     05-3915-ag
     Noble v. Keisler

1                          UNITED STATES COURT OF APPEALS

2                              FOR THE SECOND CIRCUIT

3                                 August Term, 2006

4    (Argued: December 19, 2006                    Decided: October 2, 2007)

5                               Docket No. 05-3915-ag
6
7                       -------------------------------------

8                                   BRYAN NOBLE,

9                                    Petitioner,

10                                      - v -

11                                PETER D. KEISLER,

12                                  Respondent.*

13                      -------------------------------------

14   Before:     POOLER, SACK, and WESLEY, Circuit Judges.

15               Petition for review of a decision of the Board of

16   Immigration Appeals vacating an immigration judge's decision

17   granting the petitioner's application for a waiver of

18   inadmissibility under section 212(c) of the Immigration and

19   Nationality Act (now repealed).

20               Petition dismissed.

21                                 RUCHI THAKER, Bretz & Coven, LLP
22                                 (Matthew L. Guadagno, Kerry W. Bretz,
23                                 and Jules E. Coven, on the brief), New
24                                 York, NY for Petitioner.




           *
             Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
     Acting Attorney General Peter D. Keisler is automatically
     substituted for former Attorney General Alberto R. Gonzales as
     the respondent in this case.
1                               MELISSA A. SWAUGER, Assistant United
2                               States Attorney in the Middle District
3                               of Pennsylvania (Thomas A. Marino,
4                               United States Attorney, on the brief),
5                               Harrisburg, PA for Respondent.

6    SACK, Circuit Judge:

7                Bryan Noble, a citizen of Jamaica, petitions for review

8    of a decision by the Board of Immigration Appeals ("BIA") denying

9    his application for a waiver of inadmissibility under section

10   212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c)

11   ("INA").1   In re Bryan Noble, No. A 41 651 242 (B.I.A. June 30,

12   2005) ("BIA Opinion").    The BIA sustained the government's appeal

13   and vacated the decision of Immigration Judge ("IJ") Margaret

14   McManus granting Noble's application.    In re Bryan Noble, No. A

15   41 651 242 (Immig. Ct. N.Y. City Jan. 15, 2004) ("IJ Decision").

16               Noble now petitions for review, arguing that the BIA

17   applied an incorrect legal standard, as established by agency

18   regulations, to its review of the IJ's determination that Noble

19   had been rehabilitated subsequent to his extensive history of

20   criminal behavior.    Because we conclude that the BIA did not

21   reject a finding of fact by the IJ that Noble was rehabilitated,

22   but instead evaluated the nature and extent of his rehabilitation

23   as one equity among many in exercising its discretion, we

24   conclude that the petitioner is, in substance, asking us to



          1
             Although section 212(c) has been repealed, it
     nevertheless applies to Noble because he pleaded guilty to his
     crimes prior to the repeal of this section. Khan v. Gonzales,
     495 F.3d 31, 33 n.1 (2d Cir. 2007) (citing INS v. St. Cyr, 533
     U.S. 289, 326 (2001)).

                                      -2-
1    review an exercise of discretion by the BIA.    We do not have

2    jurisdiction to do so, and we therefore dismiss the petition.

3                                  BACKGROUND

4              Noble entered the United States on a visitor's visa in

5    1982, at the age of twelve.    He became a lawful permanent

6    resident on March 10, 1988.    Soon thereafter, he was arrested for

7    the first time.   He was subsequently arrested on six other

8    occasions.   Most of his arrests were drug-related; all led to

9    criminal proceedings in New York state courts.

10             The petitioner's legal troubles prompted the initiation

11   of his immigration proceedings and two delays thereof.    Nearly

12   fifteen years after they began, Noble now petitions this Court to

13   review the BIA's denial of discretionary relief from removal.

14             Noble's Criminal Convictions and Sentences

15             Noble's first arrest occurred some seven months after

16   he obtained lawful permanent resident status.    He pleaded guilty

17   in 1989 to criminal possession of a controlled substance.     He was

18   sentenced as a youthful offender to five years' probation.

19             On April 26, 1990, shortly after his probationary

20   sentence was imposed, Noble was again arrested, this time for

21   criminal impersonation.   He pleaded guilty to disorderly conduct

22   for which he was sentenced to pay a fine.

23             Seven months later, Noble was arrested following a

24   police drug-raid.   At the time of his arrest, he had twenty-one

25   bags of cocaine base ("crack"), individually packaged for sale,

26   at his feet.   On October 30, 1991, before the possession-of-crack

                                      -3-
1    prosecution had been resolved, Noble was arrested in the course

2    of another police drug raid for possession of crack with the

3    intent to sell.   At the time of this arrest, Noble also had in

4    his possession a loaded semi-automatic pistol with a defaced

5    serial number.    On February 25, 1992, while these two cases were

6    pending, Noble was arrested yet again for possession of crack.

