UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-1680

MANUEL COREAS,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration 

Appeals. 

Argued: March 21, 2013 Decided: June 6, 2013

Before AGEE, KEENAN, and FLOYD, Circuit Judges.

Petition dismissed in part and denied in part by unpublished per 

curiam opinion.

ARGUED: Manuel Rivera, Jr., LAW OFFICE OF MANUEL RIVERA, ESQ., 

Arlington, Virginia, for Petitioner. Bernard Arthur Joseph, 

UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for 

Respondent. ON BRIEF: Stuart F. Delery, Acting Assistant 

Attorney General, Civil Division, Ernesto H. Molina, Jr., 

Assistant Director, Office of Immigration Litigation, UNITED 

STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. 

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Petitioner Manuel Coreas, a citizen of El Salvador, has 

lived in the United States since November 1994. His status was 

adjusted to that of a lawful permanent resident on January 7, 

1998. Based on his April 2001 conviction in Virginia state 

court for petit larceny, however, the Department of Homeland 

Security (DHS) initiated removal proceedings against him. 

Coreas subsequently filed an application for cancellation of 

removal, which the immigration judge (IJ) granted. The DHS 

appealed the IJ’s decision to the Board of Immigration Appeals 

(BIA). The BIA sustained the DHS’s appeal, vacated the IJ’s 

decision, and ordered that Coreas be removed to El Salvador. 

Thereafter, Coreas filed a petition for review with this Court. 

For the reasons that follow, we dismiss in part and deny in part 

Coreas’s petition.

I.

There is no dispute that Coreas committed a crime of moral 

turpitude. On April 26, 2001, he was convicted in Loudoun 

County General District Court of petit larceny, which he 

committed on or about January 7, 2001. For that offense, a 

sentence of one year may be imposed. See Va. Code § 18.2-96

(stating that the crime of petit larceny “shall be punishable as 

a Class 1 misdemeanor”); Id. § 18.2-11(a) (“For Class 1 
3

misdemeanors, confinement in jail for not more than twelve 

months and a fine of not more than $2,500, either or both.”).

Afterwards, with the issuance and service of a notice to 

appear by a DHS group supervisor, the DHS commenced removal 

proceedings against Coreas under 8 U.S.C. § 1227(a)(2)(A)(i), 

which allows removal when a lawful permanent resident is 

convicted within five years after admission of a crime involving 

moral turpitude for which a sentence of one year or longer may 

be imposed. Coreas subsequently filed an application for 

cancellation of removal for permanent residents, pursuant to 8 

U.S.C. § 1229b(a), which the IJ granted. The DHS then filed a 

Notice of Appeal (NOA) with the BIA. The BIA thereafter vacated 

the IJ’s decision and ordered that Coreas be removed. Coreas 

then filed his petition for review with this Court. 

II.

Coreas argues that we should reverse the BIA’s decision 

vacating the IJ’s order cancelling his removal because, 

according to Coreas, the BIA failed to consider all of the 

required factors and the BIA improperly engaged in its own 

factfinding. But before we can consider these claims, we must 

first determine whether we have jurisdiction to do so. “Federal 

appellate courts determine de novo whether they have subject 
4

matter jurisdiction to decide a case.” Kporlor v. Holder, 597 

F.3d 222, 225 (4th Cir. 2010).

According to 8 U.S.C. § 1252(a)(2)(B)-(i), “[n]o court 

shall have jurisdiction to review any judgment regarding the 

granting of relief under . . . 1229b,” the section regarding 

cancellation of removal. However, the statute goes on to make 

clear that the courts of appeals retain jurisdiction to review 

constitutional claims and questions of law. See id. 

§ 1252(a)(2)(D) (“Nothing in subparagraph (B) . . . shall be 

construed as precluding review of constitutional claims or 

questions of law raised upon a petition for review filed with an 

appropriate court of appeals in accordance with this section.”).

