                                                            NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               _____________

                                   No. 10-1269
                                  _____________

                           MOHAMMED A. HOSSAIN,
                             a/k/a Mozzam Hossain,
                               a/k/a Sarif Samim,

                                               Petitioner

                                         v.

                ATTORNEY GENERAL OF THE UNITED STATES,

                                              Respondent

                  On Petition for Review of a Decision and Order of
                         the Board of Immigration Appeals
                              (BIA No. A090-654-882)
                   Immigration Judge: Honorable Walter Durling

                              Submitted June 21, 2011

      Before: CHAGARES, JORDAN and GREENAWAY, JR., Circuit Judges.

                                (Filed June 27, 2011)
                                   ____________

                                    OPINION
                                  ____________

CHAGARES, Circuit Judge.

      Mohammed Hossain petitions for review of a decision by the Board of

Immigration Appeals (“BIA”) denying him cancellation of removal and ordering him
removed from the United States. We lack jurisdiction to consider Hossain’s challenge to

the BIA’s discretionary decision and will, therefore, dismiss the petition.

                                             I.

       Because we write solely for the benefit of the parties, we will only briefly recite

the essential facts. Hossain, a forty-five year old native and citizen of Bangladesh,

entered the United States on an F-1 nonimmigrant student visa in 1986 and was granted

legal permanent residence approximately four years later. On February 27, 2009,

Hossain was issued a Notice to Appear and charged with removability, pursuant to 8

U.S.C. § 1227(a)(2)(C), as an alien convicted of a firearm-related offense after

admission. At his removal proceedings Hossain conceded that he was removable as

charged, but sought cancellation of removal under 8 U.S.C. § 1229b(a).1 The

Immigration Judge (“IJ”) exercised his discretion and granted the relief sought.

       In reaching this discretionary determination, the IJ noted the following equities

weighing in Hossain’s favor: Hossain “for all accounts, on the one hand, has been rather

successful in the United States.” Appendix (“App.”) 6. He has paid all of his taxes since

1988 and has been gainfully employed for most of that time, working as an agricultural

worker, taxi driver, real estate agent, construction worker, and, most recently, aspiring

entrepreneur. Hossain has an eighteen-year-old son and a fifteen-year-old daughter, both

1
 Section 1229b(a) provides that the Attorney General may cancel the removal of an alien
who is inadmissible or deportable if the alien:
       (1) has been an alien lawfully admitted for permanent residence for
       not less than 5 years,
       (2) has resided in the United States continuously for 7 years after
       having been admitted in any status, and
       (3) has not been convicted of any aggravated felony.
                                             2
of whom reside in and are citizens of the United States. He pays child support for the

care of his minor daughter and he sees his children as often as he is able. He has a loving

relationship with his children and would like to remain in the United States in order to be

a father to them. Hossain also has a fiancé, who lives in the United States and whom he

plans to marry here. Additionally, his mother is a legal permanent resident of the United

States, spending several months each year here, and two of his sisters reside permanently

in this country.

       The IJ also noted a number of adverse factors, which weighed against a favorable

exercise of discretion. Most importantly, the IJ recognized that Hossain “is in the United

States Immigration Court [] because of his criminal record.” App. 7. Hossain’s criminal

record begins with a 1995 conviction for criminal possession of a weapon, the offense for

which he was charged with removability. He also has four convictions for driving under

the influence of alcohol — two in 1995, one in 1998, and one in 2000. For at least two of

these alcohol-related offenses, Hossain was not driving a vehicle but was nevertheless

charged appropriately under New York law. Hossain also has three convictions, which

the IJ characterized as “de minimus,” for marijuana possession. Hossain was not

sentenced to jail for any of these drug offenses and the latter two were conditionally

discharged after he pleaded guilty.2

       Finally, Hossain’s criminal record includes an arrest for assault following an

incident of domestic violence with his fiancé that occurred in February 2009. Hossain

2
 Hossain represented that he has not consumed alcohol since 2000 and that he stopped
using marijuana, which he took to control pain, in 2007 and “is now under the care of a
physician for pain management.” App. 8.
                                             3
and his fiancé initially offered inconsistent testimony regarding this incident. The IJ was

particularly concerned by the fact that Hossain “tried to convince the Court that [the

assault] was just totally inadvertent and innocent injury where it really was not.” App.

10. After the IJ admonished Hossain that “it is important to come to the Court with clean

hands [and] to own up to all failures that an individual causes himself” when seeking

discretionary relief, App. 10, Hossain admitted that he pushed his fiancé into a piece of

furniture, causing her to sustain an injury for which she received treatment at the hospital.

The assault charges were subsequently dropped because Hossain’s fiancé decided not to

pursue the complaint that she filed with the police. She testified at the removal

proceedings that she loved Hossain, did not fear him at all, and looked forward to

marrying him.