7              On November 4, 1992, Noble pleaded guilty to the

8    criminal charges arising from his third and fourth arrests and

9    was sentenced, for each crime, to three-and-one-half to ten-and-

10   one-half years' imprisonment, to run concurrently.    Noble served

11   twenty-two months' imprisonment for these offenses.

12             Noble's Removal Proceedings

13             On August 13, 1993, the INS issued an order to show

14   cause to Noble based on his previous convictions for drug-

15   trafficking crimes.2   In it, the INS charged Noble with

16   removability under section 241(a)(2)(B)(i) of the INA, 8 U.S.C.

17   § 1251(a)(2)(A)(i) (1994) (current version at 8 U.S.C. § 1227),

18   as an alien convicted of a controlled substance violation, and

19   section 241(a)(2)(A)(iii) of the INA, 8 U.S.C.

20   § 1251(a)(2)(A)(iii) (1994) (current version at 8 U.S.C. § 1227),




          2
             On March 1, 2003, the Immigration and Naturalization
     Service was reconstituted as the Bureau of Immigration and
     Customs Enforcement ("ICE") and the Bureau of U.S. Citizenship
     and Immigration Services, both within the Department of Homeland
     Security. See Monter v. Gonzales, 430 F.3d 546, 548 n.1 (2d Cir.
     2005). Because Noble's removal proceedings began before this
     date, we refer to it as the INS in this opinion where
     appropriate.
                                    -4-
1    as an alien convicted of an aggravated felony.   Noble has never

2    disputed his deportability or removability on these bases.

3               On January 10, 1995, Noble filed an application for

4    relief under section 212(c).   While Noble's section 212(c)

5    hearing was pending, he was arrested a sixth time, this time for

6    selling crack.   His deportation proceedings were administratively

7    closed pending a resolution of charges in connection with that

8    arrest.   He later pleaded guilty to criminal possession of a

9    controlled substance and was sentenced to a conditional

10   discharge.

11              Noble's removal hearings were reopened but suspended

12   again after he was arrested a seventh time on February 21, 2000.

13   Noble pleaded guilty to charges of disorderly conduct arising out

14   of a shoplifting incident, was sentenced to a conditional

15   discharge, and was asked, and agreed, to participate in a drug

16   recovery program.

17              The IJ's Decision

18              On March 28, 2002, almost a decade after deportation

19   proceedings against him had begun, Noble received a hearing

20   before an IJ to address his section 212(c) application.     He and

21   his wife both testified.

22              Noble recounted his extensive criminal record and

23   admitted to having committed additional drug offenses for which

24   he had not been arrested and, therefore, of which the INS had not

25   been aware.   He expressed his regret about that phase of his life

26   and asserted that he had since turned his life around.

                                     -5-
1              Noble's wife testified to Noble's importance to their

2    family as a father, stepfather, caretaker, and breadwinner.    She

3    said that, were Noble removed from the United States, the family

4    would no longer be able to afford to pay the mortgage on their

5    home and would therefore be forced to leave it.

6              Noble also submitted several documents in support of

7    his relief application relating to his marriage and extensive

8    family ties in the United States, his employment record and

9    financial stability, his post-parole record, and his positive

10   influence on his children.

11             The IJ issued a written decision on January 15, 2004.

12   After balancing the equities in accordance with Matter of Marin,

13   16 I. & N. Dec. 581 (BIA 1978), she granted Noble a waiver of

14   removal under section 212(c).    See IJ Decision at 6-9.   She found

15   Noble's testimony to be credible -- his "level of honesty

16   convince[d] [her] that he [had] been forthright in all of his

17   testimony."   Id. at 2.   The IJ identified several "unusual and

18   outstanding equities" that offset Noble's extensive criminal

19   history, including his family connections to the United States,

20   his positive family relationships, the financial and emotional

21   support he provided to his family, and his steady employment.

22   Id. at 6-9.   Addressing the issue of rehabilitation, the IJ noted

23   that Noble had "expressed profound remorse for his criminal

24   convictions and regrets his criminal involvement."    Id. at 7.

25   The IJ further found that Noble had "demonstrated a willingness

26   to continue his progress toward a drug-free and crime-free

                                      -6-
1    lifestyle."   Id. at 8.   The IJ said:   "In light of the

2    for[e]going analysis and [Noble's] remorse for his past actions,

3    the Court concludes that [Noble] has finally demonstrated good

4    efforts at rehabilitation."     Id.   The IJ concluded that Noble's

5    positive equities outweighed the negative ones and granted

6    Noble's request for a waiver of inadmissibility pursuant to

7    section 212(c). See id. at 9.

