Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
3-21-2007
Brienza-Schettino v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-2848
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Case Nos: 05-2848 & 05-4393
CESAR FRANCISCO BRIENZA-SCHETTINO,
Petitioner
v.
ATTORNEY GENERAL OF THE
UNITED STATES,
Respondent
On Petition for Review of Final Decisions of the
Board of Immigration Appeals
BIA No.: A37-194-060
Immigration Judge: Henry S. Dogin
Argued December 13, 2006
Before: SMITH and ROTH, Circuit Judges,
and YOHN, District Judge*
(Filed: March 21, 2007 )
*
The Honorable William H. Yohn, Jr., Senior District Judge for the Eastern
District of Pennsylvania, sitting by designation.
1
Thomas E. Moseley (Argued)
Suite 2600
One Gateway Center
Newark, NJ 07102
Counsel for Petitioner
Pamela Perron (Argued)
Office of United States Attorney
970 Broad Street
Room 700
Newark, NJ 07102
Counsel for Respondent
OPINION
SMITH, Circuit Judge.
Cesar Francisco Brienza-Schettino seeks review of two final orders issued
by the Board of Immigration Appeals (BIA). For the reasons set forth below, we
will deny the petition for review of the first order by the BIA denying the request
to reopen Brienza’s immigration proceedings, and we will dismiss the petition for
review of the latter order because we lack jurisdiction.
I.
Brienza, a citizen of Argentina, has been a lawful permanent resident in this
country since 1982. He started dealing drugs in late 1991 and was arrested in
March 1992 as he attempted to sell a kilogram of cocaine. Brienza was charged
2
with and pleaded guilty to two counts of possession of a controlled dangerous
substance with the intent to distribute in violation of New Jersey law. He
cooperated with law enforcement authorities and was favorably treated by the state
court system, receiving a sentence of only eight years of imprisonment.
In January 1995, immigration authorities served him with an order to show
cause why he should not be deported for having been convicted of controlled
substance offenses. Although the Bergen County prosecutor requested that
immigration authorities “take no action against” Brienza, he was taken into
custody. While in custody, Brienza sought discretionary relief from deportation
under former § 212(c), 8 U.S.C. § 1182(c).
In September 1996, an immigration judge (IJ) denied, without a hearing,
Brienza’s request for § 212(c) relief and ordered him deported. Brienza filed a
notice of appeal with the BIA. Shortly thereafter, on September 30, 1996,
Congress enacted the Illegal Immigration Reform and Immigrant Responsibility
Act (IIRIRA), which repealed § 212(c) and replaced it with the procedure of
“cancellation of removal” codified at 8 U.S.C. § 1229b. This new cancellation of
removal procedure did not allow an alien convicted of any aggravated felony,
regardless of the amount of time served, to obtain relief from removal. Based on
IIRIRA, the BIA denied Brienza’s appeal.
3
During the pendency of his notice of appeal, Brienza was released from
custody and returned to his home in New Jersey. He resumed working in the
business he started and reported to the New Jersey parole authorities every week.
His wife became pregnant with their first child. After the BIA dismissed his
appeal, he received notice that he was to surrender to INS custody on August 13,
1997. Faced with deportation and the impending birth of his first child, Brienza
and his wife decided to move from New Jersey to New York, to relocate his
business, to stop reporting to the New Jersey parole authorities, and to avoid
immigration authorities.
Brienza and his wife lived in New York for several years without detection.
In 2001, the Supreme Court decided INS v. St. Cyr, 533 U.S. 289 (2001), which
concluded that application of the IIRIRA’s repeal of § 212(c) to aliens who
pleaded guilty was impermissibly retroactive. Despite this new development in
the law, Brienza and his wife decided not to pursue any remedial action. They
continued to live in New York without any difficulty until Brienza was arrested in
April 2004 for a violation of state law related to workman compensation
documentation. Although the charge was subsequently reduced to a disorderly
conduct, Brienza’s arrest resulted in the discovery of the outstanding warrants for
his arrest by the New Jersey parole officials and immigration authorities. While
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Brienza was in custody, he sought to reopen his immigration proceeding to take
advantage of the Supreme Court’s decision in St. Cyr. The BIA granted his
motion to reopen and remanded his case to IJ Dogin for a hearing.
