Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-25-2008

Johnson v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-5141




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                                                                  NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT

                                    Case No: 06-5141

                           KEVIN DAINSWOOD JOHNSON,

                                                   Petitioner

                                             v.

                 ATTORNEY GENERAL OF THE UNITED STATES,

                                                   Respondent


             On Petition for Review from the Board of Immigration Appeals,
                           United States Department of Justice
                                 BIA No. A38-744-659


                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                  February 14, 2008

                   Before: SLOVITER, and SMITH, Circuit Judges,
                             DIAMOND, District Judge*

                                (Filed: February 25, 2008)



                                        OPINION


SMITH, Circuit Judge.

       Kevin Johnson, a native and citizen of Guyana, petitions this Court for review of a


   *
   The Honorable Gustave Diamond, Senior District Judge for the United States District
Court for the Western District of Pennsylvania, sitting by designation.
December 4, 2006 order of the Board of Immigration Appeals (“BIA”). The Attorney

General has moved to dismiss Johnson’s petition on the ground that the BIA’s order was

an exercise of discretion over which this Court lacks jurisdiction. For the reasons

provided below, we will grant the Attorney General’s motion.

       In an Order to Show Cause dated January 17, 1997, the former Immigration and

Naturalization Service (“INS”) charged Johnson with being deportable as a result of his

conviction for possession of cocaine with intent to distribute within one thousand feet of

school property. Johnson conceded his deportability but sought a waiver pursuant to

former Section 212(c) of the Immigration and Nationality Act (“INA”), 8 U.S.C.

§ 1182(c) (repealed 1996). The Immigration Judge (“IJ”) found Johnson to be statutorily

ineligible for this relief and ordered his deportation to Guyana, and the BIA affirmed the

IJ’s decision in an order dated January 29, 1998. On March 29, 2005, Johnson filed a

Motion to Reopen pursuant to INS v. St. Cyr, 

, 320 (2001), and the

regulations implementing that decision, promulgated at 8 C.F.R. § 1212.3(g) (2004). The

BIA granted the motion and remanded the matter to the IJ.1 This time, it was undisputed

that Johnson was statutorily eligible for a § 212(c) waiver, so the only issue before the IJ

was whether to exercise discretion to grant such relief.

       On July 21, 2006, following a hearing, the IJ denied Johnson’s request for a



   1
     Johnson had filed a Petition for Writ of Habeas Corpus with the U.S. District Court
for the District of New Jersey on November 14, 2000. He voluntarily dismissed the
habeas petition after the BIA granted his Petition to Reopen.
                                              2
waiver. The IJ concluded that Johnson had not shown “unusual or outstanding equities”

and therefore had not met the threshold standard for discretionary relief. Cf. Matter of

Buscemi, 19 I. & N. Dec. 628, 633–34 (BIA 1988) (explaining that aliens convicted of

serious offenses may be required to show unusual or outstanding equities to satisfy the

“threshold test for having a favorable exercise of discretion considered in his case”).

Johnson appealed the IJ’s discretionary denial of a waiver to the BIA. On December 4,

2006, the BIA dismissed Johnson’s appeal on grounds slightly different from those that

the IJ had identified. The BIA rejected the IJ’s conclusion that Johnson had failed to

show “unusual or outstanding equities,” but it nonetheless denied the waiver after

concluding that, although “unusual or outstanding equities” were present, the balance of

equities still weighed against Johnson. Johnson petitions for review of the BIA’s decision

and asserts that this Court has jurisdiction under INA § 242(a)(1), codified at 8 U.S.C.

§ 1252(a)(1).

       Under the INA, discretionary denials of relief are not subject to judicial review:

                Notwithstanding any other provision of law . . . no court shall have
                jurisdiction to review . . . any other decision or action of the Attorney
                General or the Secretary of Homeland Security the authority for which is
                specified under this subchapter to be in the discretion of the Attorney
                General or the Secretary of Homeland Security, other than the granting of
                relief under section 1158(a) of this title.

See 8 U.S.C. § 1252(a)(2)(B)(ii), as amended by the REAL ID Act of 2005, Pub. L. No.

109-13, Div. B, 119 Stat. 231 (May 11, 2005). The “subchapter” in question is

Subchapter II in Chapter 12 of Title 8 of the United States Code, which includes 8 U.S.C.


                                              3
§ 1151 through § 1381. INA § 212(c), formerly found at 8 U.S.C. § 1182(c), fell within

the subchapter and stated that any decision to grant relief under this provision was within

“the discretion of the Attorney General.” Thus, § 1252(a)(2)(B)(ii) establishes that courts

lack jurisdiction over § 212(c) decisions unless they fall within the exception created by 8

U.S.C. § 1252(a)(2)(D) for review of constitutional claims or questions of law. See

Avendano-Espejo v. Dep't of Homeland Sec., 

, 505 (2d Cir. 2006).

