Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
11-19-2008
Bonitto v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-5004
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-5004
ANDREW BONITTO,
Petitioner,
v.
ATTORNEY GENERAL OF THE UNITED STATES
On a Petition For Review of an Order
of the Board of Immigration Appeals
Agency No. A29-090-368
Immigration Judge: Grace A. Sease
Submitted Pursuant to Third Circuit LAR 34.1(a)
November 5, 2008
Before: AMBRO, FISHER and JORDAN, Circuit Judges
(Opinion filed: November 19, 2008)
OPINION
PER CURIAM
Petitioner Andrew Bonitto, a native and citizen of Jamaica, was admitted into the
United States on or about April 6, 1986 as a nonimmigrant visitor for pleasure. On or
about June 17, 1998, his status was adjusted to that of a lawful permanent resident
pursuant to Immigration and Nationality Act (“INA”) § 245, 8 U.S.C. § 1255(a). On
January 20, 2005, Bonitto was served with a Notice To Appear, alleging that he was
removable under INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i), as an alien who after
admission has been convicted of a controlled substance violation other than a single
offense involving possession of 30 grams or less of marijuana. It was alleged that Bonitto
was convicted of conspiracy to possess marijuana in violation of § 90-98, North Carolina
General Statutes, on or about May 31, 2000, in the Orange County Superior Court.1 On
April 11, 2005, additional charges were filed under INA § 237(a)(2)(C) (a firearms
conviction), 8 U.S.C. § 1227(a)(2)(C), and § 237(a)(2)(E)(ii) (a violation of a protection
order), 8 U.S.C. § 1227(a)(2)(E)(ii). It was alleged in the amended charging document,
Form I-261, that Bonitto had been convicted of a firearms offense on or about March 2,
2004 in the Poughkeepsie (New York) City Court, in violation of NYPL § 265.01, and
that he had violated an order of protection and had been held in contempt for that
violation.2
Bonitto sought relief in the form of cancellation of removal under INA § 240A(a),
8 U.S.C. § 1229b(a), and asylum, withholding of removal and protection under the
1
As a result of this conviction, Bonitto received a suspended sentence and
unsupervised probation for 12 months.
2
For this offense, Bonitto received a sentence of time served and three years
probation.
2
Convention Against Torture (“CAT”). A hearing was held in Immigration Court on these
applications on April 26, 2005 and May 12, 2005. During the course of removal
proceedings, the Immigration Judge sustained the charges of removal on the basis of clear
and convincing evidence. At the close of the hearing, the IJ denied Bonitto’s application
for cancellation of removal as a matter of discretion, and denied his applications for
asylum, withholding of removal, and protection under the CAT, and ordered him
removed. Bonitto appealed to the Board of Immigration Appeals.
On October 12, 2005, the Board dismissed the appeal, declining to set aside the
IJ’s finding that Bonitto failed to sustain his burden of proof with respect to asylum and
withholding of removal. With respect to his application for cancellation of removal, the
Board found no reversible error in the IJ’s determination that Bonitto did not merit
cancellation of removal. In addressing the standard for the exercise of discretion in the
context of cancellation of removal, the Board cited and applied In re: Sotelo-Sotelo, 23 I.
& N. Dec. 201 (BIA 2001), and In re: C-V-T-, 22 I. & N. Dec. 7 (BIA 1998). The Board
specifically agreed with the IJ that, after weighing Bonitto’s positive equities against his
criminal history and his lack of accountability for his actions, the discretionary denial of
cancellation of removal was justified. Bonitto has timely petitioned for review.3
3
In March 2006, our Clerk procedurally terminated the petition for failure to file a
brief. Bonitto thereafter successfully moved to reinstate the appeal. During the course of
these proceedings, we denied a motion for a stay of removal and Bonitto subsequently
was removed to Jamaica. He now resides in Kingston.
3
We will dismiss the petition for review for lack of jurisdiction. Although we
generally have jurisdiction to review final orders of removal under INA § 242(a)(1), 8
U.S.C. § 1252(a)(1), Bonitto was found to be removable pursuant to INA
§ 237(a)(2)(B)(i) and § 237(a)(2)(C) for having committed criminal offenses, and he has
challenged only the denial of, in the exercise of the IJ’s discretion, his application for
cancellation of removal. We thus lack jurisdiction under INA § 242(a)(2)(B) and (C) of
the jurisdictional statute, which divest us of jurisdiction over petitions for review
challenging the Board’s and IJ’s discretionary determinations, and petitions filed by
certain criminal aliens such as Bonitto. See 8 U.S.C. § 1252(a)(2)(B), (C). Although the
REAL ID Act amended INA § 242(a) to provide for jurisdiction in the courts of appeals
to review constitutional claims and questions of law raised by aliens whose petitions for
review would otherwise be outside our jurisdiction, see INA § 242(a)(2)(D), 8 U.S.C.