8               The BIA's Opinion

9               The government appealed the IJ's decision to the BIA.

10   According to the BIA, the "sole question on appeal [was] whether

11   the respondent merit[ed] section 212(c) relief in the exercise of

12   discretion, a matter [the] Board reviews de novo."        BIA Opinion

13   at 1.   The BIA considered a variety of factors: the seriousness

14   of the criminal charges against Noble; the number of them

15   (including those which he admitted committing but for which he

16   had not been convicted); that "the circumstances under which some

17   of these crimes were committed suggest the possibility that he

18   was willing and able to advance his criminal enterprise by means

19   of violence"; and the fact that the criminal behavior continued

20   after his deportation proceedings began.      Id. at 2.

21              In light of these "significant negative factors," the

22   BIA opined, Noble would be entitled to relief only if he "[came]

23   forward with evidence of unusual or outstanding equities,

24   including proof of genuine rehabilitation."      Id.    The BIA first

25   acknowledged that some of Noble's positive factors did rise to

26   the level of "unusual or outstanding equities."        Id. at 3.   The

                                       -7-
1    BIA further noted that Noble had "expressed sincere remorse for

2    his past conduct and . . . testified honestly about that conduct

3    in open court," thereby adhering to the IJ's credibility

4    determination.     Id.

5                On the issue of rehabilitation, however, the BIA

6    observed:

 7               [R]emorsefulness is not the same as
 8               rehabilitation. The fact that the respondent
 9               has continued to commit crimes after the
10               commencement of these proceedings and after
11               receiving explicit warnings from the [IJ]
12               about the potential consequences of such
13               conduct frankly leaves us with very serious
14               doubts as to the authenticity of [Noble's]
15               rehabilitation.

16   Id.   After "balancing the various factors in [Noble's] case,"

17   including "unusual or outstanding" equities in his favor,

18   "against the adverse factor of his very serious criminal history

19   and [the agency's] reservations as to his rehabilitation," the

20   BIA concluded that it was "constrained to find that a favorable

21   exercise of discretion would not be in the best interests of the

22   United States."     Id.   The BIA therefore vacated the IJ's decision

23   in relevant part and denied the section 212(c) waiver.

24               Noble petitions for review.

25                                DISCUSSION

26               I.   Jurisdiction

27               At least in the absence of constitutional or legal

28   issues, we do not have jurisdiction to review final orders of

29   removal against aliens deemed by the BIA to be removable because

30   they were convicted of a specified criminal offense, including,

                                        -8-
1    inter alia, an aggravated felony or controlled substance

2    violation.   See 8 U.S.C. § 1252(a)(2)(C) (precluding jurisdiction

3    where alien is removed after violating 8 U.S.C.

4    § 1227(a)(2)(A)(iii) (aggravated felony) or § 1227(a)(2)(B)

5    (controlled substance offense)).    We also lack jurisdiction to

6    review purely discretionary decisions.     See 8 U.S.C.

7    § 1252(a)(2)(B)(ii).    Section 106 of the REAL ID Act of 2005,

8    however, restored our jurisdiction over "constitutional claims or

9    questions of law."     18 U.S.C. § 1252(a)(2)(D); see Xiao Ji Chen

10   v. Dep't of Justice, 471 F.3d 315, 324 (2d Cir. 2006).

11              II.   The BIA's Review of the IJ's Decision

12              The government seeks dismissal of the petition because,

13   it contends, we do not have jurisdiction to review the BIA's

14   discretionary decision denying a section 212(c) waiver of

15   inadmissibility.    The petitioner does not assert that we have

16   jurisdiction to review the BIA's ultimate conclusion to deny his

17   application, nor could he successfully do so.     See

18   Avendano-Espejo v. Dep't of Homeland Security, 448 F.3d 503, 504

19   (2d Cir. 2006) (per curiam).    Instead, he contends that the BIA

20   erred on the narrow ground that it improperly applied de novo

21   review to the IJ's rehabilitation determination, contrary to

22   agency regulations that require clear error review for findings

23   of fact.   See 8 C.F.R. § 1003.1(d)(3)(i).

24              As a Court of Appeals, we operate under the familiar

25   rule that when a district court makes a finding of fact or

26   exercises discretion conferred upon it, we must routinely defer

                                       -9-
1    to the district court in these matters on appeal.    We will

2    overturn a district court's finding of fact only if it is

3    "clearly erroneous" and its exercise of discretion only if the

4    discretion has been "abused."   See, e.g., United States v.

