1

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 11-1235

___________

MUN SEOK LEE,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A039-759-466)

Immigration Judge: Honorable Miriam K. Mills

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

June 16, 2011

Before: AMBRO, GREENAWAY, JR. and GREENBERG, Circuit Judges

(Opinion filed: June 17, 2011)

___________

OPINION

___________

PER CURIAM

Mun Seok Lee, a citizen of South Korea, was admitted to the United States as a 

lawful permanent resident in 1985. In 1994, he was convicted in New Jersey state court 
of possession of a handgun without a permit. The Department of Homeland Security 

served Lee with a Notice to Appear in January 2008, charging him with removability for 

having committed a firearms offense. Immigration and Nationality Act (“INA”) § 

237(a)(2)(C) [8 U.S.C. § 1227(a)(2)(C)]. Lee conceded that he was removable and, 

through counsel, applied for cancellation of removal under INA § 240A [8 U.S.C. § 

1229b]. The Immigration Judge (“IJ”) concluded that Lee was statutorily eligible for 

cancellation but denied relief as a matter of discretion. In particular, the IJ found that Lee 

“has not demonstrated that he is worthy of the Court’s favorable exercise of discretion 

based on [his] pattern of engaging in unlawful conduct related to his alcohol intoxication 

as reported in conviction and/or arrest records occurring from 1993 to 2008.”1

 Lee 

appealed.2

 1 In addition to the handgun possession offense, which according to the IJ 

“implicated [Lee’s] intoxication as an operative factor,” Lee also had three arrests for 

driving while under the influence. Two of the arrests resulted in DUI convictions; the 

other resulted in a conviction for reckless driving. In addition, Lee had been arrested 

twice for disorderly conduct related to his consumption of alcohol. The most recent 

arrest occurred while Lee was in removal proceedings. 

2 While the appeal was pending, Lee filed a motion to reopen, which the Board of 

Immigration Appeals (“BIA”) treated as a motion to remand. See Korytnyuk v. Ashcroft, 

396 F.3d 272, 282 (3d Cir. 2005) (holding that a motion to remand is equivalent to 

motion to reopen filed while appeal is pending). The Board denied the motion, stating 

that the “evidence submitted does not warrant a remand for further proceedings in part 

because the respondent has not explained why the evidence could not have been obtained 

earlier for presentation and in part because we conclude that it would not alter the 

outcome of this case.” Lee does not challenge that decision in these proceedings. 

Bradley v. Att’y Gen., 603 F.3d 235, 243 n.8 (3d Cir. 2010) (recognizing that that the 

failure to identify or argue an issue constitutes waiver of that issue on appeal).
The BIA dismissed Lee’s appeal on January 24, 2011, holding that Lee’s “positive 

equities do not outweigh the adverse factors in this case.”3

 3 The BIA originally dismissed the appeal on August 26, 2010, but then granted 

Lee’s motion to reconsider because the order was entered before Lee had an opportunity 

to file his brief. 

 The Board rejected Lee’s 

claim that the IJ required him to satisfy a threshold test of showing “unusual or 

outstanding” equities in contravention of Matter of Sotelo-Sotelo, 23 I. & N. Dec. 201 

(BIA 2001). Rather, the BIA determined that the IJ “properly performed a complete 

review of the favorable and adverse factors to determine whether, on balance, the totality 

of the evidence indicated that [Lee] had adequately demonstrated that he warrants a 

favorable exercise of discretion.” According to the BIA, the “substantial” positive 

equities included Lee’s “lengthy lawful permanent residence,” his family ties in the 

United States (including his United States citizen wife and three children), the fact that he 

owns several successful businesses that employ about 40 people, his history of paying 

taxes, and his active participation in his church and the community. The adverse factors 

included his criminal history (including the “nature, number, and recency of the[] 

offenses”). The Board also noted that Lee’s claims of rehabilitation were not supported 

by the record, that he attended only those Alcoholics Anonymous meetings that were 

mandated as part of a criminal sentence, that he was arrested for alcohol-related unlawful 

conduct after the completion of some court-ordered treatment programs, that he was not 

forthcoming in his testimony about his use of alcohol in connection with his arrests, and 
that, by his own admission, he continued to drink alcohol.

