner’s challenge to a decision firmly committed

by statute to the discretion of the Attorney General.” Bugayong v. INS, 442 F.3d 67, 72

(2d Cir. 2006); see also Sukwanputra v. Gonzales, 434 F.3d 627, 634 (3d Cir. 2006)

(“[W]e join our sister courts in concluding that despite the changes of the REAL ID Act,

factual or discretionary determinations continue to fall outside the jurisdiction of the

courts of appeals entertaining a petition for review.”).7

       The manner in which an immigration judge considers both favorable and adverse




       7
        The Third Circuit’s decision accords with every Circuit to have considered the
issue. See, e.g., Vasile v. Gonzales, 417 F.3d 766, 768 (7th Cir. 2005); Grass v. Gonzales,
418 F.3d 876, 879 (8th Cir. 2005); Chacon-Botero v. U.S. Att’y Gen., 427 F.3d 954, 957
(11th Cir. 2005); Ramadan v. Gonzales, 427 F.3d 1218, 1222 (9th Cir. 2005); Mehilli v.
Gonzales, 433 F.3d 86, 93 (1st Cir. 2005); Jean v. Gonzales, 435 F.3d 475, 480 (4th Cir.
2006).

                                             -7-
factors when considering § 212(c) relief is discretionary and hence insulated from this

court’s review. Thus, a claim that the IJ refused to consider the full import of factors

favorable to petitioner is not subject to judicial review. 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 deported). Moreover, the way in which the IJ

employs the balancing test does not raise a constitutional claim or question of law. See

Marin, 16 I. & N. Dec. at 584, 585 (“[The BIA] has not adopted an inflexible test for an

immigration judge to use to determine as a conclusory matter whether section 212(c)

relief should be granted as a matter of discretion.”); see also Matter of Edwards, 20 I. &

N. Dec. 191, 195 (BIA 1990) (“[A]s 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.”). Petitioner’s

contention that the IJ “ignored the case law” is not sufficient to invoke our jurisdiction, as

“the mere assertion by the petitioner that the IJ ‘failed to apply the law,’ and thereby

‘committed legal error or otherwise abused his discretion,’ [does] not itself establish a

‘question[] of law’ over which we [have] jurisdiction under the REAL ID Act.” Saloum

v. U.S. Citizenship & Immigration Servs., 437 F.3d 238, 243 (2d Cir. 2006) (quoting Xiao

Ji Chen v. U.S. Dep’t of Justice, 434 F.3d 144, 154 (2d Cir. 2006)).




                                             -8-
      Thus, Donastrong-Martinez does not raise a claim within the jurisdiction of this

Court. Accordingly, we will dismiss the petition for review.




                                           -9-
