2015 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-26-2015

Alexander Alli v. Attorney General United States

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"Alexander Alli v. Attorney General United States" (2015). 2015 Decisions. Paper 224.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 13-4757

_____________

ALEXANDER ALLI,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATESOF AMERICA,

Respondent

____________

On Petition for Review of a Decision

and Order of the Board of Immigration Appeals

BIA No. A074 983 378

____________

Submitted Pursuant to Third Circuit LAR 34.1(a)

October 23, 2014

Before: FUENTES, GREENBERG, and COWEN, Circuit Judges.

(Filed: February 26, 2015)

_______________

OPINION*

_______________

______________ 

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
1

FUENTES, Circuit Judge:

Alexander Alli (“Alli”) challenges the order of the Board of Immigration Appeals 

(“the Board”) denying his application for a section 212(h) waiver under the Immigration 

and Nationality Act and ordering him removed from the United States to Ghana.

I. 

Alli is a native of Ghana who entered the United States in 1990 and became a 

lawful permanent resident in 1996. His wife and three minor children are United States 

citizens. In 2006, Alli was convicted for conspiracy to commit wire fraud, fraud in 

connection with identification documents, and possession of access devices in violation 

of 18 U.S.C. § 371. In addition, he was convicted of fraud in connection with 

identification documents and possession of access devices in violation of 18 U.S.C. §§ 

1028 and 1029. Alli was sentenced to 24 months’ imprisonment. 

In 2008, the Department of Homeland Security (“DHS”) commenced removal 

proceedings against Alli. DHS issued a Notice to Appear, charging him with 

removability pursuant to the Immigration and Nationality Act § 237(a)(2)(A)(iii), 8 

U.S.C. § 1227(a)(2)(A)(iii), as an alien who had been convicted of an aggravated felony. 

Before an immigration judge, Alli challenged the claim that he was removable as an alien 

convicted of an aggravated felony. Likewise, Alli argued that even if he was removable, 

he was eligible for a waiver under the Immigration and Nationality Act § 212(h). The 

Immigration Judge issued an interlocutory ruling holding that while Alli’s conviction 

constituted an aggravated felony, he nevertheless remained eligible for a section 212(h) 

waiver because he was not admitted to the United States as a legal permanent resident 
2

and thus was not subject to the aggravated felony bar. The Immigration Judge granted 

Alli’s request for a section 212(h) waiver and granted his application for adjustment of

status.

Both DHS and Alli appealed the Immigration Judge’s decision to the Board. DHS 

appealed the grant of a section 212(h) waiver and adjustment of status. Alli appealed the 

finding that his crimes constituted aggravated felonies. The Board agreed that Alli’s 

convictions constituted aggravated felonies but concluded that he was ineligible for 

section 212(h) wavier.1

Alli petitioned for review of the Board’s decision with this Court in 2011. The 

Government filed an unopposed motion to remand the case back to the Board so that it 

could consider its decision in light of this Court’s intervening decision in Hanif v. 

Attorney Gen., 694 F.3d 479 (3d Cir. 2012). We granted the motion. In November 2013, 

the Board once again dismissed Alli’s appeal and sustained the appeal of DHS. 

The Board held that Alli’s convictions constituted aggravated felonies. Further, 

the Board held that while Alli was not prevented from applying for a waiver of 

inadmissibility, it would not grant the waiver. In making its discretionary determination, 

the Board weighed the negative equities of Alli’s criminal convictions against the 

positive equities of his family and his history of being a “hard worker and successful 

businessman,” “a loving and caring father,” and someone who “enjoy[ed] a good 

 

1 The Board based its decision on Matter of Koljenovic, 25 I. & N. Dec. 219 (BIA 2010), 

a case that was issued after the Immigration Judge’s decision. The Board held that Alli 

was ineligible for waiver as his adjustment of status constituted an “admission” 

subjecting him to the time and aggravated felony bars in section 212(h). 
3

reputation in the community.” [App. at 5.] The Board then concluded that the “serious 

nature of [Alli’s] participation in such a large-scale fraud and identity theft scheme” was 

a “very significant negative factor and militates strongly against a favorable exercise of 

discretion.” [App. at 5.] While the Board acknowledged the hardship Alli’s removal 

might cause to himself and his relatives, it did not engage in a fulsome discussion 

regarding whether Alli had demonstrated an extreme hardship for purposes of section 

212(h) waiver. Alli filed a petition for review, arguing the Board applied the wrong 

standard of review. The Government contends we lack jurisdiction to hear Alli’s petition

because Alli is simply challenging the Board’s discretionary weighing of factors. We 

agree with the Government.

II. 

The Board had jurisdiction to review the Immigration Judge’s decision under 

C.F.R. § 1003.1(b)(3). Hanif, 694 F.3d at 482-483. Moreover, “in general, ‘courts of 

appeals . . . have no jurisdiction to review [the Board’s] discretionary and factual 

determinations presented in petitions for review.’” Id. (quoting Jarbough v. Attorney 

Gen., 483 F.3d 184, 188 (3d Cir. 2007)). The Court retains limited jurisdiction to 

entertain valid constitutional claims and questions of law. See INA § 242(a)(2)(D), 8 

U.S.C. § 1252(a)(2)(D); Hanif, 694 F.3d at 483; Toussaint v. Attorney Gen., 455 F.3d 409 

(3d Cir. 2006); Kamara v. Attorney Gen., 420 F.3d 202 (3d Cir. 2005). 2 

 

2 Where, as in this case, “the [Board] issues its own decision on the merits, rather than a 

summary affirmance, we review its decision, not that of the [Immigration Judge].” Hanif, 

