Noble v. Keisler, No. 05-3915 (2d Cir. 2007)
Annotate this CaseThis opinion or order relates to an opinion or order originally issued on October 2, 2007.
Download PDF
05-3915-ag Noble v. Keisler 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 August Term, 2006 4 5 (Argued: December 19, 2006 Decided: October 2, 2007 Errata filed: October 26, 2007) 6 7 8 ------------------------------------- 9 BRYAN NOBLE, 10 Petitioner, 11 - v - 12 PETER D. KEISLER, 13 Respondent.* 14 ------------------------------------- 15 Docket No. 05-3915-ag Before: 16 POOLER, SACK, and WESLEY, Circuit Judges. Petition for review of a decision of the Board of 17 Immigration Appeals vacating an immigration judge's decision 18 granting the petitioner's application for a waiver of 19 inadmissibility under section 212(c) (now repealed) of the 20 Immigration and Nationality Act. 21 Petition dismissed. 22 23 24 25 RUCHI THAKER, Bretz & Coven, LLP (Matthew L. Guadagno, Kerry W. Bretz, and Jules E. Coven, on the brief), New York, NY for Petitioner. * Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Acting Attorney General Peter D. Keisler is automatically substituted for former Attorney General Alberto R. Gonzales as the respondent in this case. 1 2 3 4 5 6 MELISSA A. SWAUGER, Assistant United States Attorney in the Middle District of Pennsylvania (Thomas A. Marino, United States Attorney, on the brief), Harrisburg, PA for Respondent. SACK, Circuit Judge: 7 Bryan Noble, a citizen of Jamaica, petitions for review 8 of a decision by the Board of Immigration Appeals ("BIA") denying 9 his application for a waiver of inadmissibility under section 10 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c) 11 ("INA").1 12 2005) ("BIA Opinion"). 13 and vacated the decision of Immigration Judge ("IJ") Margaret 14 McManus granting Noble's application. 15 41 651 242 (Immig. Ct. N.Y. City Jan. 15, 2004) ("IJ Decision"). 16 In re Bryan Noble, No. A 41 651 242 (B.I.A. June 30, The BIA sustained the government's appeal In re Bryan Noble, No. A Noble now petitions for review, arguing that the BIA 17 applied an incorrect legal standard, as established by agency 18 regulations, to its review of the IJ's determination that Noble 19 had been rehabilitated subsequent to his extensive history of 20 criminal behavior. 21 reject a finding of fact by the IJ that Noble was rehabilitated, 22 but instead evaluated the nature and extent of his rehabilitation 23 as one equity among many in exercising its discretion, we 24 conclude that the petitioner is, in substance, asking us to Because we conclude that the BIA did not 1 Although section 212(c) has been repealed, it nevertheless applies to Noble because he pleaded guilty to his crimes prior to the repeal of this section. Khan v. Gonzales, 495 F.3d 31, 33 n.1 (2d Cir. 2007) (citing INS v. St. Cyr, 533 U.S. 289, 326 (2001)). -2- 1 review an exercise of discretion by the BIA. We do not have 2 jurisdiction to do so, and we therefore dismiss the petition. BACKGROUND 3 4 Noble entered the United States on a visitor's visa in 5 1982, at the age of twelve. He became a lawful permanent 6 resident on March 10, 1988. Soon thereafter, he was arrested for 7 the first time. 8 occasions. 9 criminal proceedings in New York state courts. 10 He was subsequently arrested on six other Most of his arrests were drug-related; all led to The petitioner's legal troubles prompted the initiation 11 of his immigration proceedings and two delays thereof. Nearly 12 fifteen years after they began, Noble now petitions this Court to 13 review the BIA's denial of discretionary relief from removal. 14 Noble's Criminal Convictions and Sentences 15 Noble's first arrest occurred some seven months after 16 he obtained lawful permanent resident status. 17 in 1989 to criminal possession of a controlled substance. 18 sentenced as a youthful offender to five years' probation. 19 He pleaded guilty He was On April 26, 1990, shortly after his probationary 20 sentence was imposed, Noble was again arrested, this time for 21 criminal impersonation. 22 for which he was sentenced to pay a fine. 23 He pleaded guilty to disorderly conduct Seven months later, Noble was arrested following a 24 police drug-raid. At the time of his arrest, he had twenty-one 25 bags of cocaine base ("crack"), individually packaged for sale, 26 at his feet. On October 30, 1991, before the possession-of-crack -3- 1 prosecution had been resolved, Noble was arrested in the course 2 of another police drug raid for possession of crack with the 3 intent to sell. 4 his possession a loaded semi-automatic pistol with a defaced 5 serial number. 