IMG-069 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THlRD ClRCUlT
No. 10-1121
l\/IAGGARETTE PALMER,
Petitioner
V.
ATTORNEY GENERAL OF THE UNlTED STATES,
ReSpondent
On Petition for Revievv of an Order of the
Board of lmmigration Appeals
(Agency No. A()44-134-71 l)
lrnrnigration Judge: Honorable Walter A. Durling
Submitted PurSuant to Third Circuit LAR 34.1(a)
March 16, 2011
Before: BARRY, HARDll\/IAN and STAPLETON, Circuit Judges
(Opinion filed: l\/larch 2l, 201 l)
OPINION
PER CURlAM
l\/laggarette Palmer petitions for review of an order of the Board of lnimigration
Appeals ("BIA") vacating the lmmigration Judge’S ("IJ") grant of cancellation of
removal and ordering his removal from the United States. We will deny the petition for
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review in part and dismiss it in part.
Because the parties are familiar with the background, we will present it here only
briefly. Palmer is a native and citizen of Jamaica. ln 1993, as a minor, he was admitted
to the United States as a lawful permanent resident. ln 2()04, he was convicted in
Pennsylvania state court of possession of marijuana with intent to distribute. In February
2009, Palmer was charged as being removable as an alien convicted of a controlled
substance offense (8 U.S.C. § 1227(a)(2)(B)(i)) and as an alien convicted of an
aggravated felony (8 U.S.C. § 1227 (a)(2)(A)(iii)). Palmer denied the aggravated felony
charge but conceded the other allegations He applied for cancellation of removal under
section 240A(a) of the lmmigration and Nationality Act ("lNA") (8 U.S.C. § l229b(a)).
On April 9, 2009, the lJ ruled that Palmer’s state marijuana offense did not support the
aggravated felony removal charge, and accordingly, Palmer was not statutorily barred
from seeking section 24OA(a) cancellation relief. Palmer testified at his merits hearing
before the lJ, and he submitted documentary evidence and letters of support. He also
presented the testimony of his live-in girlfriend, with whom he has two children who are
United Stats citizens
On August 28, 2009, the IJ granted Palmer’s application for cancellation of
removal. The lJ noted that Palmer’s conduct justified the denial of his application, but
the application was granted for the sake of Palmer’s young children and keeping the
family united. The government appealed to the BlA, which sustained the appeal ln its
December 14, 2009 decision, the BlA recited its standard of review, citing 8 C.F.R. §
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l003.1(d)(3)(i)-(ii), noting that it would review the lJ’s factual findings for clear error
and all other issues de novo. The BlA did not address the issue of Palmer’s statutory
eligibility for cancellation of removal, because it determined that, even assuming that his
eligibility was established, Palmer did not merit cancellation relief. In so concluding, the
BlA noted the positive equities in Palmer’s case, namely, his close family ties in the
United States, his many years of residence, his active role in parenting his young
children, the financial support he provides to his girlfriend and children, and the
emotional impact on his family. However, the BIA determined that the negative factors
in his case outweighed the positive ones. The BlA summarized Palmer’s criminal record,
which shows a pattem of repeated drug-related arrests. In addition to the 2004 marijuana
conviction, the BlA noted a 2003 arrest for marijuana possession with intent to deliver,
and a 206 arrest in Georgia. ln the Georgia incident, the car in which Palmer was a
passenger was pulled over by police; marijuana was discovered in Palmer’s trousers, and
he provided the police with false identification. The BlA also noted a 2009 arrest in
Pennsylvania during which Palmer provided the police with the same alias he used in
Georgia. Further, the BlA stated that, although Palmer expressed remorse for his actions,
there was little evidence of genuine rehabilitation. The BlA concluded that Palmer’s
"lengthy criminal history, the seriousness of his drug conviction, and the lack of
rehabilitation outweigh the positive factors regarding the exercise of discretion." A.R. 5.
The BlA denied Palmer’s application for cancellation of removal, vacated the lJ’s grant
of cancellation of removal, and ordered Palmer’s removal to Jamaica. This petition for
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review followed.
The government has filed a motion to dismiss the petition for review for lack of
jurisdiction As the government argues in its brief, we generally lack jurisdiction to
review the agency’s discretionary decisions made under 8 U.S.C. § 1229b regarding
cancellation of removal. § 8 U.S.C. § 1252(a)(2)(B)(i); Mendez-Reyes v. Att’y Gen.,
428 F.3d 187, 189 (3d Cir. 2005). However, we retain jurisdiction to review
constitutional claims and questions of law. § 8 U.S.C. § l252(a)(2)(D); Mendez-
l, 428 F.3d at 189. Palmer argues that the BlA committed legal error in reaching its
decision, specifically, that the BlA applied an incorrect legal standard, engaged in
impermissible fact findings, and failed to consider all of the relevant evidence. Palmer
also argues that the manner in which the BlA reached its decision deprived him of due
process of law. We have jurisdiction to review these arguments.