       Johnson argues that we have jurisdiction to review the BIA’s decision because the

BIA reversed the IJ “as a matter of law” when it rejected the IJ’s conclusion that Johnson

had failed to show “outstanding and unusual equities.” Johnson argues that by

proceeding to balance the equities itself instead of remanding the matter to the IJ, the BIA

exceeded its authority and usurped the IJ’s fact-finding role. Because the BIA’s action

went beyond mere review of the IJ’s discretionary decision, Johnson claims, the INA’s

limitation on judicial review of discretionary decisions does not apply.

       We conclude that the BIA’s decision was no more than an exercise of discretion.

Johnson fails to show that the BIA engaged in improper fact-finding. All of the facts that

the BIA cites—e.g., that Johnson’s last arrest took place while he was on probation, that

he was placed into administrative segregation during his incarceration, and that he failed

to register for Selective Service—come directly from the IJ’s decision of July 21, 2006.

Johnson confuses fact-finding with balancing of equities when he asserts that the BIA

“did not have the right to engage in that weighing [of equities] at all pursuant to 8 C.F.R.

§ 1003.1(d)(3)(iv) (2006).” In fact, 8 C.F.R. § 1003.1(d)(3)(iv) states that the BIA may

                                              4
not “engage in factfinding in the course of deciding appeals.” It says nothing about

balancing of equities, which is allowed under 8 C.F.R.§ 1003.1(d)(3)(ii) (“The Board may

review questions of law, discretion, and judgment and all other issues in appeals from

decisions of immigration judges de novo.”).

       Moreover, Johnson presents no authority for the proposition that, despite the

jurisdictional restrictions imposed by § 1252(a)(2), courts can review BIA decisions

merely because they engage in de novo balancing of the equities. In fact, several

decisions in other circuits have explicitly held the opposite. See, e.g., Cruz-Camey v.

Gonzales, 

, 29 (1st Cir. 2007) (holding that no jurisdiction exists to review

“the manner in which the BIA balanced the various positive and negative factors which

typically inform the exercise of its discretion under § 1229b(a)”); Wallace v. Gonzales,

, 140–41 (2d Cir. 2006) (holding that no jurisdiction exists to review BIA’s

reversal of IJ’s discretionary determination and that “a review of the factual record by the

BIA does not convert its discretionary determination as to whether a petitioner warrants

an adjustment of status into improper factfinding”); Delgado-Reyuna v. Gonzales, 

, 599–600 (5th Cir. 2006) (holding that no jurisdiction exists to review a claim

that “the BIA improperly conducted de novo review, rather than reviewing the IJ’s

decision for clear error, when it reweighed the facts relevant to the grant of discretionary

relief.”). Johnson has not presented any reason for us to hold otherwise. He has not

demonstrated that the BIA’s weighing of the equities presents any question of law that

would allow us to review its decision under § 1252(a)(2)(D).

                                              5
       Johnson presents a purportedly separate argument that it was a violation of due

process for the BIA to engage in de novo balancing of the equities instead of remanding

the matter to the IJ. We have jurisdiction to review colorable due process claims because

§ 1252(a)(2)(D) explicitly allows judicial review of constitutional claims and questions of

law. Because relief under § 212(c) is purely discretionary, however, Johnson cannot

show that he has been deprived of a protected liberty or property interest. As we stated in

Hernandez v. Gonzales, “[a]liens who seek only discretionary relief from deportation

have no constitutional right to receive that relief.” 

, 346 (3d Cir. 2006).

Moreover, we have held that in asylum proceedings, due process entitles an alien to no

more than: 1) fact-finding based on a record produced before the decisionmaker and

disclosed to the alien, 2) the ability to make arguments on his or her behalf, and 3) the

right to an individualized determination of his or her interests. See Mudric v. Attorney

General, 

, 100 (3d Cir. 2006) (citing Abdulai v. Ashcroft, 

, 549

(3d Cir. 2001)). Johnson presents no serious argument that he has been deprived of any

of these things. He suggests that he did not receive a full hearing because the IJ never

completed its analysis after its determination regarding “unusual or outstanding equities”

and because the BIA never provided a “reasoned explanation as to why Mr. Johnson’s

convictions outweighed all of the equities.” He never explains why the BIA’s

explanation falls short of a “reasoned” one or, more importantly, how it fails to satisfy

any due process requirement. Thus, even assuming arguendo that Johnson had an interest

protected by due process, he has not presented a colorable due process claim that would

                                             6
provide us with jurisdiction under § 1252(a)(2)(D).

       In sum, 8 U.S.C. § 1252(a)(2)(B)(ii) deprives us of jurisdiction to entertain

Johnson’s petition, and Johnson has not shown that any exception applies. Accordingly,

we will grant the Attorney General’s motion to dismiss for lack of jurisdiction.




                                             7