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


7-20-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2326




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  Resubmit ELD-37-E                                      NOT PRECEDENTIAL

                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT

                               NO. 07-2326
                            ________________

                       LENROY BRIAN FORTEAU,
                           a/k/a Brian Forteau,

                                      Petitioner

                                      v.

             ATTORNEY GENERAL OF THE UNITED STATES,

                                  Respondent
                ______________________________________

                  On Petition for Review of a Decision of the
                        Board of Immigration Appeals
                          (Agency No. A35 217 847)
               Immigration Judge: Honorable Andrew R. Arthur
                _______________________________________

                 Submitted For Possible Summary Action
               Under Third Circuit L.A.R. 27.4 and I.O.P. 10.6
                               July 9, 2007

        Before: MCKEE, GARTH AND NYGAARD, CIRCUIT JUDGES

                           (Filed July 20, 2007)
                        _______________________

                               OPINION
                        _______________________

PER CURIAM
       Lenroy Forteau petitions for review of the decision by the Board of Immigration

Appeals (“BIA”) denying him cancellation of removal and ordering him removed to

Grenada. For the foregoing reasons we will grant the petition.

       Forteau, a citizen of Grenada, arrived in the United States as a lawful permanent

resident more than 27 years ago. Until these proceedings he lived in New York City. In

2000, Forteau pleaded guilty to endangering the welfare of a minor. He was sentenced to

three years’ probation. In 2006, Forteau was arrested and pleaded guilty to disorderly

conduct, for which he was sentenced to time served, 15 days’ incarceration.

       Upon his release he was taken into immigration custody and charged as removable

under 8 U.S.C. § 1227(a)(2)(A)(iii) as an aggravated felon and under § 1227(a)(2)(E)(I)

as having been convicted of a crime of domestic violence, stalking, or child abuse,

neglect, or abandonment. The Government eventually withdrew the aggravated felony

charge. At a hearing in front of an immigration judge (“IJ”), Forteau conceded

removability and applied for cancellation of removal pursuant to 8 U.S.C. § 1229b(a).1



   1
   § 1229b(a) reads:
      Cancellation of removal for certain permanent residents

       The Attorney General may cancel removal in the case of an alien who is
       inadmissible or deportable from the United States if the alien--

       (1) has been an alien lawfully admitted for permanent residence for not less than 5
       years,
       (2) has resided in the United States continuously for 7 years after having been
       admitted in any status, and
       (3) has not been convicted of any aggravated felony.

                                            2
The IJ credited Forteau’s testimony about his convictions and granted him cancellation of

removal under 8 U.S.C. § 1229b(a). The Government appealed to the BIA. The BIA

sustained the Government’s appeal and reversed the grant of cancellation of removal.

       Forteau, acting pro se, filed this petition for review and motion for a stay of

removal. We granted the stay and issued an order to show cause why the petition for

review should not be granted and the matter remanded to the BIA. Because the BIA used

the wrong standard of review to overturn the IJ’s decision, in accordance with Third

Circuit L.A.R. 27.4 and I.O.P. 10.6, we will grant the petition, vacate the BIA’s decision,

and remand for further proceedings.

                                              I.

       The Government has moved to dismiss this petition for review for lack of

jurisdiction. The Government argues that, under 8 U.S.C. § 1252(a)(2)(B), this Court

does not have jurisdiction to review the BIA’s order. Under 8 U.S.C. § 1252(a)(2)(B)(I)

courts are stripped of jurisdiction to review “any judgment regarding granting relief under

[§ 1229b].” We have previously held that § 1252(a)(2)(B)(I) only deprives courts of

jurisdiction to review the BIA’s exercise of discretion regarding its decision to deny

cancellation of removal. Menendez-Morachel v. Ashcroft, 338 F.3d 176, 178 (3d Cir.

2003)(holding that courts lack jurisdiction to review the BIA’s determination that an alien

failed to satisfy the “exceptional and extremely unusual hardship” requirement for

cancellation of removal because the hardship determination is discretionary.) This Court

retains jurisdiction to review non-discretionary aspects relating to a decision denying

                                              3
cancellation of removal. Mendez-Reyes v. Att’y Gen., 428 F.3d 187, 189 (3d Cir.

