                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 17-3806
                                       ___________

                                  DWAYNE BRISCOE,
                                             Petitioner

                                             v.

              ATTORNEY GENERAL UNITED STATES OF AMERICA,
                                          Respondent
                   ____________________________________

                        On Petition for Review of an Order of the
                             Board of Immigration Appeals
                              (Agency No. A044 138 525)
                           Immigration Judge: John B. Carle
                       ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   October 5, 2018

             Before: JORDAN, RESTREPO and SCIRICA, Circuit Judges

                            (Opinion filed: October 18, 2018)
                                      ___________

                                        OPINION*
                                       ___________

PER CURIAM



*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Dwayne Briscoe petitions for review of an order of the Board of Immigration

Appeals (“BIA”), which affirmed an Immigration Judge’s (“IJ”) determination that he

was removable for a controlled substance violation, but which vacated the IJ’s decision

granting Briscoe cancellation of removal. We will deny the petition for review.

                                             I.

       Briscoe, a citizen of Jamaica, entered the United States in 1993 as an immigrant at

the age of seven. In 2007, he pleaded guilty to possession of a controlled dangerous

substance (marijuana) with the intent to distribute within 1000 feet of school property, in

violation of N.J. Stat. Ann. § 2C:35-7. He was sentenced to one day in prison and three

years’ probation. He also was arrested in October 2015 on a domestic violence call. In

connection with that call, Briscoe’s girlfriend, with whom he has two U.S.-citizen

children, stated that Briscoe had threatened her. Briscoe had a knife in his hands when

police arrived, although he stated that he had taken it away from his girlfriend. His

girlfriend declined to testify against him and bailed him out, and the charges were

dropped. Briscoe was placed in removal proceedings in 2016 with charges under 8

U.S.C. § 1227(a)(2)(A)(iii) (alien convicted of aggravated felony) and 8 U.S.C.

§ 1227(a)(2)(B)(i) (alien convicted of controlled substance offense). IJ Kuyomars Q.

Golparvar sustained the charges and pretermitted Briscoe’s application for cancellation of

removal under 8 U.S.C. § 1229b(a), due to his aggravated felony finding. On appeal, the

BIA, citing Chang-Cruz v. Att’y Gen., 659 F. App’x 114 (3d Cir. 2016) (not

                                             2
precedential), held that the drug conviction was not an aggravated felony, and remanded

to the IJ for consideration of cancellation of removal.

       On remand, IJ John B. Carle granted cancellation of removal, but the Government

appealed, and the BIA vacated the IJ’s decision, concluding that Briscoe had “not met his

burden of establishing that a grant of cancellation of removal under section 240A(a) of

the Act [8 U.S.C. § 1229b(a)] is warranted in the exercise of discretion.” Briscoe,

proceeding pro se, filed a timely petition for review.

                                              II.

       First, we address Briscoe’s argument that he is not removable. He argues here, as

he did before the IJ, that his conviction involved less than 2 grams of marijuana, and that

such a crime is not punishable under the Federal Controlled Substances Act (“CSA”).

But whether such an offense is punishable under the CSA is not relevant for purposes of

8 U.S.C. § 1227(a)(2)(B)(i)—that provision renders an alien removable if he “has been

convicted of a violation of . . . any law or regulation of a State, the United States, or a

foreign country relating to a controlled substance (as defined in section 802 of Title 21),1

other than a single offense involving possession for one’s own use of 30 grams or less of

marijuana.” (emphasis added). And even assuming that he possessed less than 30 grams

of marijuana, he pleaded guilty to possession with the intent to distribute within 1000 feet


1
  Marijuana is a “controlled substance” under the CSA. “There is no question that it is a
federal crime to ‘possess with intent to . . . distribute . . . a controlled substance,’ 21
U.S.C. § 841(a)(1), one of which is marijuana, § 812(c).” Moncrieffe v. Holder, 569 U.S.
                                                3
of school property, which is not a conviction for possession for one’s own use. A.R. 423-

24 (criminal judgment, indicating statute of conviction: “2C:35-7” and “Name of Drugs

Involved Marijuana”). Further, Briscoe is incorrect that a conviction needs to be a felony

to be a controlled substance violation under 8 U.S.C. § 1227(a)(2)(B)(i). See Moncrieffe,

569 U.S. at 204 (“Any marijuana distribution offense, even a misdemeanor, will still

render a noncitizen deportable as a controlled substances offender.”).

