Maggarette Palmer v. Atty Gen USA

• Court: Court of Appeals for the Third Circuit
• Decided: March 21, 2011
• Docket: 10-1121
• Status: Unpublished

Opinion

IMG-069 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THlRD ClRCUlT No. 10-1121 l\/IAGGARETTE PALMER, Petitioner V. ATTORNEY GENERAL OF THE UNlTED STATES, ReSpondent On Petition for Revievv of an Order of the Board of lmmigration Appeals (Agency No. A()44-134-71 l) lrnrnigration Judge: Honorable Walter A. Durling Submitted PurSuant to Third Circuit LAR 34.1(a) March 16, 2011 Before: BARRY, HARDll\/IAN and STAPLETON, Circuit Judges (Opinion filed: l\/larch 2l, 201 l) OPINION PER CURlAM l\/laggarette Palmer petitions for review of an order of the Board of lnimigration Appeals ("BIA") vacating the lmmigration Judge’S ("IJ") grant of cancellation of removal and ordering his removal from the United States. We will deny the petition for 1

review in part and dismiss it in part. Because the parties are familiar with the background, we will present it here only briefly. Palmer is a native and citizen of Jamaica. ln 1993, as a minor, he was admitted to the United States as a lawful permanent resident. ln 2()04, he was convicted in Pennsylvania state court of possession of marijuana with intent to distribute. In February 2009, Palmer was charged as being removable as an alien convicted of a controlled substance offense (8 U.S.C. § 1227(a)(2)(B)(i)) and as an alien convicted of an aggravated felony (8 U.S.C. § 1227 (a)(2)(A)(iii)). Palmer denied the aggravated felony charge but conceded the other allegations He applied for cancellation of removal under section 240A(a) of the lmmigration and Nationality Act ("lNA") (8 U.S.C. § l229b(a)). On April 9, 2009, the lJ ruled that Palmer’s state marijuana offense did not support the aggravated felony removal charge, and accordingly, Palmer was not statutorily barred from seeking section 24OA(a) cancellation relief. Palmer testified at his merits hearing before the lJ, and he submitted documentary evidence and letters of support. He also presented the testimony of his live-in girlfriend, with whom he has two children who are United Stats citizens On August 28, 2009, the IJ granted Palmer’s application for cancellation of removal. The lJ noted that Palmer’s conduct justified the denial of his application, but the application was granted for the sake of Palmer’s young children and keeping the family united. The government appealed to the BlA, which sustained the appeal ln its December 14, 2009 decision, the BlA recited its standard of review, citing 8 C.F.R. § 2

l003.1(d)(3)(i)-(ii), noting that it would review the lJ’s factual findings for clear error and all other issues de novo. The BlA did not address the issue of Palmer’s statutory eligibility for cancellation of removal, because it determined that, even assuming that his eligibility was established, Palmer did not merit cancellation relief. In so concluding, the BlA noted the positive equities in Palmer’s case, namely, his close family ties in the United States, his many years of residence, his active role in parenting his young children, the financial support he provides to his girlfriend and children, and the emotional impact on his family. However, the BIA determined that the negative factors in his case outweighed the positive ones. The BlA summarized Palmer’s criminal record, which shows a pattem of repeated drug-related arrests. In addition to the 2004 marijuana conviction, the BlA noted a 2003 arrest for marijuana possession with intent to deliver, and a 206 arrest in Georgia. ln the Georgia incident, the car in which Palmer was a passenger was pulled over by police; marijuana was discovered in Palmer’s trousers, and he provided the police with false identification. The BlA also noted a 2009 arrest in Pennsylvania during which Palmer provided the police with the same alias he used in Georgia. Further, the BlA stated that, although Palmer expressed remorse for his actions, there was little evidence of genuine rehabilitation. The BlA concluded that Palmer’s "lengthy criminal history, the seriousness of his drug conviction, and the lack of rehabilitation outweigh the positive factors regarding the exercise of discretion." A.R. 5. The BlA denied Palmer’s application for cancellation of removal, vacated the lJ’s grant of cancellation of removal, and ordered Palmer’s removal to Jamaica. This petition for 3

review followed. The government has filed a motion to dismiss the petition for review for lack of jurisdiction As the government argues in its brief, we generally lack jurisdiction to review the agency’s discretionary decisions made under 8 U.S.C. § 1229b regarding cancellation of removal. § 8 U.S.C. § 1252(a)(2)(B)(i); Mendez-Reyes v. Att’y Gen., 428 F.3d 187, 189 (3d Cir. 2005). However, we retain jurisdiction to review constitutional claims and questions of law. § 8 U.S.C. § l252(a)(2)(D); Mendez- l, 428 F.3d at 189. Palmer argues that the BlA committed legal error in reaching its decision, specifically, that the BlA applied an incorrect legal standard, engaged in impermissible fact findings, and failed to consider all of the relevant evidence. Palmer also argues that the manner in which the BlA reached its decision deprived him of due process of law. We have jurisdiction to review these arguments. In arguing that the BIA misapplied established legal standards and precedents in its decision to deny cancellation of removal, Palmer argues that the BlA viewed Palmer’s drug conviction as a "serious" drug offense, inappropriately relying on l\/latter of Burbano, 20 I. & N. Dec. 872, 877 n.4 (BlA 1994). Specifically, Palmer points to the BIA’s statement in Burbano that it had viewed a "serious" drug offense as a drug trafficking crime that constitutes an aggravated felony under the lNA. Palmer argues that the BlA should not have relied on Burbano because he was not convicted of an aggravated felony, and the BIA should not have determined that the "seriousness" of his drug conviction warranted reversal of the grant of cancellation of removal. Although the 4