2005)(reviewing whether voluntary departure constitutes a break in continual physical

presence making petitioner ineligible for cancellation of removal). Further, under the

Real ID Act of 2005, Pub.L. No. 109-13, 119 Stat. 231, our jurisdiction has been

expanded to consider “constitutional claims or questions of law raised upon a petition for

review” notwithstanding the jurisdictional limitations of § 1252(a)(2)(B). 8 U.S.C.

§ 1252(a)(2)(D); Papageorgiou v. Gonzales, 413 F.3d 356, 357-58 (3d Cir.2005). Thus,

we have jurisdiction to review any issues of law relating to the non-discretionary aspects

of the BIA’s decision.

                                              II.

         Prior to 2002, the BIA reviewed IJs’ factual findings de novo and could engage in

its own independent fact-finding. See Wang v. Ashcroft, 368 F.3d 347, 349 (3d Cir.

2004). However, for appeals filed after September 25, 2002, 8 C.F.R. § 1003.1(d)(3)(I)

and (iv) apply. See Chavarria v. Gonzalez, 446 F.3d 508, 516 (3d Cir.). Under

§ 1003.1(d)(3)(I), the BIA must defer to the IJ’s factual findings, and may only come to a

contrary conclusion after reviewing the IJ’s findings and concluding that they are clearly

erroneous.2 See Fen Yong Chen v. Bureau of Citizenship & Immigration Servs., 470 F.3d


   2
       § 2003.1(d)(I) states:
         The Board will not engage in de novo review of findings of fact determined by an
         immigration judge. Facts determined by the immigration judge, including findings
         as to the credibility of testimony, shall be reviewed only to determine whether the
         findings of the immigration judge are clearly erroneous.


                                               4
509, 514 (2d Cir.2006). Further, under § 1003.1(d)(3)(iv), the BIA is prohibited from

engaging in its own independent factfinding.3 See Filja v. Gonzales, 447 F3d 241, 253

(3d Cir. 2006).

       The requirements of § 1003.1(d)(3)(I) and (iv), that the BIA defer to the IJ’s

factual findings and not engage in independent factfinding, are non-discretionary aspects

of the decision whether to grant or deny cancellation of removal. See e.g. In re Mustafaj,

2006 WL 3088896 at *1 (BIA). Thus, we have jurisdiction to inquire whether the BIA

conformed with its own regulations in reviewing Forteau’s grant of cancellation of

removal. We find that it did not

       Instead of deferring to the IJ’s factual findings in this case, the BIA substituted its

own factual findings before weighing the equities to determine whether to grant Forteau

cancellation of removal. The criminal complaint in Forteau’s conviction alleged that

Forteau had sexual intercourse with the sixteen-year-old sister of a friend of his.

However, at the hearing, Forteau testified that he never engaged in sexual intercourse

with the sister; he claimed that he only fondled her breast. The IJ credited Forteau’s

testimony regarding the events that led to his conviction, (IJ Op. at 9.), and the BIA




   3
    § 1003.1(d)(3)(iv) states:
       Except for taking administrative notice of commonly known facts such as current
       events or the contents of official documents, the Board will not engage in
       factfinding in the course of deciding appeals.


                                              5
indicated nothing in the record which contradicted his story. The IJ also found that

Forteau had exhibited genuine remorse for his actions. (IJ Op. at 7.)

       The BIA simply ignored these findings and replaced them with its own version of

the facts. When the BIA examined the conviction it quoted the section from the criminal

complaint alleging that Forteau had sexual intercourse with a minor and did not

acknowledge that the IJ found to the contrary. (BIA Op. at 2.) The BIA also noted,

without mentioning the IJ’s opposite conclusion, that “[i]t is also questionable as to

whether the respondent exhibited remorse for or rehabilitation from his crimes during the

proceeding below because the respondent tried to explain away his actions.” Id.

       Because the BIA did not defer to the IJ’s factual findings and review them for

clear error, and because the BIA engaged in its own independent factfinding, we conclude

that this petition fo review presents no substantial question. See Third Circuit L.A.R.

27.4 and I.O.P. 10.6. Accordingly, we will summarily grant the petition for review and

remand for further proceedings. The Clerk will locate counsel willing to represent

Petitioner, if Petitioner so desires.




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