Coreas attempts to get past the jurisdictional bar by 

arguing that the BIA “failed to consider all of the factors 

required by law in determining an application for cancellation 

of removal.” Positive factors include:

family ties within the United States, residence 

of long duration in this country (particularly when 

the inception of residence occurred while the 

respondent was of young age), evidence of hardship to 

the respondent and family if deportation occurs, 

service in this country’s Armed Forces, a history of 

employment, the existence of property or business 

ties, evidence of value and service to the community, 

proof of a genuine rehabilitation if a criminal record 

exists, and other evidence attesting to a respondent’s 

good character (e.g., affidavits from family, friends, 

and responsible community representatives). 
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Matter of Marin, 16 I. & N. Dec. 581, 584-85 (1978), abrogated 

on other grounds by Matter of Edwards, 20 I. & N. Dec. 191 

(1990). Adverse factors, on the other hand, involve such 

matters as

the nature and underlying circumstances of the 

exclusion ground at issue, the presence of additional 

significant violations of this country’s immigration 

laws, the existence of a criminal record and, if so, 

its nature, recency, and seriousness, and the presence 

of other evidence indicative of a respondent’s bad 

character or undesirability as a permanent resident of 

this country.

Id. at 584. Contrary to Coreas’s suggestion, however, “Marin

does not . . . purport to require consideration of all of the 

factors enumerated; it merely recites a nonexhaustive list of 

factors that in prior cases had been considered to be either 

‘favorable’ or ‘adverse.’” Casalena v. INS, 984 F.2d 105, 107 

n.5 (4th Cir. 1993). 

Nevertheless, from our review of the record, it appears 

that the BIA carefully considered most of the factors listed 

above. As to the positive factors, it specifically discussed 

Coreas’s extensive family ties to the United States, his good 

work history, that his earnings are important to his family, and 

that he would have difficulty finding employment in El Salvador. 

The BIA also noted that Coreas’s siblings are currently 

providing financial assistance to his family while he is 

incarcerated, but they will be unable to do so indefinitely. It 
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further recognized that Coreas has been in the United States 

since the age of fourteen, that hardship would ensue with his 

removal, and that he has paid his taxes and mortgage over a 

period of years. 

Concerning the adverse factors, the BIA observed that 

Coreas has an extensive criminal history, including petit 

larceny, public intoxication or swearing, driving with a 

suspended license, driving while intoxicated, and driving under 

the influence. The BIA also noted that the IJ had properly 

found that Coreas had failed to demonstrate that he had been 

rehabilitated as to his abuse of alcohol or his record of 

driving while intoxicated.

Simply put, although Coreas may be displeased with the 

weight that the BIA gave to the positive factors it considered, 

we are unable to say that it failed to appropriately consider 

them. Thus, we find no error of law. 

Coreas also contends that the BIA violated 8 C.F.R. 

§ 1003.1(d)(3)(i) and (iv) when it engaged in its own 

factfinding, in lieu of deferring to the factfinding that the IJ 

conducted. Pursuant to 8 C.F.R. § 1003.1(d)(3)(i) and (iv),

(i) The Board will not engage in de novo review of 

findings of fact determined by an immigration judge. 

Facts determined by the immigration judge, including 

findings as to the credibility of testimony, shall be 

reviewed only to determine whether the findings of the 

immigration judge are clearly erroneous. 
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. . . 

(iv) Except for taking administrative notice of 

commonly known facts such as current events or the 

contents of official documents, the Board will not 

engage in factfinding in the course of deciding 

appeals. A party asserting that the Board cannot 

properly resolve an appeal without further factfinding 

must file a motion for remand. If further factfinding 

is needed in a particular case, the Board may remand 

the proceeding to the immigration judge or, as 

appropriate, to the Service. 

Our review of the record, however, convinces us that the 

BIA did not tamper with the IJ’s factual findings. Instead, 

conducting a de novo review of the IJ’s discretion, the BIA held 

that the IJ erred. See 8 C.F.R. § 1003.1(d)(3)(ii) (“The Board 

may review questions of law, discretion, and judgment and all 

other issues in appeals from decisions of immigration judges de 

novo.”). Thus, there is no error of law. 

Because the BIA committed neither error of law that Coreas 

alleges, we lack jurisdiction to review the BIA’s discretionary 

decision to vacate the IJ’s order. Thus, we will dismiss this 

portion of the petition.

III.

