                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 15-1113
                                       ___________

                                ROBERT F. SKEFFERY,
                                AKA Howard Woodhouse,
                                              Petitioner

                                             v.

         ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA,
                                       Respondent
                 ____________________________________

                       On Petition for Review of an Order of the
                            Board of Immigration Appeals
                             (Agency No. A037-755-660)
                     Immigration Judge: Honorable Andrew Arthur
                      ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                     July 1, 2015
             Before: AMBRO, VANASKIE and SLOVITER, Circuit Judges

                               (Opinion filed: July 2, 2015)
                                      ___________

                                        OPINION*
                                       ___________

PER CURIAM

       Robert F. Skeffery, a native and citizen of Jamaica, petitions for review of the

Board of Immigration Appeals’ (BIA or Board) order denying his motion to reopen

*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
deportation proceedings. For the following reasons, we will dismiss in part and deny in

part the petition for review.

       Skeffery was placed in deportation proceedings in 1994, based on convictions for

controlled substance violations. He was deported in July 1996, but reentered the United

States. In 2003, he was convicted in Pennsylvania of committing additional crimes,

including possession of marijuana and firearms offenses. Skeffery successfully moved to

reopen his proceedings, and the Government lodged an additional charge of deportability

under former Immigration and Nationality Act (INA) § 241(a)(2)(C) [8 U.S.C. §

1227(a)(2)(C)] (providing that (“[a]ny alien who at any time after admission is convicted

under any law of . . . possessing . . . a firearm . . . in violation of any law is deportable.”).

In June 2007, Skeffery appeared pro se before an Immigration Judge (IJ), who found him

deportable as charged and ineligible for relief. Skeffery waived appeal. 1

       In October 2013, Skeffery filed a motion to reopen the proceedings, arguing that

his waiver of his right to appeal was not knowing and that he was not informed of his


1
  In July 2007, Skeffery was again deported to Jamaica. He returned to the United States
in December 2009, and applied for entry using altered Canadian identification
documents. In 2013, he was convicted in the United States District Court for the
Southern District of California of attempted entry after deportation. See INA § 276 [8
U.S.C. § 1326]. The Government also placed Skeffery in removal proceedings on the
grounds that he attempted to gain entry into the United States by fraudulently or willfully
misrepresenting a material fact, INA § 212(a)(6)(C)(i) [8 U.S.C. § 1182(a)(6)(C)(i)], and
that he did not have a valid, unexpired immigrant visa, § 212(a)(7)(A)(i)(I) [8 U.S.C.
§ 1182(a)(7)(A)(i)(I)]. According to the Government, “[t]hose removal proceedings are
separate and apart from the deportation proceedings at issue in the instant case and Mr.
Skeffery’s removal proceedings are ongoing.” Res’p’s Br., 7 n.4.

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eligibility for relief under former INA § 212(c) [8 U.S.C. § 1182(c)]. The IJ denied the

motion, but the BIA remanded for further consideration in light of its decision in In re

Abdelghany, 26 I. & N. Dec. 254, 260 n.11 (BIA 2014) (clarifying that “repeal of section

212(c) is inapplicable to any alien in deportation proceedings, even if those proceedings

commenced after April 24, 1996, and even where a conviction providing a basis (or an

additional basis) for deportability was entered on or after April 1, 1997.”). On remand,

the IJ found that Skeffery’s motion to reopen was untimely and concluded that it was not

appropriate to reopen the proceedings in the exercise of discretion. The IJ further

explained that “[w]hile [Skeffery] may be statutorily eligible to apply for 212(c) relief

. . ., he has not established that he warrants a favorable exercise of discretion.” 2 The BIA

upheld the IJ’s decision, concluded that there was no basis for sua sponte reopening, and

dismissed Skeffery’s appeal. Skeffery filed a petition for review.

       Under INA § 242(a)(1) [8 U.S.C. § 1252(a)(1)], we have jurisdiction to review

final orders of removal, including the denial of a motion to reopen any such final order. 3


2
  The IJ “assign[ed] weight” to Skeffery’s family ties in the United States, his residence
in this country “for at least fifteen years,” and letters of support from family and friends.
The IJ concluded, however, that those factors were outweighed by Skeffery’s “extensive
criminal history” (which included eight controlled substance convictions and a firearms
conviction) and “multiple unlawful reentries [which] demonstrate a flagrant disregard for
the immigration laws of the United States.”
3
 Skeffery argues that because he was placed in deportation proceedings in 1994, and the
challenged final deportation order was entered in 2007, the transitional rules of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) apply. See
Bakhtriger v. Elwood, 360 F.3d 414, 417 n.2 (3d Cir. 2004) (stating that “[a]ll removal
cases commenced before April 1, 1997, in which a final order of deportation was filed
                                            3
See Cruz v. Att’y Gen., 452 F.3d 240, 246 (3d Cir. 2006); Oliva-Ramos v. Att’y Gen.,

