Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
12-7-2007
Moreno v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-3597
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-3597
________________
SERGIO MORENO,
Petitioner
v.
ATTORNEY GENERAL OF THE
UNITED STATES
______________________________________
On Petition for Review of a Decision of the
Board of Immigration Appeals
(Agency No. A91-297-426)
Immigration Judge: Daniel A. Meisner
_______________________________________
Submitted Under Third Circuit L.A.R. 34.1(a)
December 5, 2007
Before: SLOVITER, BARRY and WEIS, Circuit Judges
(Opinion Filed: December 7, 2007)
_______________________
OPINION
_______________________
PER CURIAM
Sergio Moreno, a native and citizen of Mexico, petitions for review of a final order
of the Board of Immigration Appeals (“BIA”). For the following reasons, we will dismiss
in part and deny in part the petition for review.
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I.
Moreno entered the United States in 1981 and became a lawful permanent resident
in 1990. In 1998, he was convicted in a New York state court of misdemeanor possession
of cocaine in the seventh degree. And in 2005, Moreno was convicted in New York of
criminal facilitation in the fourth degree.1 See NEW YORK PENAL LAW § 145.00.
In July 2006, Moreno was charged with removability for having been convicted of
a controlled substance offense. See 8 U.S.C. § 1227(a)(2)(B)(i). The government also
alleged that Moreno’s conviction for criminal facilitation constituted a drug-trafficking
aggravated felony. See 8 U.S.C. § 1227(a)(2)(A)(iii). The Immigration Judge (“IJ”)
concluded that Moreno was removable for having committed a controlled-substance
offense, but that he was not an aggravated felon. That decision left Moreno eligible for
cancellation of removal, which the IJ denied as a matter of discretion. See 8 U.S.C. §
1229b. A single member of the BIA summarily affirmed the IJ’s decision without
opinion pursuant to 8 C.F.R. § 1003.1(e)(4).
Moreno, who at all times has acted pro se, filed a timely petition for review.
II.
The government argues that we lack jurisdiction to consider Moreno’s petition
because he seeks review of the discretionary denial of cancellation of removal under 8
U.S.C. § 1229b. The Immigration and Nationality Act (“INA”) provides that “no court
1
Moreno has also been convicted of theft (1986), on a gun charge (1990), and for
driving under the influence (1992).
2
shall have jurisdiction to review . . . any . . . 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. . . .” 8 U.S.C. § 1252(a)(2)(B)(ii). However, 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 8 U.S.C. § 1252(a)(2)(D).
The decision to grant or deny relief pursuant to § 1229b is a discretionary one. See
Mendez-Moranchel v. Ashcroft, 338 F.3d 176, 178 (3d Cir. 2003). Therefore, to the
extent that Moreno challenges the IJ’s and BIA’s discretionary conclusions that he does
not warrant cancellation of removal under §1229(b), we lack jurisdiction.2 Id.
We do, however, have jurisdiction over Moreno’s challenge to the BIA’s decision
to assign the case to one of its members who then issued a summary affirmance without
opinion. See Smriko v. Ashcroft, 387 F.3d 279, 295-96 (3d Cir. 2004). The BIA is
entitled to streamline its caseload, but it must do so in accordance with the applicable
regulations, which permit a BIA member to affirm without opinion if the “issues on
appeal are squarely controlled by existing [BIA] or federal court precedent and do not
involve the application of precedent to a novel factual situation,” or if the “factual and
2
We note that Moreno’s challenge to the decision to deny cancellation of removal is
premised on his assertion that he is not an aggravated felon because his conviction for
criminal facilitation is not a drug-trafficking crime under 8 U.S.C. § 1227(a)(2)(A)(iii).
However, the IJ determined that Moreno was not an aggravated felon. Rather, the IJ
found him removable for committing a controlled substance offense (the 1998 conviction
for possession of cocaine), and then denied his application for cancellation of removal as
a matter of discretion.
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legal issues . . . are not so substantial that the case warrants the issuance of a written
opinion.” 8 C.F.R. § 1003.1(e)(4)(i). We may grant a petition for review where we
conclude that the BIA’s decision to streamline a case was “arbitrary and capricious.”
Smriko, 387 F.3d at 296.
After fully reviewing the IJ’s decision, we conclude that there is nothing in the
record to suggest that the BIA’s decision to conduct a streamlined review of Moreno’s
appeal was arbitrary and capricious. There is no question that Moreno was removable
under 8 U.S.C. § 1227(a)(2)(B)(i) because he was convicted of possession of cocaine.
The IJ then applied the requisite balancing test pursuant to Matter of C-V-T-, 22 I. & N.
Dec. 7 (BIA 1998), to determine whether granting Moreno’s request for cancellation of
removal was appropriate. The IJ found that the factors in Moreno’s favor (his 25-year
continuous residence in the United States and the presence of numerous family members
in the United States) were outweighed by the adverse factors, such as his extensive
criminal record, long-term drug addiction, and eight-year failure to file an income tax
report. The IJ also noted that Moreno does not support a family, and that none of his
siblings came to the hearing to support him or wrote a letter on his behalf. Based on these
facts, we cannot say that the BIA’s use of the summary affirmance procedure in this case
was arbitrary or capricious. Eligibility for removal and cancellation of removal are
controlled by well-established precedent, and Moreno’s case presented no substantial or
novel factual or legal issues to warrant a written opinion.
For these reasons, and after careful consideration of the record and the parties’
4
contentions, we will grant the government’s motion to dismiss for lack of jurisdiction as
to the portions of Moreno’s petition for review seeking to challenge the conclusion that he
does not warrant a favorable exercise of discretion for relief under 8 U.S.C. § 1229b. We
will deny the petition as to Moreno’s contention that the BIA improperly utilized the
streamlining procedure of 8 C.F.R. § 1003.1(e)(4).
5