2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-22-2011

Jose Mejia-Ortiz v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 11-3040

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 11-3040

___________

JOSE MEJIA-ORTIZ,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

____________________________________

Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A046-054-538)

Immigration Judge: Honorable Walter A. Durling

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

December 14, 2011

Before: RENDELL, VANASKIE and GARTH, Circuit Judges

(Opinion filed: December 22, 2011 )

_________

OPINION OF THE COURT

_________

PER CURIAM

Jose Mejia-Ortiz, a native and citizen of the Dominican Republic and a permanent 

resident of the United States, petitions for review of agency decisions denying his request 

for cancellation of removal. We agree with the respondent that we lack jurisdiction and 

will, accordingly, dismiss the petition.
2

The Administrative Record (A.R.) reveals that the petitioner was charged with 

removability under 8 U.S.C. § 1227(a)(2)(C). A.R. 456. In response, he applied for 

cancellation of removal. A.R. 185–91. In an oral opinion issued March 24, 2011, 

Immigration Judge (IJ) Walter A. Durling applied standards used to guide “the exercise

of discretion for cancellation,” A.R. 65, concluding that the petitioner “[was] unable to 

show rehabilitation []or anything but perhaps a low-level of rehabilitative potential,” 

A.R. 69 (emphasis added). Having weighed the applicable equities, IJ Durling 

determined “that it would not be in the best interest of the United States to grant this 

application” for cancellation of removal. A.R. 70. 

On appeal to the BIA, the petitioner argued, essentially, that the IJ had erred in his 

exercise of discretion.

1

While Courts of Appeals have jurisdiction to review final orders of removal under 

 A.R. 24–29. The BIA dismissed the appeal, as IJ Durling had 

“correctly conclude[d] that the [petitioner did] not merit cancellation of removal in the 

exercise of discretion.” A.R. 3; see also A.R. 4 (“[H]aving similarly considered and 

weighed the adverse factors evidencing the [petitioner’s] undesirability as a permanent 

resident with the social and humane considerations presented [o]n his behalf . . . we find 

that [he] presented no arguments that would cause us to disturb the . . . conclusion that 

relief was not warranted . . . in the exercise of discretion.”). This timely petition for 

review followed. 

 1 Petitioner’s notice of appeal to the BIA raised several additional grounds, such as the 

IJ’s failure “to consider all of the evidence in [the] case,” A.R. 53, that were not 

incorporated into his eventual agency brief. 
3

8 U.S.C. § 1252(a)(1), that jurisdiction explicitly does not extend to “[d]enials of 

discretionary relief” under 8 U.S.C. § 1229b. See 8 U.S.C. § 1252(a)(2)(B)(i); see also

Patel v. Att’y Gen., 619 F.3d 230, 232 (3d Cir. 2010). Despite this limitation on our 

power to review cancellation-of-removal decisions, we may nevertheless address 

constitutional claims or questions of law raised in a petition of review therefrom, so long 

as those matters are colorable. Pareja v. Att’y Gen., 615 F.3d 180, 186 (3d Cir. 2010). 

The petitioner spends the majority of his opening brief arguing against the 

agency’s weighing of equities. But the weighing of equities falls squarely within the 

heartland of processes that we cannot review: agency action resting purely on an exercise 

of discretion, rather than on, for example, an alien’s statutory eligibility for the relief in 

question. We plainly lack jurisdiction over such a discretionary outcome. 

The petitioner also appears to raise two additional claims for relief. First, he

asserts that IJ Durling “concluded that he was not eligible for cancellation of removal 

because of his aggravated felony convictions.” We “have always had jurisdiction to 

determine our own jurisdiction by engaging in an analysis of whether an alien was 

convicted of a[n] . . . aggravated felony.” Stubbs v. Att’y Gen., 452 F.3d 251, 253 n.4 

(3d Cir. 2006). Yet as we observed supra, IJ Durling did not deny relief under the 

aggravated-felony bar of 8 U.S.C. § 1229b(a)(3), but instead did so after a discretionary 

weighing of equities—the approach also taken by the BIA. The petitioner also contends 

that “his crime of gun possession is not one involving moral turpitude.” This aside 

cannot confer jurisdiction on this tribunal, as the petitioner did not raise the argument or 
4

its equivalent in front of the BIA, and it is hence jurisdictionally defective itself. Lin v. 

Att’y Gen., 543 F.3d 114, 119 (3d Cir. 2008). Besides, it is irrelevant whether the crime 

of gun possession is one implicating “moral turpitude”; such a determination did not 

inform the basis of the agency’s decisions, see Konan v. Att’y Gen., 432 F.3d 497, 501 

(3d Cir. 2005), and in any case, crimes of moral turpitude do not serve as a bar to 

cancellation-of-removal relief for permanent residents. Compare 8 U.S.C. § 1229b(a), 

with 8 U.S.C. § 1229b(b).

In sum, as the agency decisions were based solely on a judicially unreviewable

exercise of discretion, and as the petitioner raises no colorable constitutional claims or 

questions of law that we would otherwise be able to address, we will dismiss his petition 

for review for lack of jurisdiction.