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


11-19-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-5004




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                                                              NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 05-5004


                                 ANDREW BONITTO,

                                                Petitioner,

                                           v.

                 ATTORNEY GENERAL OF THE UNITED STATES




                          On a Petition For Review of an Order
                          of the Board of Immigration Appeals
                                Agency No. A29-090-368
                           Immigration Judge: Grace A. Sease


                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  November 5, 2008

                Before: AMBRO, FISHER and JORDAN, Circuit Judges

                          (Opinion filed: November 19, 2008)




                                       OPINION


PER CURIAM

      Petitioner Andrew Bonitto, a native and citizen of Jamaica, was admitted into the

United States on or about April 6, 1986 as a nonimmigrant visitor for pleasure. On or
about June 17, 1998, his status was adjusted to that of a lawful permanent resident

pursuant to Immigration and Nationality Act (“INA”) § 245, 8 U.S.C. § 1255(a). On

January 20, 2005, Bonitto was served with a Notice To Appear, alleging that he was

removable under INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i), as an alien who after

admission has been convicted of a controlled substance violation other than a single

offense involving possession of 30 grams or less of marijuana. It was alleged that Bonitto

was convicted of conspiracy to possess marijuana in violation of § 90-98, North Carolina

General Statutes, on or about May 31, 2000, in the Orange County Superior Court.1 On

April 11, 2005, additional charges were filed under INA § 237(a)(2)(C) (a firearms

conviction), 8 U.S.C. § 1227(a)(2)(C), and § 237(a)(2)(E)(ii) (a violation of a protection

order), 8 U.S.C. § 1227(a)(2)(E)(ii). It was alleged in the amended charging document,

Form I-261, that Bonitto had been convicted of a firearms offense on or about March 2,

2004 in the Poughkeepsie (New York) City Court, in violation of NYPL § 265.01, and

that he had violated an order of protection and had been held in contempt for that

violation.2

       Bonitto sought relief in the form of cancellation of removal under INA § 240A(a),

8 U.S.C. § 1229b(a), and asylum, withholding of removal and protection under the



   1
    As a result of this conviction, Bonitto received a suspended sentence and
unsupervised probation for 12 months.
   2
    For this offense, Bonitto received a sentence of time served and three years
probation.

                                             2
Convention Against Torture (“CAT”). A hearing was held in Immigration Court on these

applications on April 26, 2005 and May 12, 2005. During the course of removal

proceedings, the Immigration Judge sustained the charges of removal on the basis of clear

and convincing evidence. At the close of the hearing, the IJ denied Bonitto’s application

for cancellation of removal as a matter of discretion, and denied his applications for

asylum, withholding of removal, and protection under the CAT, and ordered him

removed. Bonitto appealed to the Board of Immigration Appeals.

       On October 12, 2005, the Board dismissed the appeal, declining to set aside the

IJ’s finding that Bonitto failed to sustain his burden of proof with respect to asylum and

withholding of removal. With respect to his application for cancellation of removal, the

Board found no reversible error in the IJ’s determination that Bonitto did not merit

cancellation of removal. In addressing the standard for the exercise of discretion in the

context of cancellation of removal, the Board cited and applied In re: Sotelo-Sotelo, 23 I.

& N. Dec. 201 (BIA 2001), and In re: C-V-T-, 22 I. & N. Dec. 7 (BIA 1998). The Board

specifically agreed with the IJ that, after weighing Bonitto’s positive equities against his

criminal history and his lack of accountability for his actions, the discretionary denial of

cancellation of removal was justified. Bonitto has timely petitioned for review.3




   3
     In March 2006, our Clerk procedurally terminated the petition for failure to file a
brief. Bonitto thereafter successfully moved to reinstate the appeal. During the course of
these proceedings, we denied a motion for a stay of removal and Bonitto subsequently
was removed to Jamaica. He now resides in Kingston.

                                              3
       We will dismiss the petition for review for lack of jurisdiction. Although we

generally have jurisdiction to review final orders of removal under INA § 242(a)(1), 8

U.S.C. § 1252(a)(1), Bonitto was found to be removable pursuant to INA

§ 237(a)(2)(B)(i) and § 237(a)(2)(C) for having committed criminal offenses, and he has

challenged only the denial of, in the exercise of the IJ’s discretion, his application for

cancellation of removal. We thus lack jurisdiction under INA § 242(a)(2)(B) and (C) of

the jurisdictional statute, which divest us of jurisdiction over petitions for review

challenging the Board’s and IJ’s discretionary determinations, and petitions filed by

certain criminal aliens such as Bonitto. See 8 U.S.C. § 1252(a)(2)(B), (C). Although the

REAL ID Act amended INA § 242(a) to provide for jurisdiction in the courts of appeals

to review constitutional claims and questions of law raised by aliens whose petitions for

review would otherwise be outside our jurisdiction, see INA § 242(a)(2)(D), 8 U.S.C.

