NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 15-1113

___________

ROBERT F. SKEFFERY,

AKA Howard Woodhouse,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA,

 Respondent

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A037-755-660)

Immigration Judge: Honorable Andrew Arthur

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

July 1, 2015

Before: AMBRO, VANASKIE and SLOVITER, Circuit Judges

(Opinion filed: July 2, 2015)

___________

OPINION*

___________

PER CURIAM

Robert F. Skeffery, a native and citizen of Jamaica, petitions for review of the 

Board of Immigration Appeals’ (BIA or Board) order denying his motion to reopen 

 

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

constitute binding precedent.
2

deportation proceedings. For the following reasons, we will dismiss in part and deny in 

part the petition for review. 

Skeffery was placed in deportation proceedings in 1994, based on convictions for 

controlled substance violations. He was deported in July 1996, but reentered the United 

States. In 2003, he was convicted in Pennsylvania of committing additional crimes, 

including possession of marijuana and firearms offenses. Skeffery successfully moved to 

reopen his proceedings, and the Government lodged an additional charge of deportability 

under former Immigration and Nationality Act (INA) § 241(a)(2)(C) [8 U.S.C. § 

1227(a)(2)(C)] (providing that (“[a]ny alien who at any time after admission is convicted 

under any law of . . . possessing . . . a firearm . . . in violation of any law is deportable.”). 

In June 2007, Skeffery appeared pro se before an Immigration Judge (IJ), who found him 

deportable as charged and ineligible for relief. Skeffery waived appeal.1 

In October 2013, Skeffery filed a motion to reopen the proceedings, arguing that 

his waiver of his right to appeal was not knowing and that he was not informed of his 

 

1

In July 2007, Skeffery was again deported to Jamaica. He returned to the United States 

in December 2009, and applied for entry using altered Canadian identification 

documents. In 2013, he was convicted in the United States District Court for the 

Southern District of California of attempted entry after deportation. See INA § 276 [8 

U.S.C. § 1326]. The Government also placed Skeffery in removal proceedings on the 

grounds that he attempted to gain entry into the United States by fraudulently or willfully 

misrepresenting a material fact, INA § 212(a)(6)(C)(i) [8 U.S.C. § 1182(a)(6)(C)(i)], and 

that he did not have a valid, unexpired immigrant visa, § 212(a)(7)(A)(i)(I) [8 U.S.C. 

§ 1182(a)(7)(A)(i)(I)]. According to the Government, “[t]hose removal proceedings are 

separate and apart from the deportation proceedings at issue in the instant case and Mr. 

Skeffery’s removal proceedings are ongoing.” Res’p’s Br., 7 n.4.
3

eligibility for relief under former INA § 212(c) [8 U.S.C. § 1182(c)]. The IJ denied the 

motion, but the BIA remanded for further consideration in light of its decision in In re 

Abdelghany, 26 I. & N. Dec. 254, 260 n.11 (BIA 2014) (clarifying that “repeal of section 

212(c) is inapplicable to any alien in deportation proceedings, even if those proceedings 

commenced after April 24, 1996, and even where a conviction providing a basis (or an 

additional basis) for deportability was entered on or after April 1, 1997.”). On remand, 

the IJ found that Skeffery’s motion to reopen was untimely and concluded that it was not 

appropriate to reopen the proceedings in the exercise of discretion. The IJ further 

explained that “[w]hile [Skeffery] may be statutorily eligible to apply for 212(c) relief 

. . ., he has not established that he warrants a favorable exercise of discretion.”2 The BIA 

upheld the IJ’s decision, concluded that there was no basis for sua sponte reopening, and 

dismissed Skeffery’s appeal. Skeffery filed a petition for review. 

Under INA § 242(a)(1) [8 U.S.C. § 1252(a)(1)], we have jurisdiction to review 

final orders of removal, including the denial of a motion to reopen any such final order.3 

 

2 The IJ “assign[ed] weight” to Skeffery’s family ties in the United States, his residence 

in this country “for at least fifteen years,” and letters of support from family and friends. 

The IJ concluded, however, that those factors were outweighed by Skeffery’s “extensive 

criminal history” (which included eight controlled substance convictions and a firearms 

conviction) and “multiple unlawful reentries [which] demonstrate a flagrant disregard for 

the immigration laws of the United States.” 