       In deciding to grant Hossain cancellation of removal, the IJ “fully consider[ed] all

of the evidence of record, both pro and con” and determined that “the pro probably eeks

past the con” because “the positive equities outweigh the criminal record in this case.”

App. 12. The IJ highlighted that Hossain “acquitted himself rather well in relation to

trying to achieve the American dream[,]” App. 11, and “has done a lot more than most

people coming into the court . . . . He is a successful real estate agent, he received awards

for it, he owns real estate in Philadelphia, he has spent a lot of money to open a restaurant

in the Atlantic City area, he has 20 employees waiting to go back to work if he gets out.”

Id.

       As for Hossain’s apparent substance abuse, the IJ accepted Hossain’s

representations of continuing sobriety and determined that Hossain had shown clear

                                              4
rehabilitation. The IJ stated that Hossain’s “latest conviction is three years ago, the latest

DUI is nine years ago.” App. 12. And though “[g]overnment counsel’s observations are

certainly worthy of consideration and [] are not wholly unreasonable, [] the Court

believes or wants to believe that the respondent has truly reformed himself.” App. 12.

Accordingly, on balance, the IJ concluded that Hossain warranted cancellation of

removal, as a matter of discretion, to “giv[e] him the one last chance to completely

reform himself or redeem himself in the United States society.” App. 12.

       The Government appealed the IJ’s decision, arguing that the IJ failed to analyze

and weigh properly the positive and negative factors in this case. The BIA sustained the

Government’s appeal, concluding that the circumstances presented by Hossain’s case did

not in fact warrant a favorable exercise of the agency’s discretion. Specifically, the BIA

was convinced that, although Hossain indeed had significant equities weighing in his

favor, the weight of the adverse factors — namely, his extensive criminal record —

precluded it from finding that it would be in the best interest of the United States to grant

Hossain discretionary cancellation of removal. Hossain filed a timely petition for review.

                                              II.

       “Relief in the form of cancellation of removal is within the discretion of the

Attorney General[.]” Mendez-Reyes v. Att’y Gen., 428 F.3d 187, 189 (3d Cir. 2005).

This Court generally lacks jurisdiction to review such discretionary decisions. Id.

(citing 8 U.S.C. § 1252(a)(2)(B)(i)). We retain only “narrowly circumscribed”

jurisdiction to review “colorable [constitutional] claims or questions of law” raised upon



                                              5
a petition for review of the BIA’s decision regarding cancellation of removal. Pareja v.

Att’y Gen., 615 F.3d 180, 186 (3d Cir. 2010).

       Hossain asserts that we may exercise jurisdiction over his petition because he has

raised a colorable question of law: whether the BIA conformed with its own regulations

mandating that it defer to the factual findings of the IJ, unless they are clearly erroneous,

and that it refrain from engaging in independent factfinding. 3 See 8 C.F.R. §

1003.1(d)(3)(i), (iv). We agree that a colorable claim that the BIA applied an improper

standard of review would present a legal question subject to our review. Nonetheless, we

are without jurisdiction to review the merits of Hossain’s petition because he has pointed

to little of substance which would indicate that the BIA may have failed to conform with

the requirements of 8 C.F.R. § 1003.1(d)(3)(i), (iv). A comparison of the two opinions

makes clear that the BIA did not, as Hossain contends, contradict or disturb the IJ’s

factual findings. Rather, the BIA balanced the equities and adverse factors and

determined that, despite the IJ’s conclusion to the contrary, the weight of the adverse

factors precluded a favorable exercise of discretion. And, notably, Hossain readily

concedes, as he must, that “the BIA has discretion to balance the equities and negatives in

a different manner than an IJ[.]” Hossain’s Reply Br. 4-5.

       In short, although Hossain asserts that he is challenging the BIA’s misapplication

of a legal standard, in essence, his claim is only that the BIA insufficiently valued those

3
 We summarily dispose of Hossain’s claim that the BIA violated his right to due process
by “fail[ing] to act as a neutral fact finder and instead adopt[ing] the DHS brief,”
Hossain’s Br. 21, because “an alien seeking discretionary relief from removal has no
cognizable liberty or property interest.” Jean-Louis v. Att’y Gen., 582 F.3d 462, 465 n.4
(3d Cir. 2009).
                                              6
equities upon which the IJ relied in finding that relief was warranted. See, e.g.,

Hossain’s Br. 18 (“The equities were substantial in Mr. Hossain’s case and

inappropriately downplayed by the BIA and the DHS.”). Hossain’s petition thus

challenges a discretionary determination and we are without jurisdiction to consider it.

See Pareja, 615 F.3d at 187 (“If a claim is frivolous. . . we lack jurisdiction to review it,

no matter its label. . . . In other words, a party may not dress up a claim with legal

clothing to invoke this Court’s jurisdiction.”).

                                              III.

       For the foregoing reasons, we will dismiss the petition.




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