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


12-7-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3597




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                                                    NOT PRECEDENTIAL
                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT

                                       No. 06-3597
                                    ________________

                                    SERGIO MORENO,
                                                           Petitioner

                                              v.

                          ATTORNEY GENERAL OF THE
                                 UNITED STATES
                     ______________________________________

                       On Petition for Review of a Decision of the
                            Board of Immigration Appeals
                              (Agency No. A91-297-426)
                         Immigration Judge: Daniel A. Meisner
                     _______________________________________

                       Submitted Under Third Circuit L.A.R. 34.1(a)
                                   December 5, 2007

                 Before: SLOVITER, BARRY and WEIS, Circuit Judges

                            (Opinion Filed: December 7, 2007)
                               _______________________

                                       OPINION
                                _______________________

PER CURIAM

       Sergio Moreno, a native and citizen of Mexico, petitions for review of a final order

of the Board of Immigration Appeals (“BIA”). For the following reasons, we will dismiss

in part and deny in part the petition for review.


                                              1
                                               I.

       Moreno entered the United States in 1981 and became a lawful permanent resident

in 1990. In 1998, he was convicted in a New York state court of misdemeanor possession

of cocaine in the seventh degree. And in 2005, Moreno was convicted in New York of

criminal facilitation in the fourth degree.1 See NEW YORK PENAL LAW § 145.00.

       In July 2006, Moreno was charged with removability for having been convicted of

a controlled substance offense. See 8 U.S.C. § 1227(a)(2)(B)(i). The government also

alleged that Moreno’s conviction for criminal facilitation constituted a drug-trafficking

aggravated felony. See 8 U.S.C. § 1227(a)(2)(A)(iii). The Immigration Judge (“IJ”)

concluded that Moreno was removable for having committed a controlled-substance

offense, but that he was not an aggravated felon. That decision left Moreno eligible for

cancellation of removal, which the IJ denied as a matter of discretion. See 8 U.S.C. §

1229b. A single member of the BIA summarily affirmed the IJ’s decision without

opinion pursuant to 8 C.F.R. § 1003.1(e)(4).

       Moreno, who at all times has acted pro se, filed a timely petition for review.

                                             II.

       The government argues that we lack jurisdiction to consider Moreno’s petition

because he seeks review of the discretionary denial of cancellation of removal under 8

U.S.C. § 1229b. The Immigration and Nationality Act (“INA”) provides that “no court


   1
       Moreno has also been convicted of theft (1986), on a gun charge (1990), and for
driving under the influence (1992).

                                               2
shall have jurisdiction to review . . . any . . . decision or action of the Attorney General . .

. the authority for which is specified under [relevant provisions of the INA] to be in the

discretion of the Attorney General. . . .” 8 U.S.C. § 1252(a)(2)(B)(ii). However, the

REAL ID Act of 2005 restored direct review of constitutional claims and questions of law

presented in petitions for review of final removal orders. See 8 U.S.C. § 1252(a)(2)(D).

The decision to grant or deny relief pursuant to § 1229b is a discretionary one. See

Mendez-Moranchel v. Ashcroft, 338 F.3d 176, 178 (3d Cir. 2003). Therefore, to the

extent that Moreno challenges the IJ’s and BIA’s discretionary conclusions that he does

not warrant cancellation of removal under §1229(b), we lack jurisdiction.2 Id.

       We do, however, have jurisdiction over Moreno’s challenge to the BIA’s decision

to assign the case to one of its members who then issued a summary affirmance without

opinion. See Smriko v. Ashcroft, 387 F.3d 279, 295-96 (3d Cir. 2004). The BIA is

entitled to streamline its caseload, but it must do so in accordance with the applicable

regulations, which permit a BIA member to affirm without opinion if the “issues on

appeal are squarely controlled by existing [BIA] or federal court precedent and do not

involve the application of precedent to a novel factual situation,” or if the “factual and



   2
       We note that Moreno’s challenge to the decision to deny cancellation of removal is
premised on his assertion that he is not an aggravated felon because his conviction for
criminal facilitation is not a drug-trafficking crime under 8 U.S.C. § 1227(a)(2)(A)(iii).
However, the IJ determined that Moreno was not an aggravated felon. Rather, the IJ
found him removable for committing a controlled substance offense (the 1998 conviction
for possession of cocaine), and then denied his application for cancellation of removal as
a matter of discretion.

                                               3
legal issues . . . are not so substantial that the case warrants the issuance of a written

opinion.” 8 C.F.R. § 1003.1(e)(4)(i). We may grant a petition for review where we

conclude that the BIA’s decision to streamline a case was “arbitrary and capricious.”

Smriko, 387 F.3d at 296.

       After fully reviewing the IJ’s decision, we conclude that there is nothing in the

record to suggest that the BIA’s decision to conduct a streamlined review of Moreno’s

appeal was arbitrary and capricious. There is no question that Moreno was removable

under 8 U.S.C. § 1227(a)(2)(B)(i) because he was convicted of possession of cocaine.

The IJ then applied the requisite balancing test pursuant to Matter of C-V-T-, 22 I. & N.

Dec. 7 (BIA 1998), to determine whether granting Moreno’s request for cancellation of

removal was appropriate. The IJ found that the factors in Moreno’s favor (his 25-year

continuous residence in the United States and the presence of numerous family members

in the United States) were outweighed by the adverse factors, such as his extensive

criminal record, long-term drug addiction, and eight-year failure to file an income tax

report. The IJ also noted that Moreno does not support a family, and that none of his

siblings came to the hearing to support him or wrote a letter on his behalf. Based on these

facts, we cannot say that the BIA’s use of the summary affirmance procedure in this case

was arbitrary or capricious. Eligibility for removal and cancellation of removal are

controlled by well-established precedent, and Moreno’s case presented no substantial or

novel factual or legal issues to warrant a written opinion.

       For these reasons, and after careful consideration of the record and the parties’

                                               4
contentions, we will grant the government’s motion to dismiss for lack of jurisdiction as

to the portions of Moreno’s petition for review seeking to challenge the conclusion that he

does not warrant a favorable exercise of discretion for relief under 8 U.S.C. § 1229b. We

will deny the petition as to Moreno’s contention that the BIA improperly utilized the

streamlining procedure of 8 C.F.R. § 1003.1(e)(4).




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