                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 12-1680


MANUEL COREAS,

                 Petitioner,

           v.

ERIC H. HOLDER, JR., Attorney General,

                 Respondent.



On Petition for Review of an Order of the Board of Immigration
Appeals.


Argued:   March 21, 2013                     Decided:   June 6, 2013


Before AGEE, KEENAN, and FLOYD, Circuit Judges.


Petition dismissed in part and denied in part by unpublished per
curiam opinion.


ARGUED: Manuel Rivera, Jr., LAW OFFICE OF MANUEL RIVERA, ESQ.,
Arlington, Virginia, for Petitioner.      Bernard Arthur Joseph,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent.    ON BRIEF: Stuart F. Delery, Acting Assistant
Attorney General, Civil Division, Ernesto H. Molina, Jr.,
Assistant Director, Office of Immigration Litigation, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     Petitioner Manuel Coreas, a citizen of El Salvador, has

lived in the United States since November 1994.                       His status was

adjusted to that of a lawful permanent resident on January 7,

1998.       Based on his April 2001 conviction in Virginia state

court for petit larceny, however, the Department of Homeland

Security      (DHS)     initiated     removal        proceedings       against        him.

Coreas   subsequently        filed   an   application          for   cancellation        of

removal,     which     the   immigration       judge    (IJ)    granted.        The     DHS

appealed the IJ’s decision to the Board of Immigration Appeals

(BIA).      The BIA sustained the DHS’s appeal, vacated the IJ’s

decision, and ordered that Coreas be removed to El Salvador.

Thereafter, Coreas filed a petition for review with this Court.

For the reasons that follow, we dismiss in part and deny in part

Coreas’s petition.



                                          I.

     There is no dispute that Coreas committed a crime of moral

turpitude.        On   April   26,    2001,     he     was   convicted     in    Loudoun

County      General    District      Court     of    petit      larceny,     which      he

committed on or about January 7, 2001.                         For that offense, a

sentence of one year may be imposed.                     See Va. Code § 18.2-96

(stating that the crime of petit larceny “shall be punishable as

a   Class     1   misdemeanor”);       Id.     §     18.2-11(a)      (“For      Class     1

                                               2
misdemeanors,      confinement         in       jail   for     not    more   than    twelve

months and a fine of not more than $2,500, either or both.”).

        Afterwards, with the issuance and service of a notice to

appear by    a     DHS   group    supervisor,          the     DHS    commenced     removal

proceedings against Coreas under 8 U.S.C. § 1227(a)(2)(A)(i),

which    allows     removal      when       a    lawful      permanent       resident     is

convicted within five years after admission of a crime involving

moral turpitude for which a sentence of one year or longer may

be   imposed.        Coreas      subsequently          filed     an    application        for

cancellation of removal for permanent residents, pursuant to 8

U.S.C. § 1229b(a), which the IJ granted.                        The DHS then filed a

Notice of Appeal (NOA) with the BIA.                     The BIA thereafter vacated

the IJ’s decision and ordered that Coreas be removed.                                Coreas

then filed his petition for review with this Court.



                                             II.

        Coreas argues that we should reverse the BIA’s decision

vacating     the    IJ’s       order    cancelling           his      removal      because,

according    to    Coreas,     the     BIA      failed    to    consider     all     of   the

required    factors      and    the    BIA       improperly      engaged     in     its   own

factfinding.       But before we can consider these claims, we must

first determine whether we have jurisdiction to do so.                             “Federal

appellate courts determine de novo whether they have subject



                                                   3
matter jurisdiction to decide a case.”                      Kporlor v. Holder, 597

F.3d 222, 225 (4th Cir. 2010).

     According      to   8   U.S.C.       §    1252(a)(2)(B)-(i),       “[n]o      court

shall have jurisdiction to review any judgment regarding the

granting of relief under . . . 1229b,” the section regarding

cancellation of removal.            However, the statute goes on to make

clear that the courts of appeals retain jurisdiction to review

constitutional       claims        and    questions         of   law.        See    id.

§ 1252(a)(2)(D) (“Nothing in subparagraph (B) . . . shall be

construed     as    precluding      review       of    constitutional    claims      or

questions of law raised upon a petition for review filed with an

appropriate court of appeals in accordance with this section.”).