3 Skeffery argues that because he was placed in deportation proceedings in 1994, and the 

challenged final deportation order was entered in 2007, the transitional rules of the Illegal 

Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) apply. See

Bakhtriger v. Elwood, 360 F.3d 414, 417 n.2 (3d Cir. 2004) (stating that “[a]ll removal 

cases commenced before April 1, 1997, in which a final order of deportation was filed 
4

See Cruz v. Att’y Gen., 452 F.3d 240, 246 (3d Cir. 2006); Oliva-Ramos v. Att’y Gen., 

694 F.3d 259, 270 (3d Cir. 2012) (stating that the decision to deny a motion to reopen is 

reviewed for abuse of discretion). But the jurisdiction-stripping provisions of INA 

§ 242(a)(2) [8 U.S.C. § 1252(a)(2)] may limit or eliminate our jurisdiction to review such 

denials. For instance, “no court shall have jurisdiction to review . . . any other decision or 

action of the Attorney General . . . the authority for which is specified under [relevant 

provisions of the INA] to be in the discretion of the Attorney General.” INA 

§ 242(a)(2)(B)(ii) [8 U.S.C. § 1252(a)(2)(B)(ii)]. In addition, when an alien is removable 

for having committed an offense enumerated in INA § 242(a)(2)(C), we lack jurisdiction 

to review a denial of a motion to reopen.4 But the REAL ID Act of 2005 restored direct 

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

final removal orders. See Cruz, 452 F.3d at 246-47; INA § 242(a)(2)(D) [8 U.S.C. 

§ 1252(a)(2)(D)]. 

 

after October 30, 1996 are subject to the transitional rules.”). But the Government 

correctly notes that, pursuant to the REAL ID Act of 2005, a challenge to an order of 

deportation in a “transitional rules” case is to be treated as if it had been filed under the 

Immigration and Nationality Act § 242 [8 U.S.C. § 1252]. See Gov’t’s Br., 2 n.2; see 

also Joseph v. Att’y Gen., 421 F.3d 224, 229 (3d Cir. 2005). 

4 One of the offenses enumerated in § 242(a)(2)(C) [8 U.S.C § 1252(a)(2)(C)] is INA 

§ 237(a)(2)(C) [8 U.S.C. § 1227(a)(2)(C)], which is a recodification of § 241(a)(2)(C), 

the basis for Skeffery’s deportability. Cf. McAllister v. Att’y Gen., 444 F.3d 178, 184 

(3d Cir. 2006) (holding that the jurisdictional bar of § 242(a)(2)(C) applies when the 

“actual basis for the final order of removal was the alien’s commission of one of the 

enumerated offenses.”). 
5

Initially, we note that Skeffery’s petition for review is timely only as to the BIA’s 

denial of his motion to reopen. See INA § 242(b)(1) [8 U.S.C. § 1252(b)(1)] (providing 

that a “petition for review must be filed not later than 30 days after the date of the final 

order of removal”). Therefore, we cannot review his claim that the IJ violated his due 

process rights by failing to notify him of eligibility for § 212(c) relief, under 8 C.F.R. 

§ 1240.11(a)(2), during his June 2007 deportation hearing. Furthermore, to the extent 

that Skeffery challenges the Board’s conclusion that he does not warrant the favorable 

exercise of discretion for relief under § 212(c), we lack jurisdiction. See INA 

§ 242(a)(2)(B)(ii); INS v. St. Cyr, 533 U.S. 289, 325 (2001) (stating that the decision to 

grant or deny relief pursuant to former section 212(c) is a discretionary one). 

Skeffery also asserts that reopening was warranted because Abdelghany rendered 

him eligible for § 212(c) relief. Although we retain jurisdiction to consider questions of 

law related to statutory eligibility for § 212(c) relief, see Lupera-Espinoza v. Att’y Gen., 

716 F.3d 781, 785 (3d Cir. 2013), the IJ and the BIA did not assess Skeffery’s eligibility. 

Instead, the IJ held that “while [Skeffery] may be statutorily eligible to apply for § 212(c) 

relief . . . he has not established that he warrants a favorable exercise of discretion.” See

INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general rule courts and agencies are 

not required to make findings on issues the decision of which is unnecessary to the results 

they reach.”). Moreover, there is no merit to Skeffery’s argument that the IJ and the BIA 

improperly considered as an adverse factor his convictions that occurred after he was first 

ordered deported in 1995. Cf. Parcham v. INS, 769 F.2d 1001, 1005 n.2 (4th Cir. 1985) 
6

(stating that “the Attorney General is entitled to consider the facts as they exist at the time 

he acts.”); Matter of Marin, 16 I. & N. Dec. 581, 584 (BIA 1978) (noting that adverse 

factors in § 212(c) determination include recency of criminal record). Finally, contrary to 

Skeffery’s suggestion, we generally lack jurisdiction to review the BIA’s refusal to 

reopen sua sponte because the Board’s authority is committed to its unfettered discretion 

and there is no meaningful standard against which the exercise of that discretion can be 

judged. See Cruz, 452 F.3d at 249-50. Skeffrey does not meaningfully allege that the 

Board relied on an incorrect legal premise in declining to exercise its sua sponte authority 

to reopen. See Pllumi v. Att’y Gen., 642 F.3d 155, 160 (3d Cir. 2011). 

For the foregoing reasons, we will dismiss the petition for review in part and deny 

it in part.