§ 1252(a)(2)(D), Bonitto raises no colorable constitutional claim or question of law in his

petition for review.

       Bonitto contends that the Board abused its discretion in adjudicating his

cancellation of removal application and violated his right to due process when it failed to

consider his positive equities, primarily the hardship to his U.S. citizen children, and gave

heightened consideration to minor criminal offenses that resulted in no incarceration.

Specifically, he alleged that the Board ignored its precedential decisions in Matter of

Edwards, 20 I. & N. Dec. 191 (BIA 1990), and Matter of Buscemi, 19 I. & N. Dec. 628


                                              4
(BIA 1988). See Appellant’s Br.14. He further contends that the IJ’s conclusion that he

failed to support his children was not supported by the evidence of record.4

         The government counters that, although Bonitto purports to raise a reviewable

legal question by alleging “due process” violations in claiming that the Board failed to

properly evaluate his negative and positive equities, the issues that he raises are meritless,

and therefore the jurisdiction-saving provision, INA § 242(a)(2)(D), does not apply in his

case. We agree. To be eligible for cancellation of removal under INA § 240A(a), an

alien must demonstrate that he or she has been lawfully admitted for permanent residence

for not less than 5 years, has resided in the United States continuously for 7 years after

having been admitted in any status, and has not been convicted of an aggravated felony.

8 U.S.C. § 1229b(a).5

         However, in addition to satisfying the three statutory eligibility requirements, an

applicant for cancellation of removal must also establish that he or she warrants such

relief as a matter of discretion. In re: C-V-T-, 22 I. & N. Dec. at 7. “The general

standards developed for the exercise of discretion under section 212(c) of the Act, 8

U.S.C. § 1182(c) (1994), which was the predecessor provision to section 240A(a), are

applicable to the exercise of discretion under section 240A(a).” Id. (citing Matter of

Marin, 16 I. & N. Dec. 581, 584-85 (BIA 1978)). In Sotelo-Sotelo, 23 I. & N. Dec. 201,


   4
   Bonitto has five children born in the United States. He testified that his children
would not go back to Jamaica with him but would remain with their mothers.
   5
       Bonitto’s statutory eligibility is not at issue here.

                                                  5
the Board held that an applicant for cancellation of removal under section 240A(a) need

not meet a threshold test requiring a showing of "unusual or outstanding equities" before

a balancing of the favorable and unfavorable factors will be made to determine whether

relief should be granted in the exercise of discretion. Instead, the Board “will weigh the

favorable and adverse factors to determine whether, on balance, the ‘totality of the

evidence before us’ indicates that the ‘[alien] has adequately demonstrated that he

warrants a favorable exercise of discretion and a grant of cancellation of removal under

section 240A(a) of the Act.’” Id. at 204 (quoting In re: C-V-T-, 22 I. & N. Dec. at 10).

       Therefore, in adjudicating an application for cancellation of removal, the IJ is

required to balance the positive and negative factors to determine whether discretion

should be favorably exercised. The "equities that an applicant . . . must bring forward to

establish that favorable discretionary action is warranted will depend in each case on the

nature and circumstances of the ground of [removability] sought waived and on the

presence of any additional adverse matters." Marin, 16 I. & N. Dec. at 585. In Tipu v.

Immigration & Naturalization Serv., 20 F.3d 580 (3d Cir. 1994), we generally endorsed

the Marin approach. Id. at 583. See also Katsis v. Immigration & Naturalization Serv.,

997 F.2d 1067, 1073-74 (3d Cir. 1997).

       The Board and the IJ properly applied precedent here and did not employ a

heightened standard. See Sukwanputra v. Gonzales, 434 F.3d 627, 634 (3d Cir. 2006)

(factual and discretionary determinations continue to fall outside our jurisdiction but 8


                                             6
U.S.C. § 1252(a)(2)(D) would extend to question whether Board applied wrong legal

standard in making discretionary determination). The Board and the IJ properly relied

upon Sotelo-Sotelo, 23 I. & N. Dec. 201, and In re: C-V-T-, 22 I. & N. Dec. 7, in holding

that an applicant for cancellation of removal under section 240A(a) need not meet a

threshold test requiring a showing of "unusual or outstanding equities" before a balancing

of the favorable and unfavorable factors will be made. Sotelo-Sotelo, 23 I. & N. Dec. at

204; In re: C-V-T-, 22 I. & N. Dec. at 10. Accordingly, discretion was exercised with

care and in accordance with the prevailing standards and thus this case falls outside our

jurisdiction. See Sukwanputra, 434 F.3d at 634.

       For the foregoing reasons, we will dismiss the petition for review for lack of

subject matter jurisdiction.




                                             7
