2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-23-2010

Sambo Chum v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-2165

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 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 09-2165

___________

SAMBO CHUM,

 Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

 Respondent

____________________________________

On Petition for Review of an Order of the 

Board of Immigration Appeals

(Agency No. A027-371-501)

Immigration Judge: Honorable Walter A. Durling

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

March 17, 2010

Before: BARRY, STAPLETON and NYGAARD, Circuit Judges

(Opinion filed March 23, 2010)

_________

 OPINION

_________

PER CURIAM

Sambo Chum petitions for review of the Board of Immigration Appeals’ (“BIA”)

final order of removal. The Government has moved to dismiss the petition for lack of
Chum was born in a Cambodian refugee camp in Thailand. 1

Section 1229b(a) provides that the Attorney General may cancel the removal of an 2

alien who “(1) has been an alien lawfully admitted for permanent residence for not less

than 5 years, (2) has resided in the United States continuously for 7 years after having

been admitted in any status, and (3) has not been convicted of any aggravated felony.” 

8 U.S.C. § 1229b(a). If an alien meets these three requirements, the IJ, “upon review of

the record as a whole, ‘must balance the adverse factors evidencing the alien’s

undesirability as a permanent resident with the social and humane considerations

presented in his [or her] behalf to determine whether the granting of . . . relief appears in

the best interest of this country.’” In re C-V-T-, 22 I. & N. Dec. 7, 11 (BIA 1998)

(quoting Matter of Marin, 16 I. & N. Dec. 581, 584 (BIA 1978)).

2

jurisdiction. For the reasons that follow, we will deny the Government’s motion and

Chum’s petition for review.

I.

Because the background of this case is familiar to the parties, we discuss it only

briefly here. Chum, a native of Thailand and citizen of Cambodia, entered the United 1

States as a refugee in 1985 and became a lawful permanent resident in 1989. In 2007, he

pleaded guilty in Rhode Island state court to possession of a sawed-off shotgun and

possession with intent to deliver marijuana. The court sentenced him to ten years’

imprisonment, with all but eighteen months of the sentence suspended. Chum was

released from prison after serving fifteen months. Shortly after his release, he was placed

in removal proceedings.

In October 2008, Chum applied for cancellation of removal under 8 U.S.C. 

§ 1229b(a). After a hearing on the merits, the Immigration Judge (“IJ”) granted Chum’s 2

application. The IJ recognized that Chum had been a member of a gang, had dropped out
The BIA noted, without deciding, that “we are not convinced that [Chum] has 3

established his burden in demonstrating eligibility for [cancellation of removal].” 

(Decision of BIA at 2.)

3

of high school, and had both an adult and juvenile criminal record. Nonetheless, the IJ

concluded that the positive equities “slightly offset” these negative factors. (Decision of

IJ at 4.) The IJ stated that “[w]hile there is no evidence of rehabilitation in this matter,

there is evidence of rehabilitative potential, including earning his GED, having no

problems while incarcerated, completing anger management and other prison

rehabilitative-type courses, having no intention of returning to his gang, and pursuing a

trade in the culinary arts.” (Id. at 3.) The IJ also emphasized the circumstances

surrounding Chum’s entry into the United States, noting that Chum “knows nothing of

Cambodia and has no relatives he knows of residing there.” (Id.)

The Government appealed the IJ’s ruling to the BIA, arguing that (1) Chum’s drug

conviction rendered him ineligible for cancellation of removal and (2) even if Chum was

eligible, the IJ erred in granting the application. The BIA ruled on the second argument

only, holding that the IJ erred in granting Chum’s application. The BIA concluded that 3

Chum’s positive equities were insufficient to overcome the negative equities. Chum now

petitions for review of the BIA’s decision, and the Government has moved to dismiss the

petition for lack of jurisdiction.

II.

“This Court generally lacks jurisdiction to review discretionary decisions made
As the Government explains, we lack jurisdiction to review that discretionary 4

aspect of the BIA’s decision. See 8 U.S.C. § 1252(a)(2)(B)(i).

4

under § 1229b regarding cancellation of removal.” Mendez-Reyes v. Att’y Gen. of the

U.S., 428 F.3d 187, 189 (3d Cir. 2005) (citing 8 U.S.C. § 1252(a)(2)(B)(i)). Additionally,

we generally lack jurisdiction to review final orders of removal entered against aliens

convicted of certain drug offenses. See 8 U.S.C. § 1252(a)(2)(C). We retain jurisdiction,

however, over constitutional claims and questions of law. See 8 U.S.C. § 1252(a)(2)(D). 

In moving to dismiss, the Government contends that Chum’s petition challenges

merely the BIA’s discretionary balancing of the equities. We disagree. Chum claims that

the BIA applied the wrong standard of review and misapplied the balancing test

governing cancellation of removal applications. Because these claims fall within the

ambit of our jurisdiction under § 1252(a)(2)(D), the Government’s motion is denied.

III.

Although we have jurisdiction to consider Chum’s petition, he has not shown that

the BIA erred as a matter of law. Chum first claims that the BIA “applied the wrong

standard of review because it failed to defer to the [IJ’s] factual findings and reversed the

[IJ’s] decision without finding any of his findings clearly erroneous.” (Chum’s Opening

Brief at 2.) Nothing in the BIA’s decision, however, indicates that the BIA questioned

the IJ’s factual findings, let alone failed to defer to them. The BIA simply disagreed with

the IJ’s balancing of these findings. Because the BIA reviews that aspect of the IJ’s 4
5

decision de novo, see 8 C.F.R. § 1003.1(d)(3)(ii), the BIA did not need to deem the IJ’s

factual findings clearly erroneous to overturn the IJ’s grant of cancellation of removal. 

Accordingly, the BIA did not apply the wrong standard of review.

Chum’s other claim is that the BIA ignored his “principal positive equities and

ameliorating aspects of his negative equities,” (Chum’s Opening Brief at 23), thereby

preventing it from properly applying the test for balancing the equities. Although we

recognize that the BIA’s decision discussed the negative aspects of Chum’s case at

greater length than the positive aspects, the BIA did consider both. Indeed, the BIA’s

decision mentioned Chum’s rehabilitative potential, his “long time physical presence and

family ties in the United States,” and the circumstances that brought him to this country. 

(BIA Decision at 2.) The BIA simply concluded that these positive equities did not

outweigh Chum’s “criminal activities, gang affiliation, and the circumstances surrounding

his 2007 conviction involving both drugs and weapons.” (Id.) Morever, Chum has not

persuaded us that the absence in the BIA’s decision of any alleged “ameliorating aspects”

of his negative equities, such as the fact that he left the sawed-off shotgun in the trunk of

his car during the drug deal that led to his arrest, reflects anything more than the BIA’s

discretionary decision to afford this evidence little or no weight.

In light of the above, we will deny Chum’s petition for review.