                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-6-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1618




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                                                                   NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                      No. 07-1618

                               PEDRO MARIA LOPEZ

                                                      Petitioner

                                           v.

                    ATTORNEY GENERAL OF THE UNITED
                    STATES; SECRETARY OF DEPARTMENT
                         OF HOMELAND SECURITY
                                           Respondent

                         Petition for Review of an Order of the
                             Board of Immigration Appeals
                                   (No. A91-035-362)
                          Immigration Judge: Miriam K. Mills

                     Before: McKEE and GARTH, Circuit Judges,
                             and IRENAS,* District Judge

                   Submitted pursuant to Third Circuit LAR 34.1(a)
                                   May 16, 2008

                                (filed: October 6, 2008)

                                       OPINION

McKEE, Circuit Judge.

      Pedro Maria Lopez petitions for review of a final order of the Board of


      *
      The Honorable Joseph E. Irenas, United States District Judge for the District of
New Jersey, sitting by designation.

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Immigration Appeals affirming the decision of an Immigration Judge denying his

application for waiver of deportation under former § 212(c) of the Immigration and

Nationality Act (“INA”), 8 U.S.C. § 1182(c) (repealed 1996).1 Because we have no

jurisdiction over the BIA’s final order, we will dismiss the petition.

                                              I.

       Inasmuch as we are writing primarily for the parties, we will recite the factual and

procedural background only insofar as necessary to our brief discussion.

       On February 2, 1994, Lopez appeared with counsel, and expressed a desire to

apply for a discretionary waiver under former § 212(c). On April 19, 1994, Lopez

admitted that he was born in “Santo Domingo,” but invoked the Fifth Amendment in

refusing to answer any other questions. The IJ found that Lopez was deportable and

ruled that he was not eligible for § 212(c) relief.

       The BIA dismissed his appeal finding that he was removable as an aggravated

felon based on a conviction for a controlled substance offense, but not based on any

convictions involving moral turpitude. The BIA agreed that Lopez was not eligible for §

212(c) relief.

       On January 26, 2001, Lopez filed a motion to reopen with the BIA on the grounds



       1
        Former INA § 212(c) “permitted deportable aliens, who had accrued seven years
of lawful permanent residence in the United States, to request discretionary relief from
deportation if the equities weighed in favor of their remaining in the country.” Atkinson
v. Attorney General of the United States, 479 F.3d 222, 224 (3d Cir. 2007).

                                              2
that he was eligible to apply for § 212(c) relief pursuant to our holding in Sandoval v.

Reno, 166 F.3d 225 (3d Cir. 1999), which found that courts maintained jurisdiction over

pending cases requesting § 212(c) relief. On August 30, 2002, the BIA granted the

motion to reopen and remanded to an IJ for a determination of Lopez’s eligibility for that

relief.

          On remand, the IJ denied Lopez’s request for a § 212(c) waiver. The IJ discussed

the applicable factors and conducted the balancing test set forth in Matter of Marin, 16 I.

& N. Dec. 581 (BIA 1978). The IJ concluded that the adverse factors outweighed the

favorable factors and held that Lopez was therefore not deserving of discretionary relief

under § 212(c).

          Lopez had been placed in removal proceedings because of drug convictions in

1981 and 1992. In denying relief, the IJ noted that Lopez had been arrested for drug

possession again in 2001. Lopez admitted to dealing drugs for ten years in New York

and, despite claiming that he moved to Pennsylvania to get away from drugs, Lopez was

arrested twice more as a result of his continuing involvement with illegal drugs. Lopez’s

criminal record also included driving under the influence, driving on a suspended

license, careless driving, and he had admitted other instances when he drove while

impaired. One of those incidents involved a crash.

          Although Lopez received only sentences of probation, the IJ concluded that the

nature of his offenses and the fact that he persisted in criminal conduct even after being


                                              3
placed in deportation proceedings outweighed the factors that might have otherwise

resulted in a waiver.

       Lopez filed a timely appeal to the BIA arguing that the IJ erred by not properly

weighing his equities, see n.1, supra, and in denying discretionary relief under § 212(c).

The BIA agreed with the IJ’s conclusion that Lopez had not shown sufficient equities to

offset his recidivist history, and affirmed the IJ’s denial of relief.

       This petition for review followed.

                                               II.

       Pursuant to 8 U.S.C. § 1252(a)(2)(C), we lack jurisdiction to “review any final

order of removal against an alien who is removable by reason of having committed a

criminal offense covered” in certain sections of the INA. This includes offenses listed in

8 U.S.C. §§ 1227(a)(2)(A)(iii) and (B), except as provided in 8 U.S.C. § 1252(a)(2)(D).

       Congress amended the INA in the REAL ID Act. Pursuant to that Act, we are not

not precluded from reviewing “constitutional claims or questions of law raised in a

criminal alien’s petition for review.” Bonhometre v. Gonzales, 414 F.3d 442, 445 (3d

Cir. 2005). Lopez was found deportable pursuant to his 1992 cocaine conviction which

is an offense listed in 8 U.S.C. §§ 1251(a)(2)(A)(iii) and (B). Therefore, unless Lopez

has raised a colorable constitutional or legal claim, we lack jurisdiction over his petition

for review under 8 U.S.C. § 1252(a)(2)(C).

       Lopez attempts to assert a constitutional claim by arguing that the BIA failed to


                                               4
properly consider the evidence in denying his request for § 212(c) relief, thereby denying

him due process of law. Despite Lopez’s efforts to cloak his challenge in the language of

due process, it is clear that he is only challenging the BIA’s unfavorable exercise of

discretion and the adverse result of weighing the equities in his case. He claims that the

BIA failed to afford him an individualized determination and that “[w]hen applying the

correct legal standard, Petitioner provided sufficient evidence to support his claim for

relief pursuant to former INA § 212(c),” Lopez’s Br. at 16. However, that claim is

simply not subject to judicial review. See Elysee v. Gonzales, 437 F.3d 221, 223-24 (1st

Cir. 2006) (finding no colorable constitutional claim or question of law where petitioner

argued that the IJ “complete[ly] disregard[ed]” the relevant hardships that would be

faced by his children if he were deported).

       Similarly, Lopez can not raise a claim of legal error simply by stating that the BIA

failed to apply the law in deciding whether his equities warranted a favorable exercise of

discretion under § 212(c). See Bugayong v. INS, 442 F.3d 67, 72 (2d Cir. 2006) (“absent

a specific issue of statutory construction, the term ‘questions of law’ in 8 U.S.C. §

1252(a)(2)(D) does not provide the Court with jurisdiction to review a petitioner’s

challenge to a decision firmly committed by statute to the discretion of the Attorney

General.”); Suskwanputra v. Gonzales, 434 F.3d 627, 634 (3d Cir. 2006) (“[F]actual or

discretionary determinations . . . fall outside the jurisdiction of the court of appeals

entertaining a petition for review.”).


                                               5
                                           III.

       Accordingly, for the reasons set forth above, we will dismiss Lopez’s petition for

review for lack of jurisdiction.




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