United States Court of Appeals
For the First Circuit
No. 06-2590
SEIR AMINABED CRUZ-CAMEY
Petitioner,
v.
ALBERTO R. GONZALES,
UNITED STATES ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Torruella, Circuit Judge,
Selya and Cyr, Senior Circuit Judges.
Matthew S. Cameron, for petitioner.
Greg D. Mack, Senior Litigation Counsel, Office of Immigration
Litigation, U.S. Department of Justice, with whom Peter D. Keisler,
Assistant Attorney General, and Terri J. Scadron, Assistant
Director, were on brief for respondent.
September 11, 2007
CYR, Senior Circuit Judge. Seir Aminabed Cruz-Camey, a
native and citizen of Guatemala, petitions for review of an order
of the Board of Immigration Appeals (BIA) vacating an immigration
judge’s (IJ’s) decision to grant petitioner’s application for
cancellation of removal.
Cruz-Camey entered the United States in 1995, was granted
asylum, and in 1996 became a lawful permanent resident. In March
2004, he was arrested for driving under the influence (DUI) and for
possession of cocaine. Although these charges were continued
without a finding, he was ordered to complete a substance abuse
program during his one-year probationary sentence. Within the
year, however, petitioner once again was arrested for DUI. As a
result, the finding on the March 2004 charges was converted from
“no finding” to “guilty,” he received and served a thirty-day
sentence, and his driver’s license was revoked. In November 2005,
petitioner was arrested a third time on DUI charges, whereupon he
received a six-month sentence for his second DUI conviction, and
twenty-four months for the third DUI conviction (with sixteen
months suspended).
In March 2006, Cruz-Camey was placed in removal
proceedings, based on his 2004 conviction for cocaine possession.
See 8 U.S.C. § 1227(a)(2)(B)(i). Petitioner conceded removability,
but applied for cancellation of removal on the ground that his
substance abuse and arrests stemmed from a treatable and transitory
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bout of depression. Following an evidentiary hearing, the IJ
granted the petitioner’s application for cancellation of removal,
citing, inter alia, his acceptance of responsibility for the
dangerousness of his criminal conduct, his close family ties and
gainful employment in the United States, as well as his promises
actively to continue substance-abuse rehabilitation. On appeal,
however, the BIA vacated the grant of cancellation, finding no
affirmative record evidence that Cruz-Camey either had undertaken
or would undertake genuine efforts at rehabilitation, then ordered
Cruz-Camey removed from the United States. In due course, Cruz-
Camey petitioned for review of the BIA decision.1
Cruz-Camey has conceded removability under §
1227(a)(2)(B)(i). Pursuant to 8 U.S.C. § 1229b(a), the Secretary
has the discretion to cancel removal, and absent any colorable
constitutional issue or question of law, we lack jurisdiction to
review the Secretary's exercise vel non of that discretion, see id.
§ 1252(a)(2)(B)(i), 1252(a)(2)(C); Elysee v. Gonzales, 437 F.3d
221, 223 (1st Cir. 2006). The Cruz-Camey petition for review
raises no such colorable constitutional or legal issue,2 but merely
1
In November 2006, we denied a motion to stay petitioner's
removal pending the outcome of this petition for review, citing our
probable lack of appellate jurisdiction, and petitioner is no
longer in the United States.
2
In an effort to circumvent the jurisdictional bar, Cruz-Camey
unsuccessfully attempts to recast his challenge to the BIA’s
discretionary judgment as a "due process" claim. That effort will
not wash. See Martinez-Rosas v. Gonzales, 424 F.3d 926, 930 (9th
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challenges the manner in which the BIA balanced the various
positive and negative factors which typically inform the exercise
of its discretion under § 1229b(a). Id. (noting that challenges to
the BIA’s balancing of the equities and other “cancellation”
criteria cannot be reviewed under § 1252(a)(2)(B)(i)). We lack
jurisdiction to reach the merits of this claim.
The petitioner presents but one legal argument: that the
BIA acted ultra vires in not only vacating the IJ’s cancellation of
removal, but in also affirmatively ordering petitioner removed from
the United States. Petitioner insists that only the IJ has the
authority to enter such an order in the first instance, and that
the BIA should have remanded the case to the IJ for further
proceedings on the removability issue. That rationale has been
adopted by but one circuit court. See Molina-Camacho v. Ashcroft,
393 F.3d 937, 940-41 (9th Cir. 2004). Almost simultaneously with
the oral argument in the case at bar, however, an en banc panel of
the Ninth Circuit expressly overruled Molina-Camacho. Lolong v.
Gonzales, 484 F.3d 1173, 1177 (9th Cir. 2007) (en banc) (noting
that an IJ’s order cancelling removal implicitly includes a
threshold determination that the petitioner is otherwise subject to
removal, and a BIA reversal of cancellation simply reinstates the
Cir. 2005) (noting that “traditional abuse of discretion challenges
recast as alleged due process violations do not constitute
colorable constitutional claims that would invoke our
jurisdiction”).
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IJ’s implicit order of removability); see also Lazo v. Gonzales,
462 F.3d 53, 54-55 (2d Cir. 2006); Delgado-Reynua v. Gonzales, 450
F.3d 596, 600-01 (5th Cir. 2006). We find the unanimous reasoning
of our sister circuits on this matter unimpeachable, and
accordingly reject the Cruz-Camey ultra vires argument.
The portion of the petition seeking review of the BIA’s
discretionary denial of cancellation of removal is dismissed for
want of appellate jurisdiction, and the remainder of the petition
is denied on the merits.
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