                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-7-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3024




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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                     No. 05-3024


                                 MILTON ASHLEY,
                                            Petitioner,

                                           v.

                ATTORNEY GENERAL OF THE UNITED STATES,
                                      Respondent.


                   PETITION FOR REVIEW OF A DECISION OF
                    THE BOARD OF IMMIGRATION APPEALS
                            Agency No. A 90 579 180


                       Submitted Under Third Circuit LAR 34.1(a)
                                    June 28, 2006


          Before: BARRY, VAN ANTWERPEN and SILER,* Circuit Judges


                          (Opinion Filed: September 7, 2006)


                                       OPINION




SILER, Circuit Judge


   *
     The Honorable Eugene E. Siler, Senior Circuit Judge, United States Court of Appeals
for the Sixth Circuit, sitting by designation.
       Petitioner Milton Ashley appeals the Board of Immigration Appeals’ (“BIA”) reversal of the

Immigration Judge’s (“IJ”) grant of discretionary waiver of deportation under 8 U.S.C. § 1182(c),

and the subsequent denial of his motion to reopen and reconsider. For the following reasons, the

petition is dismissed in part and denied in part.

                                                    I.

       Ashley, a citizen of Jamaica, was ordered to be deported under 8 U.S.C. § 1182(a)(2) which

allows for removal for certain crimes, including serious sex offenses. In 1995 Ashley pled guilty to

sexually molesting his 12 year-old niece and was sentenced to probation and no jail time above what

he served while awaiting arraignment. He sought a discretionary waiver of deportation under 8

U.S.C. § 1182(c).2 The IJ granted relief on the bases that Ashley was forthcoming about his guilt

and accepted responsibility; he had completed his probation and had a clean record since; he held

the same job for 14 years and his employer even came to testify on his behalf; his children depended

on his income (though they are grown); he had successfully registered under Megan’s law as a sex

offender and had kept his distance from his victim; and he was a valuable member of his community

and did not pose a threat. The BIA reversed, stating that although the equities in favor of Ashley

were “noteworthy,” they were insufficient to overcome the heinousness of his crime. The BIA

further noted that although part of Ashley’s sentence was to undergo psychotherapy, his failure to

do so, despite his successful completion of probation, was “worrisome.”

       The BIA denied Ashley’s motion to reopen in order to submit a psychologist’s report that he



   2
     This section on its face applies to aliens re-entering the country. It also applies to a lawfully
admitted resident alien facing deportation, but who did not depart the United States prior to
committing the acts that rendered him deportable. See Tipu v. INS, 20 F.3d 580, 582 (3d Cir.
1994).

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was unlikely to recidivate. Ashley also filed a petition for a writ of habeas corpus with the district

court, which was transferred to this court under the REAL ID Act of 2005.

                                                  II.

                                                  A.

       The government contends that there is no jurisdiction to hear any of Ashley’s claims.

Jurisdiction to hear constitutional challenges is vested in this court by 8 U.S.C. § 1252(a)(2)(D).

However, we lack jurisdiction to review the denial of the motion to reopen.               8 U.S.C. §

1252(a)(2)(B)(ii) forecloses review of “any . . . decision or action of the Attorney General or the

Secretary of Homeland Security the authority for which is specified under this subchapter to be in

the discretion of the Attorney General or the Secretary of Homeland Security, other than the granting

of relief under [the asylum statute].” (Emphasis added.). “[T]his subchapter” refers to 8 U.S.C. §§

1151 to 1378. See Urena-Tavarez v. Ashcroft, 367 F.3d 154, 158 (3d Cir. 2004). Here, discretion

is vested in the Attorney General under 8 U.S.C. § 1182(c). Therefore, there is no jurisdiction to

review the denial of such discretionary relief. For the same reason there is also no jurisdiction to

review a motion to reconsider or reopen an unfavorable determination under 8 U.S.C. § 1182(c).

See Vargas v. Att’y Gen., 151 Fed. App’x 134, 136 (3d Cir. Oct. 12, 2005) (“just as our power to

review a final order is circumscribed by § 1252(a)(2)’s various jurisdiction-stripping provisions, our

jurisdiction to entertain an attack on that order mounted through filing of a motion to reopen is

equally curtailed.”) (citing Assaad v. Ashcroft, 378 F.3d 471, 474 (5th Cir. 2004)).