     Coreas    attempts       to    get       past    the   jurisdictional    bar    by

arguing that the BIA “failed to consider all of the factors

required by law in determining an application for cancellation

of removal.”       Positive factors include:

          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).




                                                 4
Matter of Marin, 16 I. & N. Dec. 581, 584-85 (1978), abrogated

on other grounds by Matter of Edwards, 20 I. & N. Dec. 191

(1990).      Adverse   factors,     on   the   other    hand,    involve      such

matters as

           the nature and underlying circumstances of the
      exclusion ground at issue, the presence of additional
      significant violations of this country’s immigration
      laws, the existence of a criminal record and, if so,
      its nature, recency, and seriousness, and the presence
      of other evidence indicative of a respondent’s bad
      character or undesirability as a permanent resident of
      this country.

Id. at 584.      Contrary to Coreas’s suggestion, however,               “Marin

does not . . . purport to require consideration of all of the

factors enumerated; it merely recites a nonexhaustive list of

factors that in prior cases had been considered to be either

‘favorable’ or ‘adverse.’”          Casalena v. INS, 984 F.2d 105, 107

n.5 (4th Cir. 1993).

      Nevertheless, from our review of the record, it appears

that the BIA carefully considered most of the factors listed

above.      As to the positive factors, it specifically discussed

Coreas’s extensive family ties to the United States, his good

work history, that his earnings are important to his family, and

that he would have difficulty finding employment in El Salvador.

The   BIA    also   noted    that   Coreas’s     siblings       are   currently

providing     financial     assistance   to    his     family    while   he    is

incarcerated, but they will be unable to do so indefinitely.                   It


                                          5
further recognized that Coreas has been in the United States

since the age of fourteen, that hardship would ensue with his

removal, and that he has paid his taxes and mortgage over a

period of years.

        Concerning      the    adverse    factors,         the    BIA     observed      that

Coreas     has    an     extensive    criminal          history,        including      petit

larceny,     public       intoxication       or      swearing,      driving         with    a

suspended license, driving while intoxicated, and driving under

the influence.           The BIA also noted that the IJ had properly

found that Coreas had failed to demonstrate that he had been

rehabilitated      as     to   his   abuse      of   alcohol       or    his    record      of

driving while intoxicated.

        Simply   put,     although    Coreas        may    be    displeased      with      the

weight that the BIA gave to the positive factors it considered,

we are unable to say that it failed to appropriately consider

them.    Thus, we find no error of law.

     Coreas       also    contends       that     the      BIA    violated      8    C.F.R.

§ 1003.1(d)(3)(i)          and    (iv)     when       it    engaged        in    its       own

factfinding, in lieu of deferring to the factfinding that the IJ

conducted.       Pursuant to 8 C.F.R. § 1003.1(d)(3)(i) and (iv),

    (i) The Board will not engage in de novo review of
    findings of fact determined by an immigration judge.
    Facts determined by the immigration judge, including
    findings as to the credibility of testimony, shall be
    reviewed only to determine whether the findings of the
    immigration judge are clearly erroneous.


                                                6
             . . .

     (iv) Except for taking administrative notice of
     commonly known facts such as current events or the
     contents of official documents, the Board will not
     engage in factfinding in the course of deciding
     appeals.    A party asserting that the Board cannot
     properly resolve an appeal without further factfinding
     must file a motion for remand. If further factfinding
     is needed in a particular case, the Board may remand
     the proceeding to the immigration judge or, as
     appropriate, to the Service.

     Our review of the record, however, convinces us that the

BIA did not tamper with the IJ’s factual findings.                    Instead,

conducting a de novo review of the IJ’s discretion, the BIA held

that the IJ erred.      See 8 C.F.R. § 1003.1(d)(3)(ii) (“The Board

may review questions of law, discretion, and judgment and all

other issues in appeals from decisions of immigration judges de

novo.”).     Thus, there is no error of law.

     Because the BIA committed neither error of law that Coreas

alleges, we lack jurisdiction to review the BIA’s discretionary

decision to vacate the IJ’s order.             Thus, we will dismiss this

portion of the petition.



                                   III.

     Next,    Coreas   claims   that   we     ought   to   reverse   the   BIA’s

decision because his notice to appear was issued by one who is

not authorized to do so: a group supervisor.                  The government




                                          7
concedes that this is a legal issue, which we have jurisdiction

to adjudicate.