In arguing that the BIA misapplied established legal standards and precedents in
its decision to deny cancellation of removal, Palmer argues that the BlA viewed Palmer’s
drug conviction as a "serious" drug offense, inappropriately relying on l\/latter of
Burbano, 20 I. & N. Dec. 872, 877 n.4 (BlA 1994). Specifically, Palmer points to the
BIA’s statement in Burbano that it had viewed a "serious" drug offense as a drug
trafficking crime that constitutes an aggravated felony under the lNA. Palmer argues that
the BlA should not have relied on Burbano because he was not convicted of an
aggravated felony, and the BIA should not have determined that the "seriousness" of his
drug conviction warranted reversal of the grant of cancellation of removal. Although the
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BlA’s citation to Burbano does relate to "serious drug offenders," the idea expressed in
the BlA’s reference is the general proposition that those offenders face a difficult task in
showing that they merit discretionary relief (A.R. 3.) That idea was expressed in
Burbano within the context of the BlA’s re-emphasis of its practice to balance the
positive and negative factors when making a determination regarding discretionary relief.
§ Burbano 20 I. & N. Dec. at 878-79 (discussing former lNA § 212). lt is plain that the
BlA did not treat Palmer’s drug conviction as an aggravated felony. An aggravated
felony finding would have statutorily precluded cancellation of removal relief, § 8
U.S.C. § l229b(a)(3), but the BlA bypassed the question of Palmer’s statutory eligibility
for cancellation relief and instead assumed that Palmer was eligible. Ultimately, the BIA
concluded that Palmer did not merit cancellation relief, and we are not persuaded that the
BlA applied an improper legal standard by its reference to Burbano.1
Palmer also argues that the BIA engaged in impermissible fact finding when it
concluded that there was a lack of genuine rehabilitation in his case. Under 8 C.F.R. §
1003. l(d)93)(i), the BIA must defer to the IJ’s factual findings unless it concludes that
the lJ’s findings are clearly erroneous. Further, under § l003.l(d)(3)(iv), the BlA is
prohibited from engaging in its own independent fact finding Palmer relies on our
decisions in Kaplun v. Att’y Gen., 602 F.3d 260 (3d Cir. 2010), and Fortreau v. Att’y
1 To the extent that Palmer argues that the BlA should have accorded less weight to
his conviction because it was not "serious," this challenge concems the BlA’s
exercise of its discretion in considering the equities presented in Palmer’s case. As
noted above, we lack jurisdiction to review this issue.
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§ 240 Fed. Appx. 531 (3d Cir. 2007) (not precedential), in which we discussed the
BlA’s standard of review and found, in both cases, that the BlA impermissibly conducted
de novo fact finding and overturned the lJ’s factual findings without reviewing the
findings for clear error. Palmer asserts that the BlA did not deem any facts found by the
lJ to be clearly erroneous, and so the BlA’s conclusion concerning the absence of
genuine rehabilitation constitutes improper fact finding
We are not persuaded by Palmer’s argument. The BlA did not disagree with the lJ
on this issue and did not ignore or contradict any facts found by the IJ. Indeed, the BlA
echoed the IJ’s own discussion on the topic, from the same details of Palmer’s criminal
history that includes several arrests involving marijuana and at least two instances of
providing false identification to the police. The lJ found that Palmer continued to use
marijuana for years, despite his arrests and convictions relating to marijuana, and that
Palmer had pending criminal charges against him. Although the lJ noted that Palmer
"sincerely expressed his remorse for his conduct" in pleading for a final chance, the lJ’s
comment was that "this court has little sympathy for him, given his criminal record."
(A.R. 98.) ln fact, far from making a finding that the evidence showed genuine
rehabilitation, the IJ stated that Palmer’s conduct justified the denial of his application for
cancellation relief. (A.R. 99.) The lJ emphasized that the facts of record would not have
been sufficient for the lJ’s favorable ruling absent the equities concerning the Palmer’s
young children. (l_d.) Unlike in gm and Fortreau, the BlA in this case did not
overturn a factual finding by the lJ. Rather, the BlA’s decision reflects that the BlA
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determined that a favorable exercise of discretion was not warranted when the positive
factors in Palmer’s case were balanced against the negative factors We discern no error
here.
In addition, Palmer argues that the BlA departed from the legal standard of §
of Arreguin, 21 l. & N. Dec. 38 (BlA 1995), in considering only Palmer’s criminal
history without considering positive aspects of Palmer’s life to reach the conclusion that
there was a lack of rehabilitation. ln particular, Palmer points to his presence in the
United States under lawful permanent resident status since he was a minor, his strong
family ties to the United States and the impact on his family if he were removed, and his
employment history and business property. Yet the BlA did acknowledge each of these
positive factors, as noted above. Although Palmer argues that the BlA completely failed
to consider his employment history and business property, and he notes his girlfriend’s
testimony that her daycare was at risk of failing without Palmer’s involvement as the
supervisor of outdoor activities, the BlA’s decision acknowledges the financial impact
that Palmer’s removal would have on his family. To the extent that Palmer argues that
the BlA incorrectly weighed the evidence because more weight should have been given
to the positive factors over the other factors, we reiterate that we lack jurisdiction to
consider the BlA’s exercise of discretion.
Accordingly, we will deny the petition for review in part, and dismiss it in part for
lack of jurisdiction. The govemment’s motion to dismiss is granted in part and denied in
part.
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