       Thus, we have jurisdiction to review the due process claims, but lack jurisdiction to review

the denial of the discretionary waiver or for reopening or reconsideration of that denial. Accordingly,

we dismiss the latter portion of the petition on that basis.


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                                                B.

       Ashley contends that he was denied due process when the BIA denied his petition for a

waiver of deportation under 8 U.S.C. § 1182(c) because the BIA’s opinion (1) was too short as

compared to the IJ’s opinion, (2) failed to adhere to BIA precedent, and (3) was an invasion of the

BIA’s adjudicative independence and foreclosed individualized review. We review claims of

constitutional violations allegedly committed during deportation proceedings de novo. See

Bonhometre v. Gonzales, 414 F.3d 442, 446 (3d Cir. 2005).

       During the removal process the procedural protections accorded to aliens “measure less than

the panoply available to a criminal defendant.” United States v. Torres, 383 F.3d 92, 104 (3d Cir.

2004) (citing Dia v. Ashcroft, 353 F.3d 228, 238-39 (3d Cir. 2003) (en banc)). “[D]ue process

requires that an alien who faces [removal] be provided (1) notice of the charges against him, (2) a

hearing before an executive or administrative tribunal, and (3) a fair opportunity to be heard.” Id.

at 104 (internal quotations omitted). Ashley does not contend that he failed to receive any of these

constitutional guarantees.

       Rather, Ashley’s argument is that the opportunity afforded him was not individualized and

not substantively “fair” because the BIA was predisposed to denying his request for discretionary

relief based upon “Operation Predator,” an alleged policy in the Department of Homeland Security

mandating the deportation of sex offenders. However, Ashley did receive an individualized

determination because the IJ and BIA weighed the equities particular to his case. See De Gonzales

v. INS, 996 F.2d 804, 810-11 (6th Cir. 1993). To the extent Ashley seeks more of a guarantee, he

lacks any support. Even assuming, as Ashley contends, that Operation Predator bears upon the

BIA’s substantive determinations in sex offender cases, we have consistently rejected due process


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challenges attacking the standards for granting or denying discretionary relief. For instance, in

Torres, 383 F.3d at 104, we held that because discretionary relief is “a matter of grace rather than

of right, aliens do not have a due process liberty interest in consideration for such relief.” Then, in

Hernandez v. Gonzales, 437 F.3d 341, 346 (3d Cir. 2006), we held that there could be no due process

violation in the denial of discretionary relief under § 1182(c) because “Aliens who seek only

discretionary relief from deportation have no constitutional right to receive that relief.” Thus,

because Ashley had no right to relief from deportation and cannot establish an entitlement to such

relief, he cannot demonstrate a due process violation stemming from the policy. See also Pinho v.

INS, 249 F.3d 183, 189 (3d Cir. 2001) (suspension of deportation is discretionary relief that does not

impair any vested rights and does not give rise to due process violations).

        Ashley’s two principal cases are distinguishable. First, he relies on Awolesi v. Ashcroft, 341

F.3d 227, 232-33 (3d Cir. 2003), for the proposition that the BIA’s failure to issue a fully reasoned

opinion precluded meaningful judicial review. But Awolesi addressed whether an opinion was

sufficiently detailed to determine whether the BIA’s findings of fact were based upon substantial

evidence. Id. It did not involve a purely legal issue or an exercise of discretion. Here, the BIA

accepted the IJ’s factual findings but weighed the equities represented by those facts differently.

Therefore, there was no need for a reasoned elaboration of the factual issues.

        Second, Ashley relies on De Gonzales, 996 F.2d at 810-11, for the proposition that a per se

policy of denying discretion could itself amount to an abuse of discretion. First, that case was on

direct review and there was no due process challenge. On the other hand, we have held that,

generally, errors constituting an abuse of discretion do not necessarily rise to due process violations.

See Torres, 383 F.3d at 104. Second, De Gonzales nonetheless affirmed the denial of discretionary


                                                   5
relief on the basis that the BIA had addressed and weighed all the relevant factors particular to that

case. Id. Likewise, here, the BIA did not quarrel with the IJ’s designation of factors as equities, but

it noted that it viewed sex crimes as serious offenses and that it did not consider Ashley’s good

character and reformed lifestyle as sufficient to merit discretionary relief.

       We find the remainder of Ashley’s contention are without merit.

       Petition DISMISSED in part and DENIED in part.




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