5    Agudelo, 414 F.3d 345, 348 (2d Cir. 2005) (findings of fact);

6    United States v. Rigas, 490 F.3d 208, 238 (2d Cir. 2007)

7    (exercise of discretion).   By contrast, while the scope of the

8    BIA's review of findings of fact on appeal from a ruling of an IJ

9    is similar to ours when reviewing factual findings of a district

10   judge, the BIA's standard of review of discretionary decisions by

11   an IJ is quite different from ours:

12             (i) . . . Facts determined by the immigration
13             judge including findings as to credibility of
14             testimony, shall be reviewed only to determine
15             whether the findings of the immigration judge are
16             clearly erroneous.

17             (ii) The Board may review questions of law,
18             discretion, and judgment and all other issues in
19             appeals from decisions of immigration judges de
20             novo.

21   8 C.F.R. §§ 1003.1(d)(3)(i)&(ii) (emphasis added).    The

22   discretionary portion of an IJ's decision is thus reviewed by the

23   BIA as though it were deciding the issue in the first instance.

24             Noble argues that the BIA erred as a matter of law by

25   applying de novo review under subsection (ii) to overturn the

26   IJ's finding of fact that Noble had been rehabilitated.     Because

27   it was a finding of fact, Noble contends, the BIA could do so

28   properly therefore only under subsection (i) and only if it

29   concluded that the finding was clearly erroneous.    Noble frames

30   his argument as a constitutional claim of a violation of his due
                                    -10-
1    process rights.   Pet. Br. at 15.   To determine whether we have

2    jurisdiction, however, we must "study the arguments

3    asserted . . . [and] determine, regardless of the rhetoric

4    employed in the petition, whether it merely quarrels over the

5    correctness of the factual findings or justification for the

6    discretionary choices" made by the BIA.    Xiao Ji Chen, 471 F.3d

7    at 329.   Although the question of the BIA's proper standard of

8    review does not raise a constitutional issue, Noble's argument is

9    best interpreted to assert that we have jurisdiction because he

10   raises a question of law -- the application by the BIA of a

11   legally erroneous standard of review.     See Khan v. Gonzales, 495

12   F.3d 31, 35 (2d Cir. 2007) ("[E]ven when the petitioner fails to

13   invoke the rhetoric of 'a constitutional claim' or 'question of

14   law,' our analysis of a petitioner's arguments may reveal that

15   they do in fact raise reviewable issues.").    Although in some

16   circumstances we do have jurisdiction to review such claims, see

17   Barco-Sandoval v. Gonzales, 496 F.3d 132, 135 n.5 (2d Cir. 2007);

18   Khan, 495 F.3d at 34, here, no matter how it is framed, Noble's

19   argument mischaracterizes the nature of the agency's decision.

20   The BIA's conclusion regarding Noble's section 212(c) application

21   was discretionary and, therefore, beyond our jurisdiction.

22              The IJ, in her decision, referred to "evidence of

23   rehabilitation," IJ Decision at 9, and commented on Noble's

24   "willingness to continue his progress toward a drug-free and

25   crime-free lifestyle." Id. at 8.    The IJ concluded that [Noble]

26   ha[d] finally demonstrated good efforts at rehabilitation."       Id.

                                    -11-
1                The role of the BIA was to consider Noble's

2    rehabilitation, which the IJ had examined, and weigh it with and

3    against other relevant factors3 in order to render an informed

4    discretionary decision as to whether Noble should be permitted to

5    stay.    See Restrepo v. McElroy, 369 F.3d 627, 634 (2d Cir. 2004)

6    ("In evaluating a section 212(c) application, an immigration

7    judge must balance the adverse factors evidencing an alien's

8    undesirability as a permanent resident with the social and humane

9    considerations presented in his behalf.") (internal quotation

10   marks and citation omitted).    It did just that.   It concluded,

11   "[W]hen we weigh the[] [favorable] equities against the adverse

12   factor of his very serious criminal history and our reservations

13   as to his rehabilitation we are constrained to find that a

14   favorable exercise of discretion would not be in the best

15   interests of the United States."    BIA Opinion at 3.     To be sure,



          3

                 Favorable considerations have been found to
                 include such factors as 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).

