2011 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

12-22-2011 

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P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al
D ock e t N o . 11-3040

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w . v i l l a no v a . e du/thir dc ir c uit_2011/45NOT 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 Revi ew 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 f or review of agency decision s 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 wi th 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 Durlin g 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 adve rse 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 rel ief 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 neve rtheless address constitutional claims or questions of law raised in a petition of review therefrom , so long as those matters are colo rable. Pareja v. Att’y Gen. , 615 F.3d 180, 186 (3d Cir. 2010)

. T he petitioner spends the majority of his opening brief arguing against the agency’s weighing of equities

. But the weighing of equities fall s 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 stat utory 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 f or 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 Ge n. , 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 or4 its equivalent in front of the BIA , and it is h ence 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 su m, 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
f

or review for lack of jurisdiction

.