Next, Coreas claims that we ought to reverse the BIA’s 

decision because his notice to appear was issued by one who is 

not authorized to do so: a group supervisor. The government 
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concedes that this is a legal issue, which we have jurisdiction 

to adjudicate. 

The Code of Federal Regulations provides, in relevant part, 

the following:

Any immigration officer, or supervisor thereof, 

performing an inspection of an arriving alien at a 

port-of-entry may issue a notice to appear to such 

alien. In addition, the following officers, or 

officers acting in such capacity, may issue a notice 

to appear:

. . . 

(8) Field operations supervisors; 

(9) Special operations supervisors; 

(10) Supervisory border patrol agents; 

. . . 

(14) Supervisory district adjudications 

officers; 

(15) Supervisory asylum officers; 

. . . 

(23) Supervisory special agents;

. . . 

(30) Supervisory deportation officers; 

(31) Supervisory detention and deportation 

officers; 

. . . 

(38) Supervisory service center adjudications 

officers; 

. . .

(41) Other officers or employees of the 

Department or of the United States who are delegated 
9

the authority as provided by 8 C.F.R. [§] 2.1 to issue 

notices to appear. 

8 C.F.R. § 239.1(a). Further, pursuant to 8 C.F.R. § 2.1,

All authorities and functions of the Department 

of Homeland Security to administer and enforce the 

immigration laws are vested in the Secretary of 

Homeland Security. The Secretary of Homeland Security 

may, in the Secretary’s discretion, delegate any such 

authority or function to any official, officer, or 

employee of the Department of Homeland Security, 

including delegation through successive redelegation, 

or to any employee of the United States to the extent 

authorized by law. Such delegation may be made by 

regulation, directive, memorandum, or other means as 

deemed appropriate by the Secretary in the exercise of 

the Secretary’s discretion. A delegation of authority 

or function may in the Secretary’s discretion be 

published in the Federal Register, but such 

publication is not required.

The term “group supervisor” is not found in the 8 C.F.R.

§ 239.1(a) list, and we are baffled by the government’s 

inability to define exactly what a “group supervisor” is, 

although specifically questioned about it at oral argument. We 

are also puzzled that it was unable to answer how the DHS 

delegated its authority such that a “group supervisor” could 

serve the notice to appear on Coreas pursuant to 8 C.F.R. § 2.1. 

Nevertheless, we are unable to say that the government’s failure 

in this regard is enough to overcome the presumption of 

regularity that is attached to the DHS’s issuance of a notice to 

appear. See Almy v. Sebelius, 679 F.3d 297, 309 (4th Cir. 2012)

(“The presumption of regularity supports the official acts of 

public officers, and, in the absence of clear evidence to the 
10

contrary, courts presume that they have properly discharged 

their official duties.” (quoting United States v. Chem. Found., 

272 U.S. 1, 14–15 (1926) (internal quotation marks omitted))). 

Moreover, “an alien must ‘establish prejudice . . . to 

invalidate deportation proceedings on a claim that [his] 

statutory or regulatory rights were infringed.’” Rusu v. INS,

296 F.3d 316, 320 (4th Cir. 2002) (alteration in original) 

(quoting Garcia-Guzman v. Reno, 65 F. Supp. 2d 1077, 1085 (N.D.

Cal. 1999)). “And we may only find prejudice ‘when the rights 

of [an] alien have been transgressed in such a way as is likely 

to impact the results of the proceedings.’” Id. at 320-21

(alteration in original) (quoting Jacinto v. INS, 208 F.3d 725,

728 (9th Cir. 2000)). Simply stated, Coreas has failed to 

establish such prejudice. 

Thus, because Coreas has failed either to marshal any clear 

evidence to alter the presumption of regularity enjoyed by the 

DHS in its issuance of the notice to appear, or to demonstrate 

the required prejudice discussed above, we will deny his 

petition as to this issue.

IV.

Finally, Coreas maintains that we should reverse the BIA’s

decision because of the DHS’s alleged failure to abide by the 

applicable regulations in drafting its NOA to the BIA. The 
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government agrees that this claim also involves a legal issue, 

which we have jurisdiction to decide. 