     The Code of Federal Regulations provides, in relevant part,

the following:

          Any immigration officer, or supervisor thereof,
     performing an inspection of an arriving alien at a
     port-of-entry may issue a notice to appear to such
     alien.   In  addition, the   following officers,  or
     officers acting in such capacity, may issue a notice
     to appear:

          . . .

          (8)     Field operations supervisors;
          (9)     Special operations supervisors;
          (10)    Supervisory border patrol agents;

          . . .

          (14)    Supervisory      district        adjudications
     officers;
          (15)    Supervisory asylum officers;

          . . .

          (23)    Supervisory special agents;

          . . .

          (30)    Supervisory deportation officers;
          (31)    Supervisory   detention    and   deportation
     officers;

          . . .

          (38)    Supervisory   service   center   adjudications
     officers;

          . . .

          (41) Other   officers  or   employees  of   the
     Department or of the United States who are delegated


                                     8
      the authority as provided by 8 C.F.R. [§] 2.1 to issue
      notices to appear.

8 C.F.R. § 239.1(a).         Further, pursuant to 8 C.F.R. § 2.1,

           All authorities and functions of the Department
      of Homeland Security to administer and enforce the
      immigration laws are vested in the Secretary of
      Homeland Security. The Secretary of Homeland Security
      may, in the Secretary’s discretion, delegate any such
      authority or function to any official, officer, or
      employee of the Department of Homeland Security,
      including delegation through successive redelegation,
      or to any employee of the United States to the extent
      authorized by law.    Such delegation may be made by
      regulation, directive, memorandum, or other means as
      deemed appropriate by the Secretary in the exercise of
      the Secretary’s discretion. A delegation of authority
      or function may in the Secretary’s discretion be
      published   in   the   Federal  Register,   but   such
      publication is not required.

      The term “group supervisor” is not found in the 8 C.F.R.

§ 239.1(a)      list,    and    we    are     baffled       by   the   government’s

inability     to   define      exactly      what   a   “group      supervisor”     is,

although specifically questioned about it at oral argument.                        We

are   also    puzzled   that    it    was     unable   to    answer    how   the   DHS

delegated its authority such that a “group supervisor” could

serve the notice to appear on Coreas pursuant to 8 C.F.R. § 2.1.

Nevertheless, we are unable to say that the government’s failure

in    this    regard    is   enough      to    overcome      the   presumption     of

regularity that is attached to the DHS’s issuance of a notice to

appear.      See Almy v. Sebelius, 679 F.3d 297, 309 (4th Cir. 2012)

(“The presumption of regularity supports the official acts of

public officers, and, in the absence of clear evidence to the

                                               9
contrary,      courts       presume    that     they     have     properly       discharged

their official duties.” (quoting United States v. Chem. Found.,

272 U.S. 1, 14–15 (1926) (internal quotation marks omitted))).

       Moreover,      “an    alien     must    ‘establish         prejudice      .    .    .    to

invalidate      deportation          proceedings        on    a     claim     that        [his]

statutory or regulatory rights were infringed.’”                            Rusu v. INS,

296    F.3d    316,    320    (4th     Cir.    2002)     (alteration        in       original)

(quoting Garcia-Guzman v. Reno, 65 F. Supp. 2d 1077, 1085 (N.D.

Cal. 1999)).          “And we may only find prejudice ‘when the rights

of [an] alien have been transgressed in such a way as is likely

to    impact    the    results    of    the     proceedings.’”          Id.      at       320-21

(alteration in original) (quoting Jacinto v. INS, 208 F.3d 725,

728    (9th    Cir.    2000)).        Simply        stated,   Coreas    has      failed         to

establish such prejudice.

       Thus, because Coreas has failed either to marshal any clear

evidence to alter the presumption of regularity enjoyed by the

DHS in its issuance of the notice to appear, or to demonstrate

the    required       prejudice       discussed        above,      we   will     deny          his

petition as to this issue.



                                              IV.

       Finally, Coreas maintains that we should reverse the BIA’s

decision because of the DHS’s alleged failure to abide by the

applicable regulations in drafting its NOA to the BIA.                                         The

                                                 10
government agrees that this claim also involves a legal issue,

which we have jurisdiction to decide.