         Second, Briscoe challenges the BIA’s decision to overturn the cancellation of

removal decision. Under 8 U.S.C. § 1252(a)(2)(B), we lack jurisdiction to review

discretionary decisions, such as “the granting of relief under . . . 1229b.” But

§ 1252(a)(2)(D) restores our jurisdiction to review legal claims, such as whether the BIA

used the correct legal standard. See Roye v. Att’y Gen., 693 F.3d 333, 339 (3d Cir.

2012).

         Briscoe argues that the BIA used the wrong legal standard because it did not defer

to the IJ’s factual findings. We disagree. In its December 13, 2017 decision, the BIA

recognized that it was to review the IJ’s factual findings under a “clearly erroneous”

standard and it determined that the IJ’s findings were “not clearly erroneous.” BIA’s

decision at 1. However, it did assign different weight to some of the factors involved in

the decision. For example, although the IJ noted that Briscoe “continued to smoke

marijuana up until just prior to going into ICE detention” and expressed “concern[]”


184, 192 (2013).
                                              4
about whether Briscoe “will continue to use illegal drugs in the United States,” the IJ

determined that Briscoe demonstrated that he warranted relief. IJ’s decision at 8, 13-14.2

In contrast, the BIA stated that because Briscoe had resumed use of marijuana after

completing his probationary period following his 2007 conviction, his testimony that he

would not use illegal drugs in the future was “insufficient to establish that he will not

again use marijuana, and overall, indicates a propensity to violate the law.” BIA decision

at 2. Although Briscoe characterizes this as a reversal of the IJ’s factual finding, the BIA

simply gave more adverse weight to the same factual situation, which it is authorized to

do. See 8 C.F.R. § 1003.1(d)(3)(ii) (explaining that the BIA exercises de novo review

over discretionary questions).

         Similarly, with regards to the domestic violence arrest, the BIA weighed the

importance of the incident differently. The IJ appeared to minimize the significance of

the arrest, noting that Briscoe and his girlfriend had lived together for four years, that

they had two children together, and that the charges were dismissed by the court. The IJ

also noted that Briscoe had plans to live with his mother, get a job, and provide for his

family if released. But the BIA, considering the same factual incident, found the arrest a

“serious adverse factor,” as it was authorized to do.

         Briscoe also argues that the BIA improperly characterized his drug conviction as

“serious.” While a conviction must be an aggravated felony in order to be a “particularly


2
    Notably, the IJ did not explicitly find that Briscoe would not use illegal drugs in the
                                                 5
serious crime,” (which, e.g., can serve as a bar to asylum relief and withholding of

removal, see, e.g., Alaka v. Att’y Gen., 456 F.3d 88, 105 (3d Cir. 2006)), the BIA here

did not find that it was a “particularly serious crime” under a statutory provision; rather, it

simply characterized the crime as “serious” in the layman’s sense of the word. Again, the

BIA was simply assigning more weight to the undisputed fact that Briscoe had been

convicted of a drug distribution offense.

          Finally, Briscoe argues that the BIA failed to follow its precedent by failing to

give any weight to the positive factors in its decision, citing In Re Arreguin De

Rodriguez, 21 I. & N. Dec. 38 (BIA 1995). In that case, the BIA reversed an IJ’s denial

of relief under former § 212(c) of the Act, even though the alien had been convicted of a

crime involving “78.45 kilograms of marijuana,” because of the alien’s substantial

equities. Id. at 39-41. But the BIA did acknowledge the positive factors in Briscoe’s

case. See BIA decision at 1 (“[W]e agree with the [IJ] that [Briscoe] has demonstrated

numerous equities, including [his] long residence in the United States, his strong family

ties, and his employment history.”). And Briscoe’s argument that the BIA “incorrectly

weighed the evidence,” Pet. Br. at 15, is one that this Court cannot review. See Cospito

v. Att’y Gen., 539 F.3d 166, 170 (3d Cir. 2008) (ruling that a court cannot review an

alien’s contentions that the IJ “gave short shrift to crucial evidence” as that is simply a

quarrel over the exercise of discretion).


future.
                                                6
      As we discern no reviewable error in the BIA’s decision, we will deny the petition

for review.




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