NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-4769
___________
FELIX MANUEL VASQUEZ,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A42 085 862)
Immigration Judge: Honorable Miriam K. Mills
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
April 21, 2010
Before: BARRY, STAPLETON and NYGAARD, Circuit Judges
(filed: April 26, 2010 )
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OPINION
___________
PER CURIAM
Felix Manuel Vasquez, a citizen of the Dominican Republic, entered the United
States in March 1989, and adjusted his status to lawful permanent resident. In July 1990,
Vasquez pleaded guilty to attempted criminal possession of a controlled substance in the
third degree in violation of New York Penal Law 220.16(12). The Department of
Homeland Security charged Vasquez as removable on several grounds, including for
having been convicted of a crime relating to a controlled substance. See Immigration and
Nationality Act (“INA”) § 212(a)(2)(A)(i)(II) [8 U.S.C. § 1182(a)(2)(A)(i)(II)]. Vasquez
conceded removability and applied for a waiver of removal under former INA § 212(c) [8
U.S.C. § 1182(c)]. The Immigration Judge (“IJ”) concluded that Vasquez was statutorily
eligible for § 212(c) relief, but denied his application as a matter of discretion because the
adverse factors outweighed the positive ones.
The Board of Immigration Appeals (“BIA”) affirmed. The Board recognized
Vasquez’s lengthy residence in the United States and his family ties. But it agreed that
those factors were outweighed by the negative aspects of Vasquez’s case. In particular,
the BIA noted that Vasquez’s conviction occurred a little over a year after he entered the
United States, that he was reluctant to accept responsibility for the offense, and that his
criminal activity had continued beyond 1990, including “an arrest and guilty plea as
recent as 2004.” The Board also rejected Vasquez’s claim that the IJ had improperly
considered evidence of his criminal history and had coerced him into involuntarily
admitting that he had lied under oath regarding the circumstances leading to his 1990
conviction.
Vasquez filed a timely petition for review. The government has moved to dismiss,
arguing that this Court lacks jurisdiction because Vasquez is a criminal alien who seeks
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review of an order denying § 212(c) relief in the exercise of discretion. We generally do
not have jurisdiction to review final orders of removal against aliens, like Vasquez, who
are deemed removable because they were convicted of a controlled substance offense.
See INA § 242(a)(2)(C) [8 U.S.C. § 1252(a)(2)(C)] (precluding jurisdiction where alien
removable pursuant to INA § 212(a)(2)). In addition, the INA provides that “no court
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.” INA § 242(a)(2)(B)(ii) [8 U.S.C.
§ 1252(a)(2)(B)(ii)]. The decision to grant or deny relief pursuant to § 212(c) is a
discretionary one. See INS v. St. Cyr, 533 U.S. 289, 325 (2001).
Despite these jurisdiction-stripping provisions, this Court may review
“constitutional claims or questions of law” raised in a petition for review. See INA §
242(a)(2)(D) [8 U.S.C. § 1252(a)(2)(D)]; Papageorgiou v. Gonzales, 413 F.3d 356, 358
(3d Cir. 2005). Thus, we may consider whether the Board, in exercising its discretion,
employed an incorrect legal standard, misapplied a rule of law, or violated a provision of
the U.S. Constitution. See Sukwanputra v. Gonzales, 434 F.3d 627, 634 (3d Cir. 2006)
(noting that INA § 242(a)(2)(D) would confer jurisdiction over a question whether the
Board applied the wrong legal standard in making a discretionary determination).
Vasquez argues that this Court has jurisdiction to review his claim that the IJ
committed legal error by requiring him to demonstrate “unusual or outstanding equities”
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in order to be eligible for a § 212(c) waiver. Our jurisdiction may extend to such a claim.
See Khan v. Gonzales, 495 F.3d 31, 34 (2d Cir. 2007) (exercising jurisdiction over
argument that the IJ “improperly imposed a heightened legal standard by requiring that
[the petitioner] demonstrate ‘unusual or outstanding equities’ that would overcome the
seriousness of his prior convictions.”). We do not need to decide the jurisdictional issue,
however, because Vasquez’s claim lacks merit. See Sukwanputra, 434 F.3d at 634.