6 pending, Noble was arrested yet again for possession of crack. 7 At the time of this arrest, Noble also had in On February 25, 1992, while these two cases were On November 4, 1992, Noble pleaded guilty to the 8 criminal charges arising from his third and fourth arrests and 9 was sentenced, for each crime, to three-and-one-half to ten-and- 10 one-half years' imprisonment, to run concurrently. 11 Noble served twenty-two months' imprisonment for these offenses. 12 Noble's Removal Proceedings 13 On August 13, 1993, the INS issued an order to show 14 cause to Noble based on his previous convictions for drug- 15 trafficking crimes.2 16 removability under section 241(a)(2)(B)(i) of the INA, 8 U.S.C. 17 § 1251(a)(2)(A)(i) (1994) (current version at 8 U.S.C. § 1227), 18 as an alien convicted of a controlled substance violation, and 19 section 241(a)(2)(A)(iii) of the INA, 8 U.S.C. 20 § 1251(a)(2)(A)(iii) (1994) (current version at 8 U.S.C. § 1227), 2 In it, the INS charged Noble with On March 1, 2003, the Immigration and Naturalization Service was reconstituted as the Bureau of Immigration and Customs Enforcement ("ICE") and the Bureau of U.S. Citizenship and Immigration Services, both within the Department of Homeland Security. See Monter v. Gonzales, 430 F.3d 546, 548 n.1 (2d Cir. 2005). Because Noble's removal proceedings began before this date, we refer to it as the INS in this opinion where appropriate. -4- 1 as an alien convicted of an aggravated felony. 2 disputed his deportability or removability on these bases. 3 Noble has never On January 10, 1995, Noble filed an application for 4 relief under section 212(c). 5 hearing was pending, he was arrested a sixth time, this time for 6 selling crack. 7 closed pending a resolution of charges in connection with that 8 arrest. 9 controlled substance and was sentenced to a conditional 10 11 While Noble's section 212(c) His deportation proceedings were administratively He later pleaded guilty to criminal possession of a discharge. Noble's removal hearings were reopened but suspended 12 again after he was arrested a seventh time on February 21, 2000. 13 Noble pleaded guilty to charges of disorderly conduct arising out 14 of a shoplifting incident, was sentenced to a conditional 15 discharge, and was asked, and agreed, to participate in a drug 16 recovery program. 17 The IJ's Decision 18 On March 28, 2002, almost a decade after deportation 19 proceedings against him had begun, Noble received a hearing 20 before an IJ to address his section 212(c) application. 21 his wife both testified. 22 He and Noble recounted his extensive criminal record and 23 admitted to having committed additional drug offenses for which 24 he had not been arrested and, therefore, of which the INS had not 25 been aware. 26 and asserted that he had since turned his life around. He expressed his regret about that phase of his life -5- 1 Noble's wife testified to Noble's importance to their 2 family as a father, stepfather, caretaker, and breadwinner. 3 said that, were Noble removed from the United States, the family 4 would no longer be able to afford to pay the mortgage on their 5 home and would therefore be forced to leave it. 6 She Noble also submitted several documents in support of 7 his relief application relating to his marriage and extensive 8 family ties in the United States, his employment record and 9 financial stability, his post-parole record, and his positive 10 11 influence on his children. The IJ issued a written decision on January 15, 2004. 12 After balancing the equities in accordance with Matter of Marin, 13 16 I. & N. Dec. 581 (BIA 1978), she granted Noble a waiver of 14 removal under section 212(c). 15 Noble's testimony to be credible -- his "level of honesty 16 convince[d] [her] that he [had] been forthright in all of his 17 testimony." 18 outstanding equities" that offset Noble's extensive criminal 19 history, including his family connections to the United States, 20 his positive family relationships, the financial and emotional 21 support he provided to his family, and his steady employment. 22 Id. at 6-9. 23 that Noble had "expressed profound remorse for his criminal 24 convictions and regrets his criminal involvement." 25 The IJ further found that Noble had "demonstrated a willingness 26 to continue his progress toward a drug-free and crime-free Id. at 2. See IJ Decision at 6-9. She found The IJ identified several "unusual and Addressing the issue of rehabilitation, the IJ noted -6- Id. at 7. 