NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 15-2390

___________

BRAHIM ZHOURI,

 Petitioner

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA,

 Respondent

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A056-457-403)

Immigration Judge: Honorable Quynh V. Bain

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

November 16, 2015

Before: FUENTES, VANASKIE and SCIRICA, Circuit Judges

(Opinion filed: December 14, 2015 )

___________

OPINION*

___________

PER CURIAM

 

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

constitute binding precedent.
2

Brahim Zhouri petitions for review of his final order of removal. We will dismiss 

the petition in part and deny it part.

I.

Zhouri is a citizen of Morocco who became a lawful permanent resident of the 

United States. In 2012, his former live-in girlfriend obtained a Protection From Abuse 

order (“PFA”) against him in Dauphin County, Pennsylvania, following an incident in 

which she alleged that Zhouri cut her with a knife. As a result of that incident, Zhouri 

pleaded guilty to simple assault on March 26, 2013. Zhouri’s former girlfriend later told 

authorities that she returned to her residence one night and found Zhouri there in 

violation of the PFA. That incident resulted in Zhouri’s pleas of guilty (1) on January 7, 

2014, to indirect criminal contempt for violating the PFA, and (2) on February 11, 2014, 

to criminal trespass.

The Government later charged Zhouri with removability as an “alien who at any 

time after admission is enjoined under a protection order issued by a court and whom the 

court determines has engaged in conduct that violates the portion of a protection order 

that involves protection against credible threats of violence, repeated harassment, or 

bodily injury to the person or persons for whom the protection order was issued[.]” 8 

U.S.C. § 1227(a)(2)(E)(ii). 

An Immigration Judge (“IJ”) found Zhouri removable on that basis (A.R. 121), 

and Zhouri applied for cancellation of removal under 8 U.S.C. § 1229b(a). After Zhouri 

notified the IJ that he was seeking relief from his convictions under Pennsylvania’s Post 
3

Conviction Relief Act (“PCRA”), the IJ continued his hearing to allow him to pursue 

PCRA relief. The PCRA court ultimately denied Zhouri’s PCRA petition, and the IJ 

proceeded with Zhouri’s hearing on cancellation. At the hearing, Zhouri, his sister and 

her husband testified. Zhouri claimed that he had not committed any crime but had 

pleaded guilty only because he felt pressured and wanted to avoid jail. The IJ concluded 

that Zhouri was statutorily eligible for cancellation, but she denied his application after 

balancing the positive and negative factors and determining that he did not merit a 

favorable exercise of discretion. See In re C-V-T-, 22 I. & N. Dec. 7, 11 (BIA 1998). 

In particular, the IJ concluded that Zhouri was “not entirely credible” because his 

denials of criminal conduct contradicted the police reports and his guilty pleas. The IJ 

also ruled in the alternative that, even if Zhouri were credible, he still did not merit a 

favorable exercise of discretion. The IJ acknowledged the equities in Zhouri’s favor, 

including his gainful employment in and family ties to the United States, but she 

concluded that they were outweighed by his recent criminal convictions and the fact that 

his family ties to Morocco are even greater. The Board of Immigration Appeals (“BIA”) 

agreed with the IJ and dismissed Zhouri’s appeal on the merits. Zhouri was represented 

by counsel before the IJ and the BIA, but he now petitions for review pro se. 

II.

We have jurisdiction to review final orders of removal pursuant to 8 U.S.C. § 

1252(a)(1), but we lack jurisdiction to review the discretionary denial of cancellation of 

removal except to the extent that a petition presents a constitutional claim or question of 
4

law. See 8 U.S.C. § 1252(a)(2)(B)(i), (a)(2)(D); Johnson v. Att’y Gen., 602 F.3d 508, 

510 (3d Cir. 2010). The Government has filed a motion to dismiss Zhouri’s petition for 

lack of jurisdiction on the ground that Zhouri has raised only factual and discretionary 

challenges that we lack jurisdiction to review. We agree in part and will dismiss the 

petition to the extent that it raises such challenges.1

Zhouri’s brief can be construed to raise three issues that arguably are legal in 

nature, but each lacks merit. First, Zhouri cites C-V-T- and appears to argue that the IJ 

failed to apply the proper legal standard because the IJ relied solely on the factors 

weighing against cancellation without considering the factors weighing in its favor. Both 

the IJ and the BIA, however, expressly applied the C-V-T- standard and acknowledged 

equities weighing in favor of cancellation. Zhouri does not specify any specific favorable 

factor that he believes the Agency overlooked, and any argument in that regard likely 

would raise a non-reviewable factual issue even if he had. See Jarbough, 483 F.3d at 

189.