In considering whether to exercise her discretion to grant § 212(c) relief, an IJ
must “balanc[e] . . . the social and humane considerations presented in an alien’s favor
against the adverse factors evidencing his undesirability as a permanent resident.” In re
of Edwards, 20 I. & N. Dec. 191, 195 (BIA 1990). “[A]s the negative factors grow more
serious, it becomes incumbent upon the alien to introduce additional offsetting favorable
evidence, which in some cases may have to involve unusual or outstanding equities.” Id.
Here, in describing the standards applicable to an exercise of discretion, IJ used language
indicating that an alien who demonstrates “unusual or outstanding equities” merely
satisfies a threshold test for a favorable exercise of discretion. This standard has been
rejected by the Board. Id. at 196 n.3; In re Sotelo-Sotelo, 23 I. & N. Dec. 201, 203-04
(BIA 2001). Significantly, however, neither the IJ nor the BIA applied the “unusual or
outstanding equities” test to Vasquez’s case. Instead, they properly “weigh[ed] the
favorable and adverse factors to determine whether, on balance, the totality of the
evidence before [them] indicat[ed] that the [petitioner] adequately demonstrated that he
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warrant[ed] a favorable exercise of discretion . . . .” Sotelo-Sotelo, 23 I. & N. Dec. at
204.
Vasquez also alleges the BIA and the IJ committed legal error by considering as an
unfavorable factor a 2004 arrest, which he claims never occurred.1 To the extent that this
describes as a “flawed factual finding,” Petr.’s Br., 17, we lack jurisdiction to review it.
See Sukwanputra, 434 F.3d at 634. Even if jurisdiction existed, however, we would
reject this claim because Vasquez was not prejudiced by the alleged improper
consideration of the 2004 arrest. That arrest, along with arrests in 1992, 1997, and 2000,
simply supported the IJ’s proposition that Vasquez’s 1990 conviction “was not [his] only
encounter with law enforcement.” Importantly, those encounters were not necessary to
the IJ’s conclusion that Vasquez did not warrant a favorable exercise of discretion.
Rather, the “overriding and decisive adverse factor [was Vasquez’s] refusal to truthfully
testify about his 1990 drug conviction . . . .” According to the IJ, Vasquez’s “false
testimony and affidavit [concerning the 1990 conviction] . . . weigh against any favorable
equities in [his] case.” Therefore, any error caused by consideration of the alleged 2004
arrest was harmless. See Akrap v. INS, 966 F.2d 267, 272 n.9 (7th Cir. 1992) (holding
that BIA’s mistaken belief that petitioner had been convicted on six counts of cocaine
delivery, when he in fact had been convicted of only five, did not warrant overturning the
1
The arrest was detailed in a “Psycho-Social evaluation,” written by a social worker,
that Vasquez submitted with his § 212(c) application.
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discretionary denial of § 212(c) relief).
With respect to the IJ’s false testimony finding, Vasquez alleges that the
“appropriate procedure for sustaining a charge of misrepresentation is through Section
212(a)(6)(C)(i) [8 U.S.C. § 1182(a)(6)(C)(i)] of the Act.” Petr.’s Br., 21. That provision
renders inadmissible a class of aliens “who, by fraud or willfully misrepresenting a
material fact, seeks to procure (or has sought to procure or has procured) a visa, other
documentation, or admission into the United States or other benefit provided under this
Act . . . .” Contrary to Vasquez’s suggestion, though, a determination of inadmissibility
under § 212(c)(6)(C)(i) is not a prerequisite to finding that an alien gave false testimony
for the purpose of obtaining § 212(c) relief. We also reject Vasquez’s claim that the
Board engaged in improper factfinding under 8 C.F.R. § 1003.1(d)(3)(iv) by stating that
the IJ “found [him] removable only on the original charge in the Notice to Appear,” i.e.,
§ 212(a)(2)(A)(i)(II). Finally, we note that the record does not support Vasquez’s
contention that the IJ “failed to behave in a professional and impartial [manner].” Petr.’s
Br., 24.
For the foregoing reasons, we will deny the petition for review.2
2
The Government’s Motion to Dismiss is denied.
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