694 F.3d 259, 270 (3d Cir. 2012) (stating that the decision to deny a motion to reopen is

reviewed for abuse of discretion). But the jurisdiction-stripping provisions of INA

§ 242(a)(2) [8 U.S.C. § 1252(a)(2)] may limit or eliminate our jurisdiction to review such

denials. For instance, “no court shall have jurisdiction to review . . . any other 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.” INA

§ 242(a)(2)(B)(ii) [8 U.S.C. § 1252(a)(2)(B)(ii)]. In addition, when an alien is removable

for having committed an offense enumerated in INA § 242(a)(2)(C), we lack jurisdiction

to review a denial of a motion to reopen. 4 But 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 Cruz, 452 F.3d at 246-47; INA § 242(a)(2)(D) [8 U.S.C.

§ 1252(a)(2)(D)].




after October 30, 1996 are subject to the transitional rules.”). But the Government
correctly notes that, pursuant to the REAL ID Act of 2005, a challenge to an order of
deportation in a “transitional rules” case is to be treated as if it had been filed under the
Immigration and Nationality Act § 242 [8 U.S.C. § 1252]. See Gov’t’s Br., 2 n.2; see
also Joseph v. Att’y Gen., 421 F.3d 224, 229 (3d Cir. 2005).
4
  One of the offenses enumerated in § 242(a)(2)(C) [8 U.S.C § 1252(a)(2)(C)] is INA
§ 237(a)(2)(C) [8 U.S.C. § 1227(a)(2)(C)], which is a recodification of § 241(a)(2)(C),
the basis for Skeffery’s deportability. Cf. McAllister v. Att’y Gen., 444 F.3d 178, 184
(3d Cir. 2006) (holding that the jurisdictional bar of § 242(a)(2)(C) applies when the
“actual basis for the final order of removal was the alien’s commission of one of the
enumerated offenses.”).
                                              4
       Initially, we note that Skeffery’s petition for review is timely only as to the BIA’s

denial of his motion to reopen. See INA § 242(b)(1) [8 U.S.C. § 1252(b)(1)] (providing

that a “petition for review must be filed not later than 30 days after the date of the final

order of removal”). Therefore, we cannot review his claim that the IJ violated his due

process rights by failing to notify him of eligibility for § 212(c) relief, under 8 C.F.R.

§ 1240.11(a)(2), during his June 2007 deportation hearing. Furthermore, to the extent

that Skeffery challenges the Board’s conclusion that he does not warrant the favorable

exercise of discretion for relief under § 212(c), we lack jurisdiction. See INA

§ 242(a)(2)(B)(ii); INS v. St. Cyr, 533 U.S. 289, 325 (2001) (stating that the decision to

grant or deny relief pursuant to former section 212(c) is a discretionary one).

       Skeffery also asserts that reopening was warranted because Abdelghany rendered

him eligible for § 212(c) relief. Although we retain jurisdiction to consider questions of

law related to statutory eligibility for § 212(c) relief, see Lupera-Espinoza v. Att’y Gen.,

716 F.3d 781, 785 (3d Cir. 2013), the IJ and the BIA did not assess Skeffery’s eligibility.

Instead, the IJ held that “while [Skeffery] may be statutorily eligible to apply for § 212(c)

relief . . . he has not established that he warrants a favorable exercise of discretion.” See

INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general rule courts and agencies are

not required to make findings on issues the decision of which is unnecessary to the results

they reach.”). Moreover, there is no merit to Skeffery’s argument that the IJ and the BIA

improperly considered as an adverse factor his convictions that occurred after he was first

ordered deported in 1995. Cf. Parcham v. INS, 769 F.2d 1001, 1005 n.2 (4th Cir. 1985)
                                              5
(stating that “the Attorney General is entitled to consider the facts as they exist at the time

he acts.”); Matter of Marin, 16 I. & N. Dec. 581, 584 (BIA 1978) (noting that adverse

factors in § 212(c) determination include recency of criminal record). Finally, contrary to

Skeffery’s suggestion, we generally lack jurisdiction to review the BIA’s refusal to

reopen sua sponte because the Board’s authority is committed to its unfettered discretion

and there is no meaningful standard against which the exercise of that discretion can be

judged. See Cruz, 452 F.3d at 249-50. Skeffrey does not meaningfully allege that the

Board relied on an incorrect legal premise in declining to exercise its sua sponte authority

to reopen. See Pllumi v. Att’y Gen., 642 F.3d 155, 160 (3d Cir. 2011).

        For the foregoing reasons, we will dismiss the petition for review in part and deny

it in part.




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