Second, Zhouri argues that the IJ should not have relied on his guilty pleas and 

resultant convictions because he did not understand the immigration consequences of 

pleading guilty and is seeking collateral relief on that basis. Zhouri did not directly 

 

1 Zhouri argues, for example, that his testimony supports the relief he requested, that the 

positive factors outweigh any negative factors, and that the evidence does not establish 

his danger to the community. “[A]rguments such as that an [IJ] or the BIA incorrectly 

weighed evidence, failed to consider evidence or improperly weighed equitable factors 

are not questions of law under § 1252(a)(2)(D).” Jarbough v. Att’y Gen., 483 F.3d 184, 

189 (3d Cir. 2007).
5

appeal his convictions, however, and convictions remain final for immigration purposes 

notwithstanding the pendency of a collateral attack. See Paredes v. Att’y Gen., 528 F.3d 

196, 198-99 (3d Cir. 2008). The IJ continued Zhouri’s hearing to permit him to pursue 

such an attack before the PCRA court, which denied his petition, and Zhouri does not 

claim that his convictions have been otherwise invalidated. Thus, the IJ did not err in 

relying on Zhouri’s presumptively valid convictions.2

Finally, Zhouri argues that the IJ improperly relied on police reports containing 

hearsay statements by his former girlfriend and should have given more weight to his live 

testimony. To the extent Zhouri argues that the IJ should have weighed the police reports 

and his testimony differently, that argument presents a factual or discretionary 

determination that we lack jurisdiction to review. See Ramirez-Matias v. Holder, 778 

F.3d 322, 326 (1st Cir. 2015) (holding that a petitioner’s “disagreement with the agency’s 

 

2 Zhouri appended to his brief certain documents relating to his PCRA proceeding. He 

also has filed a motion to enlarge the record with a copy of his brief on his still-pending 

PCRA appeal to the Pennsylvania Superior Court. From that filing, it appears that 

Zhouri’s PCRA challenge is limited to his conviction of criminal trespass. The 

Government opposes Zhouri’s motion and has filed a motion of its own to strike the 

materials appended to Zhouri’s brief. We agree with the Government that our review 

generally is limited to the Administrative Record. See 8 U.S.C. § 1252(b)(4)(A). We 

need not address the merits of these motions, however, because consideration of Zhouri’s 

new evidence would not affect the outcome of this petition for the reasons discussed 

above. If Zhouri succeeds in invalidating a relevant conviction on collateral review, his 

remedy will be to file a motion to reopen with the BIA. See Cruz v. Att’y Gen., 452 F.3d 

240, 246 (3d Cir. 2006). We express no opinion on whether invalidation of the 

conviction he challenges in his PCRA proceeding or any other would warrant relief.
6

view of the relative credibility of the police reports and the testimony proffered to 

contradict them” raised a factual issue unreviewable in this context). 

To the extent Zhouri argues that it was legally impermissible for the IJ to rely on 

the police reports, his argument lacks merit. The Federal Rules of Evidence do not apply 

in administrative immigration proceedings, and Zhouri does not claim that the police 

reports were so unreliable as to render their use fundamentally unfair as a matter of due 

process. See Ezeagwuna v. Ashcroft, 325 F.3d 396, 405 (3d Cir. 2003). Other Courts of 

Appeals and the BIA have held that IJs may rely on police reports in determining how to 

exercise their discretion even when those reports relate to arrests that did not result in a 

conviction. See, e.g., Arias-Minaya v. Holder, 779 F.3d 49, 54 (1st Cir. 2015) (collecting 

cases); In re Thomas, 21 I. & N. Dec. 20, 23 (BIA 1995) (same). We need not address 

that issue in this case because Zhouri pleaded guilty and his convictions remain final and 

presumptively valid for immigration purposes. Zhouri testified that he did not actually 

commit the crimes at issue, but the IJ concluded that his testimony was at odds with the 

police reports and his own guilty pleas. We discern no legal error in the IJ’s reliance on 

the police reports under these circumstances.

For these reasons, the Government’s motion to dismiss is granted in part and 

denied in part, and we will dismiss in part and deny in part Zhouri’s petition for review. 

Zhouri’s motion to expand the record and the Government’s motion to strike documents 

appended to his brief are denied.