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


4-25-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3000




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                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 07-3000


                           DAVID LAWRENCE GREENE,
                                          Petitioner

                                           v.

                ATTORNEY GENERAL OF THE UNITED STATES,
                                        Respondent


                      On Petition for Review of an Order of the
                           Board of Immigration Appeals
                             (Agency No. A21-177-195)
                    Immigration Judge: Honorable Annie S. Garcy


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

              Before: BARRY, SMITH and HARDIMAN, Circuit Judges

                            (Opinion filed: April 25, 2008)
                                    ___________

                                      OPINION
                                     ___________

PER CURIAM

      David Lawrence Greene, a native and citizen of Mexico, seeks review of an order

of the Board of Immigration Appeals (“BIA”) sustaining the government’s appeal of an

Immigration Judge’s (“IJ”) decision which had granted Greene’s application for
cancellation of removal. We will deny the petition for review.

       Greene was adopted by United States citizen parents and admitted to this country

in August 1977, when he was 2 months old. In 2003, he was convicted in New Jersey

state court of endangering the welfare of a child. The next year, he was convicted of the

same charge in New York state court. The Department of Homeland Security (“DHS”)

charged Greene with being removable pursuant to Immigration and Nationality Act

(“INA”) § 237(a)(2)(A)(ii) [8 U.S.C. § 1227(a)(2)(A)(ii)], as an alien who has been

convicted of two moral turpitude crimes not arising out of a single scheme of criminal

misconduct. Greene conceded the charge of removability and applied for cancellation of

removal under INA § 240A(a) [8 U.S.C. § 1229b(a)].1

       The IJ concluded that Greene was statutorily eligible for cancellation and granted

the application as a matter of discretion, holding that the positive aspects of his case

outweighed the negative factors. The DHS appealed the decision to the BIA, which

sustained the appeal, vacated the IJ’s decision, and ordered Greene removed to Mexico.

The Board concluded that Greene had not successfully demonstrated that the factors


   1
     Under this provision, the Attorney General may, in his discretion, cancel the removal
of an alien who (1) has been lawfully admitted for permanent residence for not less than
five years, (2) has continuously resided in the United States in any status for seven years,
and (3) has not been convicted of an aggravated felony. Once these requirements are met,
the IJ must review the record as a whole, and “balance the adverse factors evidencing the
alien’s undesirability as a permanent resident with the social and humane considerations
presented in his (or her) behalf to determine whether the granting of . . . relief appears in
the best interest of this country.” Matter of C-V-T, 22 I & N Dec. 7, 11 (BIA 1998).
(internal quotations omitted).

                                              2
favorable to a discretionary grant of relief outweighed his “serious criminal activity.”

Greene filed a petition for review.

        The government argues that we lack jurisdiction to hear Greene’s claims because

he is a criminal alien who seeks review of an order denying cancellation of removal in the

exercise of discretion. Indeed, we generally do not have jurisdiction to review final

orders of removal against aliens, like Greene, who are deemed removable because they

were convicted of, inter alia, two crimes involving moral turpitude. See INA

§ 242(a)(2)(C) [8 U.S.C. § 1252(a)(2)(C)] (precluding jurisdiction where alien removable

pursuant to INA § 237(a)(2)(A)(ii) [8 U.S.C. § 1227(a)(2)(A)(ii)]). In addition, we lack

jurisdiction to review purely discretionary decisions, see INA § 242(a)(2)(B)(ii) [8 U.S.C.

§ 1252(a)(2)(B)(ii)], such as the “manner in which the BIA balanced the various positive

and negative factors which typically inform the exercise of its discretion under” INA

§ 240A [1229b(a)]. Cruz-Camey v. Gonzales, 504 F.3d 28, 29 (1st Cir. 2007). Despite

these jurisdiction-stripping provisions, we may review “constitutional claims or questions

of law” raised in a petition for review. 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 U.S. 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



                                              3
erroneous standard”).

       In the present case, Greene argues that the BIA improperly engaged in its own

independent factfinding, and failed to defer to the IJ’s factual findings and review them

for clear error. See 8 C.F.R. §§ 1003.1(d)(3)(I) and (iv). In addition, Greene complains

that the BIA ignored uncontested expert testimony concerning the likelihood that he

would re-offend. To the extent that these allegations raise questions of law, we have

jurisdiction. See Wood v. Mukasey, 516 F.3d 564, 568 (7 th Cir. 2008) (holding allegation

that BIA exceeded its appellate-review authority presented a legal question). We

conclude, however, that Greene’s claims are without merit.

       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). The BIA’s decision

that Greene did not qualify for cancellation was based on his failure to show “sufficient

rehabilitation.” As support for this conclusion, the BIA cited Greene’s “recent

convict[ions] within the span of 6 months for conduct involving extensive sexual contact

with minors,” his “admission to engaging in inappropriate and uncontrollable sexual

activity” with numerous “inappropriate partners,” and his solicitation of a 13 year-old

while awaiting sentencing for his first conviction. Importantly, these are not facts that the

BIA independently found or which ran contrary to the IJ’s findings. Rather, they were all

clearly set forth on the record in the IJ’s decision. The BIA simply deferred to the IJ’s



                                              4
factual determinations, including those favorable to Greene, and, after weighing the

evidence, concluded that Greene did not warrant cancellation of removal. See 8 C.F.R.

§ 1003.1(d)(3)(ii) (stating that the “Board may review questions of law, discretion, and

judgment and all other issues in appeals from decisions of [IJs] de novo.”). This analysis

fully comports with the BIA regulations.2 See Wallace v. Gonzales, 463 F.3d 135, 141

(2d Cir. 2006) (“Although any reversal by the BIA of an IJ’s discretionary determination

must involve consideration of the underlying facts, a review of the factual record by the

BIA does not convert its discretionary determination as to whether a petitioner warrants

[relief] into improper factfinding.”).

       For the foregoing reasons, we will deny the petition for review.




   2
     We note that Greene strenuously argues that the BIA ignored uncontested expert
testimony concerning the likelihood that he would re-offend. Review of this claim, along
with any direct challenge to the BIA’s discretionary decision, is outside our jurisdiction
and will be dismissed. See Jarbough v. Attorney General, 483 F.3d 184, 189 (3d Cir.
2007) (holding that “arguments such as that an Immigration Judge . . . failed to consider
evidence . . . are not questions of law under § 1252(a)(2)(D).”); Xiao Ji Chen v. U.S.
Dep’t of Justice, 471 F.3d 315, 329-30 (2d Cir. 2006) (stating that judicial review may not
be secured “by using the rhetoric of a ‘constitutional claim’ or ‘question of law’ to
disguise what is essentially a quarrel about fact-finding or the exercise of discretion.”).
                                            5