BlA’s citation to Burbano does relate to "serious drug offenders," the idea expressed in the BlA’s reference is the general proposition that those offenders face a difficult task in showing that they merit discretionary relief (A.R. 3.) That idea was expressed in Burbano within the context of the BlA’s re-emphasis of its practice to balance the positive and negative factors when making a determination regarding discretionary relief. § Burbano 20 I. & N. Dec. at 878-79 (discussing former lNA § 212). lt is plain that the BlA did not treat Palmer’s drug conviction as an aggravated felony. An aggravated felony finding would have statutorily precluded cancellation of removal relief, § 8 U.S.C. § l229b(a)(3), but the BlA bypassed the question of Palmer’s statutory eligibility for cancellation relief and instead assumed that Palmer was eligible. Ultimately, the BIA concluded that Palmer did not merit cancellation relief, and we are not persuaded that the BlA applied an improper legal standard by its reference to Burbano.1 Palmer also argues that the BIA engaged in impermissible fact finding when it concluded that there was a lack of genuine rehabilitation in his case. Under 8 C.F.R. § 1003. l(d)93)(i), the BIA must defer to the IJ’s factual findings unless it concludes that the lJ’s findings are clearly erroneous. Further, under § l003.l(d)(3)(iv), the BlA is prohibited from engaging in its own independent fact finding Palmer relies on our decisions in Kaplun v. Att’y Gen., 602 F.3d 260 (3d Cir. 2010), and Fortreau v. Att’y 1 To the extent that Palmer argues that the BlA should have accorded less weight to his conviction because it was not "serious," this challenge concems the BlA’s exercise of its discretion in considering the equities presented in Palmer’s case. As noted above, we lack jurisdiction to review this issue. 5

§ 240 Fed. Appx. 531 (3d Cir. 2007) (not precedential), in which we discussed the BlA’s standard of review and found, in both cases, that the BlA impermissibly conducted de novo fact finding and overturned the lJ’s factual findings without reviewing the findings for clear error. Palmer asserts that the BlA did not deem any facts found by the lJ to be clearly erroneous, and so the BlA’s conclusion concerning the absence of genuine rehabilitation constitutes improper fact finding We are not persuaded by Palmer’s argument. The BlA did not disagree with the lJ on this issue and did not ignore or contradict any facts found by the IJ. Indeed, the BlA echoed the IJ’s own discussion on the topic, from the same details of Palmer’s criminal history that includes several arrests involving marijuana and at least two instances of providing false identification to the police. The lJ found that Palmer continued to use marijuana for years, despite his arrests and convictions relating to marijuana, and that Palmer had pending criminal charges against him. Although the lJ noted that Palmer "sincerely expressed his remorse for his conduct" in pleading for a final chance, the lJ’s comment was that "this court has little sympathy for him, given his criminal record." (A.R. 98.) ln fact, far from making a finding that the evidence showed genuine rehabilitation, the IJ stated that Palmer’s conduct justified the denial of his application for cancellation relief. (A.R. 99.) The lJ emphasized that the facts of record would not have been sufficient for the lJ’s favorable ruling absent the equities concerning the Palmer’s young children. (l_d.) Unlike in gm and Fortreau, the BlA in this case did not overturn a factual finding by the lJ. Rather, the BlA’s decision reflects that the BlA 6

determined that a favorable exercise of discretion was not warranted when the positive factors in Palmer’s case were balanced against the negative factors We discern no error here. In addition, Palmer argues that the BlA departed from the legal standard of § of Arreguin, 21 l. & N. Dec. 38 (BlA 1995), in considering only Palmer’s criminal history without considering positive aspects of Palmer’s life to reach the conclusion that there was a lack of rehabilitation. ln particular, Palmer points to his presence in the United States under lawful permanent resident status since he was a minor, his strong family ties to the United States and the impact on his family if he were removed, and his employment history and business property. Yet the BlA did acknowledge each of these positive factors, as noted above. Although Palmer argues that the BlA completely failed to consider his employment history and business property, and he notes his girlfriend’s testimony that her daycare was at risk of failing without Palmer’s involvement as the supervisor of outdoor activities, the BlA’s decision acknowledges the financial impact that Palmer’s removal would have on his family. To the extent that Palmer argues that the BlA incorrectly weighed the evidence because more weight should have been given to the positive factors over the other factors, we reiterate that we lack jurisdiction to consider the BlA’s exercise of discretion. Accordingly, we will deny the petition for review in part, and dismiss it in part for lack of jurisdiction. The govemment’s motion to dismiss is granted in part and denied in part. 7