4

The Government has moved to dismiss the petition for review, arguing that this 

Court lacks jurisdiction to hear Lee’s claims because he seeks review of an order denying 

cancellation of removal in the exercise of discretion. We generally have no jurisdiction 

to review discretionary decisions made regarding cancellation of removal, INA 

§ 242(a)(2)(B) [8 U.S.C. § 1252(a)(2)(B)]; Mendez-Reyes v. Att’y Gen., 428 F.3d 187, 

189 (3d Cir. 2005). Despite this jurisdictional limitation, however, we may review 

“constitutional claims and questions of law presented in petitions for review of final 

removal orders.” Papageorgiou v. Gonzales, 413 F.3d 356, 358 (3d Cir. 2005) (citing

INA § 242(a)(2)(D)). Therefore, we have jurisdiction to consider whether the Board, in 

exercising its discretion, violated a rule of law or a provision of the Constitution. See

Chen v. Dep’t of Justice, 471 F.3d 315, 329 (2d Cir. 2006) (holding that a petition raises 

a question of law when it alleges a “fact-finding which is flawed by an error of law” or an 

“abuse of discretion” that is “based on a legally erroneous standard”). 

 Lee filed a petition for 

review. 

Lee claims that the IJ and the BIA “improperly impos[ed] a higher burden upon 

[him] to show unusual or outstanding positive equities due to his criminal convictions . . . 

[i]nstead [of] utilizing the appropriate standard of weighing the totality of the evidence of 

 4 Although the Board agreed with Lee that the IJ erred by requiring that he present 

“expert testimony” to show that he no longer posed a public risk, the BIA concluded that, 

“in the absence of rehabilitation,” the danger to the public created by [Lee’s] pattern of 

alcohol-related unlawful conduct constitutes a very serious adverse factor weighting 

against a favorable exercise of discretion.”
positive and negative factors in the record . . . .” Our jurisdiction extends to such a claim. 

Khan v. Gonzales, 495 F.3d 31, 35 (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”). Consequently, we will deny the government’s 

motion to dismiss.

In addition to satisfying the statutory eligibility requirements, see INA § 240A(a), 

an applicant for cancellation of removal must establish that he or she warrants such relief 

as a matter of discretion. In re: C-V-T-, 22 I. & N. Dec. 7, 13 (BIA 1998). In Matter of 

Buscemi, 19 I. & N. Dec. 628 (BIA 1988), the BIA stated that “an alien who 

demonstrates unusual or outstanding equities, as required, merely satisfies the threshold 

test for having a favorable exercise of discretion considered in his case.” Id. at 634. 

Subsequently, however, the BIA noted that the “unusual or outstanding equities” 

language could be “misleading, as it might be read to imply that a full examination of an 

alien’s equities can somehow be pretermitted.” Matter of Edwards, 20 I. & N. Dec. 191, 

196 n.3 (BIA 1990). In Sotelo-Sotelo, the Board reiterated that it would not apply a 

threshold test in cancellation of removal cases. 23 I. & N. Dec. at 204.

Here, the IJ stated that “[t]he recency, the quantity of the[] alcohol-related arrests 

and convictions[,] and the serious nature of them poses a public risk . . . [that] would 

require [Lee] to offset these negative factors with unusual or outstanding equities.” 

Despite the reference to “unusual or outstanding equities,” we agree with the BIA that the 
IJ did not require that Lee satisfy an improper threshold test. Rather, the IJ properly 

applied the principle that “as 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.” Matter of Edwards, 20 

I. & N. Dec. at 195. Likewise, the Board properly “weigh[ed] the favorable and adverse 

factors to determine whether, on balance, the totality of the evidence before [it] 

indicat[ed] that [Lee] adequately demonstrated that he warrant[ed] a favorable exercise of 

discretion . . . .” Sotelo-Sotelo, 23 I. & N. Dec. at 204 (internal quotation omitted). 

Relatedly, there is no merit to Lee’s contention that the Board did not “conduct the 

required complete review of the favorable factors.” The BIA specifically cited many of 

Lee’s positive equities, ultimately concluding that they were “substantial.” Sevoian v. 

Ashcroft, 290 F. 3d 166, 178 (3d Cir. 2002) (stating that the “Board is not required to 

write an exegesis on every contention, but only to show that it has reviewed the record 

and grasped the movant’s claims”). Although Lee complains that the BIA “listed those 

[positive] factors in cursory fashion in five short sentences,” we have emphasized that 

“there is no advantage in writing a long opinion when a short one will do.” Toussaint v. 

Att’y Gen., 455 F.3d 409, 414 (3d Cir. 2006). Finally, we lack jurisdiction over Lee’s 

claim that the BIA did not properly credit evidence of rehabilitation. Cospito v. Att’y 

Gen., 539 F.3d 166, 170 (3d Cir. 2008). 

For the above reasons, we will deny the petition for review.

5

 5 The Government’s motion to dismiss is denied.