IJ Dogin issued notice that a hearing conducted with the benefit of video
conferencing would be conducted on September 15, 2005. No objection was
raised to the video conference aspect of the hearing. On September 15, the
hearing proceeded without any problems or difficulties in transmission. During
the hearing, Brienza acknowledged that in 1994 he had been convicted of two
drug offenses. He candidly admitted that, during six to seven months in 1991-
1992, he engaged in one to two drug deals per weekend of small amounts of
cocaine. He also admitted that his last transaction involved a kilo of cocaine.
Brienza urged the IJ to find that this conduct was outweighed by his strong family
ties, the length of his residence in the United States, and the hardship his family
would experience were he deported to Argentina.
The IJ carefully considered Brienza’s application for § 212(c) relief, and
characterized the case as a “tough” one. The IJ also stated that he was “truly,
deeply sympathetic to the family, but one cannot take the law into one’s own
hands and say I will not obey.” Although the IJ found that Brienza’s family ties in
the United States, the emotional hardships to his family, and the length of his
5
residency in the United States weighed in his favor, these considerations were
outweighed by Brienza’s drug trafficking and the fact that he failed to abide by the
law, choosing instead to hide for a substantial period of time.
Shortly after the IJ denied Brienza’s application for § 212(c) relief, the New
Jersey Parole Board revoked Brienza’s parole and imposed a nine month Future
Eligibility Term. The decision explained that the nine month sentence was
warranted because Brienza had failed to comply with government orders for a
substantial number of years.
Brienza filed a timely notice of appeal from the IJ’s denial of his application
for § 212(c) relief. In his brief, Brienza argued that he had been deprived of his
right to due process by virtue of the video-conferencing which, because of his
absence, prevented his counsel from being fully effective. In addition, he asserted
that there was new evidence warranting remand, citing the new regulations
regarding § 212(c) hearings promulgated by the Department of Justice, the New
Jersey Parole Board decision, and his wife’s deteriorating health as a result of a
recurrence of myasthenia gravis.
On March 14, 2005, the BIA dismissed Brienza’s appeal of the denial of his
application for § 212(c) relief and denied the motion to remand. It explained that
“[w]e find that the Immigration Judge gave appropriate consideration and weight
6
to the positive and adverse factors present in this case. We agree with the
Immigration Judge that the facts presented established unusual and outstanding
equities, but that the multiple negative equities in this case, beginning with the
1994 drug trafficking conviction and extending to an arrest in 2004, precluded a
grant of relief as a matter of discretion.” The BIA acknowledged that Brienza had
filed new evidence with his motion to remand, but it denied the motion to remand.
Brienza sought review of the BIA’s decision.1 In addition, he moved in
New Jersey state court to vacate his guilty pleas to the 1992 state drug charges,
alleging that his plea was not knowing and intelligent as he had never been
advised of the immigration consequences of his plea. In July 2005, pursuant to a
consent order, the New Jersey state court vacated the state drug charges. At the
same time, Brienza pleaded guilty to a lesser charge of possession of a controlled
substance. He was sentenced to three years of imprisonment, with credit for time
served.
In the wake of the vacatur of his 1994 drug convictions, Brienza filed yet
1
Brienza filed a petition for habeas corpus in the United States District Court for
the District of New Jersey. Pursuant to the REAL ID Act, the petition was transferred to
this court and converted to a petition for review. In Kamara v. Attorney General, 420
F.3d 202 (3d Cir. 2005), we instructed that “we are obliged to . . . address the claims
raised in the habeas petition as if they were presented before us in the first instance as a
petition for review.” Id. at 210.
7
another motion to reopen. He cited only the fact that his 1994 convictions had
been vacated and that he had pleaded guilty to a lesser change. On August 30,
2005, the BIA denied this motion to reopen. It denied the motion as untimely in
light of the 90 day time period for new evidence motions to reopen. In the
alternative, the BIA construed the request as a motion for it to sua sponte reopen
his immigration proceedings. The BIA declined the request, explaining that the
vacated convictions were unlikely to change the merits ruling on Brienza’s
application for § 212(c) relief inasmuch as he had pleaded guilty to a drug offense,
albeit a lesser offense, and he had testified during the IJ hearing about his
involvement in handling a kilo of cocaine. The BIA also found that the health
concerns of Mrs. Brienza were an insufficient basis to reopen as the IJ had
considered that previously. It further noted no additional medical evidence had
been submitted. Brienza also petitioned for review of this order.
II.
A.