As is relevant to Coreas’s petition, 8 C.F.R. § 1003.3

states, “Where the appeal concerns discretionary relief, the 

appellant must state whether the alleged error relates to 

statutory grounds of eligibility or to the exercise of 

discretion and must identify the specific factual and legal 

finding or findings that are being challenged.” Id. § 1003.3(b). 

Moreover, 8 C.F.R. § 1003.1(d)(2)(i)-(A) provides that “[a]

single Boardmember or panel may summarily dismiss any appeal or 

portion of any appeal in any case in which: (A) The party 

concerned fails to specify the reasons for the appeal on Form 

EOIR–26 or Form EOIR–29 (Notices of Appeal) or other document 

filed therewith.” There is also a warning on the BIA-provided 

NOA, which declares: “You must clearly explain the specific 

facts and law on which you base your appeal of the [IJ’s] 

decision. The [BIA] may summarily dismiss your appeal if it 

cannot tell from this [NOA], or any statements attached to this 

[NOA], why you are appealing.” 

The DHS’s NOA set forth only the following:

The [IJ] erred in granting [Coreas’s] application 

for cancellation of removal for certain permanent 

residents under Section 240(A)(a) of the [Immigration 

and Nationality Act] because [Coreas] does not merit a 

favorable exercise of the court’s discretion. The 

[DHS] also reserves the right to raise additional 

issues after reviewing the transcript.
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As such, there is no question that the DHS’s NOA failed to 

follow either 8 C.F.R. § 1003.3, 8 C.F.R. § 1003.1(d)(2)(i)-(A),

or the warning on the NOA. As noted by Coreas, the NOA

(1) failed to identify the findings of fact and 

conclusions of law which [the] DHS was challenging,

(2) failed to cite authority supporting [the] DHS’s 

appeal as to questions of law, (3) failed to identify 

the specific findings of fact which [the] DHS was 

contesting, and (4) failed to state whether the 

asserted error related to the statutory grounds of 

[Coreas’s] eligibility for cancellation of removal or 

to the exercise of discretion, and failed to identify 

the specific factual and legal findings being 

challenged. 

For these reasons, the BIA could have properly dismissed the 

appeal. But, it did not. 

Coreas cites only to one case to support his proposition 

that the DHS’s NOA was legally insufficient to support its 

appeal: Rojas-Garcia v. Ashcroft, 339 F.3d 814 (9th Cir. 2003). 

In Rojas-Garcia, the Ninth Circuit considered whether the BIA 

properly dismissed an appeal. Id. at 821 (“[W]e reject RojasGarcia’s argument that he stated grounds for appeal with 

sufficient particularity so as to avoid summary dismissal.”). 

Here, however, we are called upon to decide whether it is proper 

for us to disturb the BIA’s decision to consider the appeal. 

For the reasons that follow, we will not upset the BIA’s 

decision.
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First, “[t]he requirement of specificity is not 

jurisdictional.” Pasha v. Gonzales, 433 F.3d 530, 532 (7th Cir. 

2005). Hence, the BIA had the discretion to “choose between 

dismissing the appeal for failure to comply with the requirement 

of specificity . . . and proceeding to the merits.” Id. at 533. 

We find no reversible error in its choosing the latter of these 

options.

Second, both 8 C.F.R. § 1003.1(d)(2)(i)(A) and the warning 

on the NOA state that the BIA “may summarily dismiss” an appeal 

when the NOA lacks specificity as to the reason for the appeal. 

Notably, neither one states that it “shall,” “will,” or “must”

summarily dismiss the appeal. In other words, the BIA is 

permitted to dismiss the appeal, but it is not mandated to do 

so.

Coreas has pointed to no compelling reason as to how the 

BIA erred in considering the DHS’s appeal in this matter, and we 

have been unable to uncover any. As such, we will deny Coreas’s 

petition as to this issue, too. 

V.

As set forth above, we have no jurisdiction to review the 

BIA’s discretionary decision to vacate the IJ’s order. And, as 

to the notice to appear and the NOA issues, we find no error. 
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Consequently, we dismiss Coreas’s petition in part and deny it 

in part.

PETITION DISMISSED IN PART 

AND DENIED IN PART