694 F.3d at 483 (citation omitted).
4

Moreover, “[n]otwithstanding any other provision of law . . . no court shall have 

jurisdiction to review . . . any other decision or action of the Attorney General . . . the 

authority for which is specified under this title to be in the discretion of the Attorney 

General. . . .” INA § 242(a)(2)(B)(ii), 8 U.S.C. § 1252(a)(2)(B)(ii); see also Sukwanputra 

v. Gonzales, 434 F.3d 627, 634 (3d Cir. 2006) (“[W]e join our sister courts in concluding 

that despite the changes of the REAL ID Act, factual or discretionary determinations 

continue to fall outside the jurisdiction of the court of appeals entertaining a petition for 

review.”); Mendez-Moranchel v. Ashcroft, 338 F.3d 176, 178 (3d Cir. 2003) (“We join 

the other circuits and conclude that, for nondiscretionary factors, the Court maintains

jurisdiction, but as to discretionary decisions we lack jurisdiction.”). 

III.

Section 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act provides that: 

“[A]ny alien convicted of, or who admits having committed, or who admits committing 

acts which constitute the essential elements of (I) a crime involving moral turpitude 

(other than a purely political offense) or an attempt or conspiracy to commit such a crime 

. . . is inadmissible.” INA § 212(h), 8 U.S.C. § 1182(h). Section 212(h) states that the 

Attorney General may waive application of section 212(a)(2)(A)(i)(I) of the Act if the 

applicant proves that denial of such a waiver would cause “extreme hardship” to a 

qualifying relative of the applicant and where the applicant otherwise demonstrates that 

he merits such relief in discretion. Matter of Mendez, 21 I. & N. Dec. 296, 301 (BIA 

1996). 
5

In this case, the Board began its analysis by balancing “the adverse factors 

evidencing [Alli’s] undesirability as a permanent resident with the social and humane 

considerations presented in his behalf to determine whether the granting of relied appears 

in the best interests of the United States.” [App. at 4.] Finding that “serious negative 

factors militate against a favorable exercise in this instance,” specifically the nature and 

breadth of Alli’s criminal acts, the Board found his case did not merit a favorable 

exercise of discretion. As such, the Board “express[ed] no opinion as to whether [Alli] 

has demonstrated extreme hardship to his qualifying relatives.” [App. at 4.]

Alli argues that the Board violated its regulations by applying the wrong standard 

of review under Huang v. Attorney General, 620 F.3d 372 (3d Cir. 2010). Specifically, 

Alli contends the Board failed to consider Appellant’s equities and only considered his 

criminal conduct. Further, Alli argues the Board failed to consider whether the denial of 

the discretionary waiver would cause extreme and unusual hardship to his family. The 

Government asserts that we lack jurisdiction to entertain Alli’s appeal because he 

challenges the Board’s discretionary findings. 

Alli relies on Huang for the proposition that that the Board must meaningfully 

consider the record and provide a sufficient explanation when it disagrees with an 

immigration judge’s decision. In Huang, we held that “when [the Board] reaches a 

different conclusion than the [Immigration Judge] . . . its review must reflect a 

meaningful consideration of the record as a whole” and the Board must “show that it 

reviewed the record and considered the evidence upon which the [Immigration Judge] 
6

relied, and it must explain why the record warrants a different conclusion than the one 

reached by the [Immigration Judge].” 620 F.3d at 387. 

Alli’s reliance on Huang to salvage his claim is misplaced for two reasons. First, 

in that case, appellant challenged the Board’s denial of asylum. Here, however, our 

review of petitions filed by aliens who have been convicted of aggravated felonies is 

limited to constitutional questions and questions of law. Alli attempts to repackage his 

challenge to the Board’s discretionary weighing of factors as a question of law, but he 

does so in vain. See Cospito v. Attorney Gen., 539 F.3d 166, 170 (3d Cir. 2008) (“A 

party cannot confer jurisdiction on this Court where none exists simply by attaching a 

particular label to the claim raised in a petition for review.”). Second, in this case, the 

Board did provide its rationale for denying discretionary waiver. The Board noted the 

inevitable hardship of Alli’s removal, but found the negative equities of Alli’s crime 

outweighed any positive equities. Huang, therefore, does not save Alli’s challenge to the 

Board’s discretionary decision on waiver. 

Alli’s argument squarely challenges the Board’s discretionary weighing of factors. 

Courts “have recognized arguments such as that an [Immigration Judge] or [the Board] 

incorrectly weighed evidence, failed to consider evidence or improperly weighed 

equitable factors are not questions of law under § 1252(a)(2)(D).” Jarbough, 483 F.3d at 

170; see also Cospito, 539 F.3d at 170; Sukwanputra, 434 F.3d at 634. By contending 

that the Board failed to consider the equities and instead focused on his criminal conduct, 

Alli clearly challenges the Board’s discretionary weighing of factors. Contrary to Alli’s 

contentions, the Board did discuss both the negative factors and the positive equities in 
7

making its decision. Ultimately, it found that the negative factors weighed against 

granting a discretionary waiver. (“In balancing the various factors in the respondent’s 

case, we take note of his equities. However, the serious nature of the respondent’s 

participation in such a large-scale fraud and identity theft scheme is a very significant 

negative factor and militates strongly against a favorable exercise of discretion.”). Alli 

fails to make out any cognizable constitutional claim or a question of law. As such, we 

lack jurisdiction to consider his claim.

IV. Conclusion

For the foregoing reasons, we lack jurisdiction to consider Alli’s claim and we 

therefore dismiss his petition for review.