Brienza challenges the BIA’s March 14, 2005 decision affirming the IJ’s
denial of his application for discretionary relief under § 212(c) and the denial of
his motion to remand. He contends that his due process rights were violated
because the BIA failed to consider his various arguments. As this challenge
8
presents a question of law, we possess jurisdiction under 8 U.S.C. §
1252(a)(2)(D). We exercise plenary review over a claim alleging a due process
violation. Abdulrahman v. Ashcroft, 330 F.3d 587, 595 (3d Cir. 2003).
It is well settled that an alien is entitled to due process. Abdulai v. Ashcroft,
239 F.3d 542, 549 (3d Cir. 2001). In Abdulai, we observed that a “decisionmaker
must actually consider the evidence and argument that a party presents.” Id.
(internal quotation marks and citation omitted). Scrutiny of the BIA’s March 2005
decision shows that it did not mention Brienza’s argument that the video
conference hearing violated his right to due process.
We disagree with Brienza that the BIA’s failure to address this argument
warrants remand under INS v. Ventura, 537 U.S. 12, 16 (2002). Remand is
unnecessary because Brienza’s challenge to the video-conferencing was not based
on a defect that occurred during his hearing. Instead, his argument takes issue
with the fact that video-conferencing is allowed by the statute. See 8 U.S.C. §
1229a(b)(2) (providing that an IJ proceeding “may take place – (i) in person, (ii)
where agreed to by the parties, in the absence of the alien, (iii) through video
conference . . . .”) (emphasis added). The BIA has no authority to rule on the
constitutionality of this statutory provision. See Marrero v. INS, 990 F.2d 772,
778 (3d Cir. 1993) (observing that “BIA did not have jurisdiction to adjudicate
9
constitutional issues”) (citing Sewak v. INS, 900 F.2d 667, 670 (3d Cir. 1990)).
For that reason, we may consider this aspect of Brienza’s petition for review.
We conclude, however, that there is no merit to Brienza’s due process
claim. In Wilson v. Ashcroft, 350 F.3d 377, 381 (3d Cir. 2003), we observed that
there “would be no due process violation in the absence of prejudice.” Brienza
failed to identify any problems or difficulties in the video-conferencing that
disadvantaged him. Cf. Rusu v. INS, 296 F.3d 316 (4th Cir. 2002) (acknowledging
that the video conference was “plagued by communication problems” and
technological difficulties). Instead, he simply contends that he was denied the
opportunity to participate in decisions as the trial unfolded about calling additional
witnesses such as his mother or his oldest child. This contention fails to establish
that these witnesses would have contributed something that would have altered the
IJ’s decision. In the absence of any demonstrated prejudice, his due process claim
based on the video-conferencing lacks merit.
Brienza also claims that his due process rights were infringed because the
BIA did not address his other arguments alleging error by the IJ in denying his
application for § 212(c) relief. We disagree. Brienza’s other arguments simply
represented his dissatisfaction with the weight the IJ accorded various factors in
deciding that § 212(c) relief was not warranted. Although the BIA did not
10
explicitly discuss each of the factors Brienza identified as error, it implicitly
considered these alleged errors in deciding that the IJ had not erred by finding that
the multiple negative equities outweighed the positive equities.
B.
Brienza also challenges the March 14, 2005 decision by the BIA refusing to
remand his immigration proceeding for consideration of new evidence. We note
that the BIA acknowledged that the DOJ’s new final rule, the New Jersey Parole
Board decision, and the medical evidence regarding his wife’s health status
constituted new evidence. It concluded, however, that remand was not warranted.
Because the denial of a motion to reopen for new evidence is a final order,
we have jurisdiction under 8 U.S.C. § 1252(a). Sevoian v. Ashcroft, 290 F.3d 166,
171 (3d Cir. 2002). We review any findings of fact for substantial evidence and
the ultimate denial of the motion for an abuse of discretion. Korytnyuk v.
Ashcroft, 396 F.3d 272, 285 (3d Cir. 2005).
We have considered Brienza’s arguments and find no abuse of discretion by
the BIA in denying the motion to remand. The new rule, according to Brienza,
undermines the IJ’s finding that his failure to comply with the deportation order
was a negative equity because the rule shows that there were other aliens who
failed to comply with deportation orders and that if he had been deported he would
11
have been barred from seeking relief under § 212(c). The new rule, however,
points out that aliens who were removed were not allowed to seek § 212(c) relief
because they had had an opportunity to challenge the denial of their applications
for § 212(c) relief in administrative and judicial proceedings, as well as the
opportunity to apply for a stay in anticipation of the Supreme Court’s ruling in St.
