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


2-14-2007

Perez-Nunez v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1217




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NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT

                                     No: 06-1217

                          WILSON LUCIANO PEREZ-NUNEZ,

                                                Petitioner

                                           v.

                  ATTORNEY GENERAL OF THE UNITED STATES,

                                                  Respondent




                    On Petition for Review of Final Decision of the
                             Board of Immigration Appeals
                                BIA No.: A31-427-239
                         Immigration Judge: Grace A. Sease


                  Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                 February 12, 2007

                    Before: SMITH and FISHER, Circuit Judges,
                          and DIAMOND, District Judge*

                              (Filed: February 14, 2007)


                                      OPINION


SMITH, Circuit Judge.


      *
       The Honorable Gustave Diamond, Senior District Judge for the Western District
of Pennsylvania, sitting by designation.

                                           1
       Wilson Perez is a native and citizen of Ecuador. He was admitted as a lawful

permanent resident to the United States on February 19, 1972. Perez was convicted of

Attempted Sexual Abuse in the Second Degree on October 26, 1996 in Nassau, New

York. Perez was convicted of Endangering the Welfare of a Child on March 4, 1998, also

in Nassau. On March 21, 2004, the Department of Homeland Security (“DHS”) charged

that Perez was removable as an alien convicted of a crime of child endangerment. See 8

U.S.C. § 1237(a)(2)(E)(i). DHS added on May 11, 2005 that Perez was removable as an

alien convicted of two or more crimes of moral turpitude not arising out of a single

scheme. See 8 U.S.C. § 1227(a)(2)(A)(ii). Perez has 14 convictions.

       The Immigration Judge (“IJ”) found Perez removable at a May 18, 2005 hearing.

Following a second hearing, the IJ denied Perez’s application for discretionary

cancellation of removal under section 240A of the Immigration and Nationality Act

(“INA”), 8 U.S.C. § 1229b(a), and ordered Perez removed. The Board of Immigration

Appeals (“BIA”) dismissed Perez’s appeal on December 15, 2005. Perez timely

petitioned this Court to review the BIA and IJ’s decision.

       We lack jurisdiction to review the IJ’s decision to deny Perez’s application for

cancellation of removal made pursuant to 8 U.S.C. § 1229b(a). The INA states that “no

court shall have jurisdiction to review [] any judgment regarding the granting of relief

under section . . . 1229b . . . of this title.” 8 U.S.C. § 1252(a)(2)(B)(i). The statute

provides an exception when the petitioner raises a constitutional claim or a question of

law. 8 U.S.C. § 1252(a)(2)(D) (noting that the statute shall not “be construed as

                                               2
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”).

       Perez argues that the IJ violated his right to due process by failing to follow BIA

precedent. Perez contends that the IJ improperly weighed his “positive and negative

equities” and accorded improper weight to his 22 arrests. Perez argues that the IJ’s “most

substantial error” was failing to weigh his “positive equities in the aggregate.”

       Perez’s claim has no merit. The IJ’s oral decision reveals a conscientious

consideration of all the relevant factors in Perez’s case, including his relationship with his

family, his volunteer work, his employment status, the nature of his crimes, and his

history of alcoholism and purported recovery. The BIA disagreed with the weight that

the IJ accorded to Perez’s arrests, noting that the IJ should have focused on Perez’s

convictions. However, this in no way disguises the fact that Perez simply asks us to re-

balance the equities in his case in a manner that better suits him. Perez raises no

questions of law that would fall within the exception to the jurisdictional bar provided in

8 U.S.C. § 1252(a)(2)(D). See Zheng v. Gonzales, 422 F.3d 98, 113 (3d Cir. 2005)

(noting that we cannot “second-guess” discretionary decisions made in individual cases

when the § 1252(a)(2)(B)(i) jurisdictional bar applies); Mendez-Moranchel v. Ashcroft,

338 F.3d 176, 179 (3d Cir. 2003) (“We hold that § 1252(a)(2)(B)(i) strips us of

jurisdiction to review certain discretionary decisions under the Immigration and

Naturalization Act as enumerated by the statute. The decision whether an alien meets the

hardship requirement in 8 U.S.C. § 1229b is such a discretionary judgment.”); see also

                                              3
Mendez-Reyes v. Attorney General of U.S., 428 F.3d 187, 189-190 (3d Cir. 2005)

(providing examples of questions of law falling under the § 1252(a)(2)(D) exception).

      We will not flout the clear language of the statute by ignoring the jurisdictional bar

simply because Perez has invoked the language of due process to criticize the IJ’s

weighing of the evidence. We will deny the petition for review.




                                            4