     Matter of Marin, 16 I. & N. Dec. 581, 584-585 (BIA 1978).
                                    -12-
1    the BIA also expressed its view that "[t]he fact that the

2    respondent has continued to commit crimes after the commencement

3    of these proceedings and after receiving explicit warnings from

4    the Immigration Judge about the potential consequences of such

5    conduct frankly leaves us with very serious doubts as to the

6    authenticity of the respondent's rehabilitation."     Id.    But the

7    BIA made this observation while addressing "the sole question on

8    appeal" -- "whether [Noble] merits section 212(c) relief in the

9    exercise of discretion . . . ."    Id. at 1.   It was thus

10   exercising its discretion by balancing the equities, including

11   rehabilitation, which, at least in this case, we do not have the

12   power to review.

13             In Wallace v. Gonzales, 463 F.3d 135 (2d Cir. 2006)

14   (per curiam), we addressed an argument similar to that which

15   Noble makes here.    There, the IJ had granted the applicant's

16   petition under 8 U.S.C. § 1255, which allows the status of aliens

17   meeting certain criteria to "be adjusted by the Attorney General,

18   in his discretion and under such regulations as he may prescribe,

19   to that of an alien lawfully admitted for permanent residence."

20   Id. § 1255(a).   After balancing the equities, the BIA overturned

21   the IJ's decision that the waiver should be granted.        Wallace,

22   463 F.3d at 137.    The Board concluded that the IJ "erred in

23   finding adequate evidence of rehabilitation which would outweigh

24   the negative criminal history," id., because "although 'the

25   evidence does suggest that [Wallace] has attempted to

26   rehabilitate himself while incarcerated, we cannot find that this

                                     -13-
1    outweighs the seriousness of his conviction for robbery and other

2    indications of criminal activity.'" Id. at 137-38 (quoting the

3    BIA's opinion in Wallace).      Wallace argued on appeal "that the

4    BIA exceeded its authority under federal regulations when it

5    rejected the IJ's finding that Wallace had demonstrated

6    rehabilitation."      Id. at 138.

7              We declined to consider Wallace's "argu[ment] that the

8    BIA violated 8 C.F.R. § 1003.1(d)(3)[(i)] when it reversed the

9    IJ's conclusion that Wallace merited an adjustment of status

10   because the factual findings of an IJ may be reversed only when

11   the Board deems them 'clearly erroneous.'"          Id. at 140.    "The BIA

12   did not reject any factual determination of the IJ with respect

13   to Wallace's 'rehabilitation.'"       Id. at 141.    Instead, we

14   concluded, the BIA had merely "recounted the IJ's findings and

15   concluded that the IJ incorrectly exercised his discretion in

16   granting Wallace an adjustment of status."          Id.   In doing so, we

17   noted that "[a]lthough any reversal by the BIA of an IJ's

18   discretionary determination must involve consideration of the

19   underlying facts, a review of the factual record by the BIA does

20   not convert its discretionary determination as to whether a

21   petitioner warrants an adjustment of status into improper

22   factfinding."   Id.

23             We do not discount the possibility, of course, that in

24   another case, the BIA's declining properly to defer to factual

25   findings by the IJ regarding rehabilitation as required by

26   section 1003.1(d)(3)(i) will amount to an error of law.           But

                                         -14-
1    here, we think, as in Wallace, the BIA was engaging in a

2    recalculation of the equities in declining to grant a

3    discretionary waiver of removal despite the IJ's conclusion to

4    the contrary.   In the course of explaining its exercise of that

5    discretion, it noted the nature and extent of Noble's

6    rehabilitation and recorded its view that it had "reservations,"

7    i.e., "very serious doubts" about it.   BIA Decision at 3.   It

8    would have made our review easier had the BIA said that it had

9    "reservations as to the extent of his rehabilitation" rather than

10   "reservations as to his rehabilitation," id., and to have

11   observed, "frankly," that it was left "with very serious doubts

12   as to the degree of [Noble's] rehabilitation" rather than as to

13   its "authenticity."   Read in the context of the rest of the BIA's

14   opinion, however, it becomes clear that these comments were part

15   of the process by which the BIA made a judgment as to whether, in

16   light of Noble's rehabilitation, among other things, the Attorney

17   General's discretion ought to be exercised in his favor.

18             In its analysis, the BIA agreed with the IJ that Noble

19   had demonstrated unusual or outstanding equities, and further

20   adhered to the IJ's credibility determination, particularly as it

21   pertained to Noble's expression of remorse.   But unlike the IJ,

22   the BIA did not think that Noble's positive equities, in

23   conjunction with any "evidence of rehabilitation," IJ Decision at

24   9, sufficiently outweighed the seriousness of his criminal

25   history to warrant the exercise of its favorable discretion.      We

26   have no authority to review that discretionary determination.

                                    -15-
1                    CONCLUSION

2   For the foregoing reasons, the petition is dismissed.




                        -16-