Cyr. This aspect of the rule, which Brienza ignores, supports the weight the IJ
accorded to Brienza’s refusal to comply with the deportation order. As a result,
the new rule would add nothing to the IJ’s calculus. We do not find an abuse of
discretion by the BIA in denying Brienza’s motion to reopen.
Nor do we find that the New Jersey Parole Board decision imposing the
minimal period of incarceration warranted remand. According to Brienza, the
minimal punishment he received reflected the Board’s assessment that his
probation violations were minor and technical in nature. It follows, in Brienza’s
view, that the Board’s decision demonstrates that the IJ placed too much weight on
the fact that Brienza had failed to abide by the law. We cannot ignore that the
Board’s decision, like that of the IJ’s, found that Brienza’s decision to abscond for
a substantial period of time, and to remain at large after the Supreme Court’s
decision in St. Cyr, warranted revocation of his parole. The New Jersey Parole
Board explained that the minimal period of incarceration was sufficient in light of
12
Brienza’s circumstances. Thus, we find nothing in the Board’s decision which
undermines the IJ’s decision denying Brienza’s application for relief under §
212(c) and find no abuse in the denial of the motion to remand.
Finally, other than acknowledging that Brienza’s wife’s medical condition
constituted new evidence, the BIA did not explicitly discuss his wife’s status. We
cannot find that the BIA abused its discretion by denying the motion, however, in
light of the BIA’s consideration of the evidence, including the hardship to the
family, and its conclusion that the IJ had not erred in according significant weight
to Brienza’s multiple negative equities. We will deny the petition for review of
the March 14, 2005 order by the BIA.
III.
Brienza also petitioned for review of the BIA’s August 30, 2005 decision
denying Brienza’s motion to reopen to consider the fact that his 1994 convictions
had been vacated. As we noted above, we have jurisdiction under 8 U.S.C. §
1252(a) because the denial of a motion to reopen for new evidence is a final order.
Sevoian v. Ashcroft, 290 F.3d 166, 171 (3d Cir. 2002).
The BIA concluded the motion was untimely because it was filed more than
90 days after the March 14, 2005 decision. This finding was correct. We find no
abuse of discretion in denying the motion on this basis.
13
The BIA also construed the motion as a request to sua sponte consider
reopening under 8 C.F.R. § 1003.2(a). It declined the request, explaining that,
notwithstanding the vacatur, Brienza had pleaded guilty to the lesser offense of
possession which made him removable, and had admitted during his testimony at
the IJ hearing that he had engaged in dealing drugs and that his last transaction
before his arrest involved trying to sell a kilo of cocaine.
Brienza argues that the BIA erred because our decision in Pinho v.
Gonzales, 432 F.3d 193 (3d Cir. 2005), instructs that a conviction that has been
substantively vacated may not be considered for immigration purposes. Brienza’s
argument is persuasive at first blush, but we lack jurisdiction to consider it under
Calle-Vujiles v. Ashcroft, 320 F.3d 472 (3d Cir. 2003). In Calle-Vujiles, we
declared that § 1003.2(a), which provided for a sua sponte reopening by the BIA,
“offer[ed] no standard governing the agency’s exercise of discretion.” Id. at 475.
“Because the BIA retains unfettered discretion to decline to sua sponte reopen or
reconsider a deportation proceeding, this court is without jurisdiction to review a
decision declining to exercise such discretion to reopen or reconsider the case”
under the lessons of Heckler v. Chaney, 470 U.S. 821, 830 (1985). Calle-Vujiles,
14
320 F.3d at 475.2 Accordingly, we will dismiss the second petition for review
because we lack jurisdiction.
2
We note, however, that we find nothing in Pinho that would suggest that if a
conviction is substantively vacated, that the BIA or an IJ is precluded from considering
testimony by an alien regarding the nature of his past criminal conduct. Nor are we
troubled by the BIA’s erroneous statement that the IJ had considered Brienza’s wife’s
medical condition. It is true that the IJ had not considered that evidence. But the BIA
had previously considered the evidence, and it specifically noted that the motion to reopen
did not attach any new evidence of his wife’s current medical status. Because the
regulations instruct that a motion to reopen based on new evidence “shall be supported by
affidavits or other evidentiary material,” 8 C.F.R. § 1003.2(c), and because there was no
new evidence in this regard, there was nothing new for the BIA to consider in that regard.
15