     As   is    relevant      to    Coreas’s        petition,     8    C.F.R.       §     1003.3

states,   “Where      the    appeal     concerns       discretionary             relief,     the

appellant      must   state        whether     the    alleged     error           relates    to

statutory      grounds       of     eligibility        or   to        the        exercise    of

discretion     and    must       identify     the    specific     factual          and    legal

finding or findings that are being challenged.”                         Id. § 1003.3(b).

Moreover,      8 C.F.R.      §     1003.1(d)(2)(i)-(A)           provides          that     “[a]

single Boardmember or panel may summarily dismiss any appeal or

portion   of    any    appeal      in   any    case    in   which:          (A)    The     party

concerned fails to specify the reasons for the appeal on Form

EOIR–26 or Form EOIR–29 (Notices of Appeal) or other document

filed therewith.”           There is also a warning on the BIA-provided

NOA, which declares:               “You must clearly explain the specific

facts   and    law    on    which    you     base    your   appeal          of    the     [IJ’s]

decision.       The [BIA] may summarily dismiss your appeal if it

cannot tell from this [NOA], or any statements attached to this

[NOA], why you are appealing.”

     The DHS’s NOA set forth only the following:

          The [IJ] erred in granting [Coreas’s] application
     for cancellation of removal for certain permanent
     residents under Section 240(A)(a) of the [Immigration
     and Nationality Act] because [Coreas] does not merit a
     favorable exercise of the court’s discretion.      The
     [DHS] also reserves the right to raise additional
     issues after reviewing the transcript.

                                                11
As such, there is no question that the DHS’s NOA failed to

follow either 8 C.F.R. § 1003.3, 8 C.F.R. § 1003.1(d)(2)(i)-(A),

or the warning on the NOA.          As noted by Coreas, the NOA

            (1) failed to identify the findings of fact and
       conclusions of law which [the] DHS was challenging,
       (2) failed to cite authority supporting [the] DHS’s
       appeal as to questions of law, (3) failed to identify
       the specific findings of fact which [the] DHS was
       contesting, and (4) failed to state whether the
       asserted error related to the statutory grounds of
       [Coreas’s] eligibility for cancellation of removal or
       to the exercise of discretion, and failed to identify
       the   specific  factual  and   legal  findings  being
       challenged.

For these reasons, the BIA could have properly dismissed the

appeal.      But, it did not.

       Coreas cites only to one case to support his proposition

that   the    DHS’s    NOA   was   legally      insufficient    to     support    its

appeal:      Rojas-Garcia v. Ashcroft, 339 F.3d 814 (9th Cir. 2003).

In Rojas-Garcia, the Ninth Circuit considered whether the BIA

properly dismissed an appeal.              Id. at 821 (“[W]e reject Rojas-

Garcia’s      argument    that     he   stated     grounds     for   appeal      with

sufficient particularity so as to avoid summary dismissal.”).

Here, however, we are called upon to decide whether it is proper

for us to disturb the BIA’s decision to consider the appeal.

For    the   reasons     that    follow,   we     will   not   upset    the   BIA’s

decision.




                                             12
      First,   “[t]he        requirement          of   specificity        is     not

jurisdictional.”      Pasha v. Gonzales, 433 F.3d 530, 532 (7th Cir.

2005).     Hence, the BIA had the discretion to “choose between

dismissing the appeal for failure to comply with the requirement

of specificity . . . and proceeding to the merits.”                  Id. at 533.

We find no reversible error in its choosing the latter of these

options.

      Second, both 8 C.F.R. § 1003.1(d)(2)(i)(A) and the warning

on the NOA state that the BIA “may summarily dismiss” an appeal

when the NOA lacks specificity as to the reason for the appeal.

Notably, neither one states that it “shall,” “will,” or “must”

summarily   dismiss    the    appeal.        In    other   words,   the    BIA   is

permitted to dismiss the appeal, but it is not mandated to do

so.

      Coreas has pointed to no compelling reason as to how the

BIA erred in considering the DHS’s appeal in this matter, and we

have been unable to uncover any.             As such, we will deny Coreas’s

petition as to this issue, too.



                                        V.

      As set forth above, we have no jurisdiction to review the

BIA’s discretionary decision to vacate the IJ’s order.                    And, as

to the notice to appear and the NOA issues, we find no error.



                                             13
Consequently, we dismiss Coreas’s petition in part and deny it

in part.

                                     PETITION DISMISSED IN PART
                                             AND DENIED IN PART




                                14