§ 1252(a)(2)(D), Bonitto raises no colorable constitutional claim or question of law in his
petition for review.
Bonitto contends that the Board abused its discretion in adjudicating his
cancellation of removal application and violated his right to due process when it failed to
consider his positive equities, primarily the hardship to his U.S. citizen children, and gave
heightened consideration to minor criminal offenses that resulted in no incarceration.
Specifically, he alleged that the Board ignored its precedential decisions in Matter of
Edwards, 20 I. & N. Dec. 191 (BIA 1990), and Matter of Buscemi, 19 I. & N. Dec. 628
4
(BIA 1988). See Appellant’s Br.14. He further contends that the IJ’s conclusion that he
failed to support his children was not supported by the evidence of record.4
The government counters that, although Bonitto purports to raise a reviewable
legal question by alleging “due process” violations in claiming that the Board failed to
properly evaluate his negative and positive equities, the issues that he raises are meritless,
and therefore the jurisdiction-saving provision, INA § 242(a)(2)(D), does not apply in his
case. We agree. To be eligible for cancellation of removal under INA § 240A(a), an
alien must demonstrate that he or she has been lawfully admitted for permanent residence
for not less than 5 years, has resided in the United States continuously for 7 years after
having been admitted in any status, and has not been convicted of an aggravated felony.
8 U.S.C. § 1229b(a).5
However, in addition to satisfying the three statutory eligibility requirements, an
applicant for cancellation of removal must also establish that he or she warrants such
relief as a matter of discretion. In re: C-V-T-, 22 I. & N. Dec. at 7. “The general
standards developed for the exercise of discretion under section 212(c) of the Act, 8
U.S.C. § 1182(c) (1994), which was the predecessor provision to section 240A(a), are
applicable to the exercise of discretion under section 240A(a).” Id. (citing Matter of
Marin, 16 I. & N. Dec. 581, 584-85 (BIA 1978)). In Sotelo-Sotelo, 23 I. & N. Dec. 201,
4
Bonitto has five children born in the United States. He testified that his children
would not go back to Jamaica with him but would remain with their mothers.
5
Bonitto’s statutory eligibility is not at issue here.
5
the Board held that an applicant for cancellation of removal under section 240A(a) need
not meet a threshold test requiring a showing of "unusual or outstanding equities" before
a balancing of the favorable and unfavorable factors will be made to determine whether
relief should be granted in the exercise of discretion. Instead, the Board “will weigh the
favorable and adverse factors to determine whether, on balance, the ‘totality of the
evidence before us’ indicates that the ‘[alien] has adequately demonstrated that he
warrants a favorable exercise of discretion and a grant of cancellation of removal under
section 240A(a) of the Act.’” Id. at 204 (quoting In re: C-V-T-, 22 I. & N. Dec. at 10).
Therefore, in adjudicating an application for cancellation of removal, the IJ is
required to balance the positive and negative factors to determine whether discretion
should be favorably exercised. The "equities that an applicant . . . must bring forward to
establish that favorable discretionary action is warranted will depend in each case on the
nature and circumstances of the ground of [removability] sought waived and on the
presence of any additional adverse matters." Marin, 16 I. & N. Dec. at 585. In Tipu v.
Immigration & Naturalization Serv., 20 F.3d 580 (3d Cir. 1994), we generally endorsed
the Marin approach. Id. at 583. See also Katsis v. Immigration & Naturalization Serv.,
997 F.2d 1067, 1073-74 (3d Cir. 1997).
The Board and the IJ properly applied precedent here and did not employ a
heightened standard. See Sukwanputra v. Gonzales, 434 F.3d 627, 634 (3d Cir. 2006)
(factual and discretionary determinations continue to fall outside our jurisdiction but 8
6
U.S.C. § 1252(a)(2)(D) would extend to question whether Board applied wrong legal
standard in making discretionary determination). The Board and the IJ properly relied
upon Sotelo-Sotelo, 23 I. & N. Dec. 201, and In re: C-V-T-, 22 I. & N. Dec. 7, in holding
that an applicant for cancellation of removal under section 240A(a) need not meet a
threshold test requiring a showing of "unusual or outstanding equities" before a balancing
of the favorable and unfavorable factors will be made. Sotelo-Sotelo, 23 I. & N. Dec. at
204; In re: C-V-T-, 22 I. & N. Dec. at 10. Accordingly, discretion was exercised with
care and in accordance with the prevailing standards and thus this case falls outside our
jurisdiction. See Sukwanputra, 434 F.3d at 634.
For the foregoing reasons, we will dismiss the petition for review for lack of
subject matter jurisdiction.
7