1 lifestyle." Id. at 8. The IJ said: 2 for[e]going analysis and [Noble's] remorse for his past actions, 3 the Court concludes that [Noble] has finally demonstrated good 4 efforts at rehabilitation." 5 positive equities outweighed the negative ones and granted 6 Noble's request for a waiver of inadmissibility pursuant to 7 section 212(c). See id. at 9. Id. "In light of the The IJ concluded that Noble's 8 The BIA's Opinion 9 The government appealed the IJ's decision to the BIA. 10 According to the BIA, the "sole question on appeal [was] whether 11 the respondent merit[ed] section 212(c) relief in the exercise of 12 discretion, a matter [the] Board reviews de novo." 13 at 1. 14 of the criminal charges against Noble; the number of them 15 (including those which he admitted committing but for which he 16 had not been convicted); that "the circumstances under which some 17 of these crimes were committed suggest the possibility that he 18 was willing and able to advance his criminal enterprise by means 19 of violence"; and the fact that the criminal behavior continued 20 after his deportation proceedings began. 21 BIA Opinion The BIA considered a variety of factors: the seriousness Id. at 2. In light of these "significant negative factors," the 22 BIA opined, Noble would be entitled to relief only if he "[came] 23 forward with evidence of unusual or outstanding equities, 24 including proof of genuine rehabilitation." 25 acknowledged that some of Noble's positive factors did rise to 26 the level of "unusual or outstanding equities." -7- Id. The BIA first Id. at 3. The 1 BIA further noted that Noble had "expressed sincere remorse for 2 his past conduct and . . . testified honestly about that conduct 3 in open court," thereby adhering to the IJ's credibility 4 determination. 5 6 Id. On the issue of rehabilitation, however, the BIA observed: 7 8 9 10 11 12 13 14 15 [R]emorsefulness is not the same as rehabilitation. The fact that the respondent has continued to commit crimes after the commencement of these proceedings and after receiving explicit warnings from the [IJ] about the potential consequences of such conduct frankly leaves us with very serious doubts as to the authenticity of [Noble's] rehabilitation. 16 Id. 17 including "unusual or outstanding" equities in his favor, 18 "against the adverse factor of his very serious criminal history 19 and [the agency's] reservations as to his rehabilitation," the 20 BIA concluded that it was "constrained to find that a favorable 21 exercise of discretion would not be in the best interests of the 22 United States." 23 in relevant part and denied the section 212(c) waiver. 24 After "balancing the various factors in [Noble's] case," Id. The BIA therefore vacated the IJ's decision Noble petitions for review. DISCUSSION 25 26 I. Jurisdiction 27 At least in the absence of constitutional or legal 28 issues, we do not have jurisdiction to review final orders of 29 removal against aliens deemed by the BIA to be removable because 30 they were convicted of a specified criminal offense, including, -8- 1 inter alia, an aggravated felony or controlled substance 2 violation. 3 where alien is removed after violating 8 U.S.C. 4 § 1227(a)(2)(A)(iii) (aggravated felony) or § 1227(a)(2)(B) 5 (controlled substance offense)). 6 review purely discretionary decisions. 7 § 1252(a)(2)(B)(ii). 8 however, restored our jurisdiction over "constitutional claims or 9 questions of law." 10 See 8 U.S.C. § 1252(a)(2)(C) (precluding jurisdiction We also lack jurisdiction to See 8 U.S.C. Section 106 of the REAL ID Act of 2005, 18 U.S.C. § 1252(a)(2)(D); see Xiao Ji Chen v. Dep't of Justice, 471 F.3d 315, 324 (2d Cir. 2006). 11 II. The BIA's Review of the IJ's Decision 12 The government seeks dismissal of the petition because, 13 it contends, we do not have jurisdiction to review the BIA's 14 discretionary decision denying a section 212(c) waiver of 15 inadmissibility. 16 jurisdiction to review the BIA's ultimate conclusion to deny his 17 application, nor could he successfully do so. 18 Avendano-Espejo v. Dep't of Homeland Security, 448 F.3d 503, 504 19 (2d Cir. 2006) (per curiam). 20 erred on the narrow ground that it improperly applied de novo 21 review to the IJ's rehabilitation determination, contrary to 22 agency regulations that require clear error review for findings 23 of fact. 24 The petitioner does not assert that we have See Instead, he contends that the BIA See 8 C.F.R. § 1003.1(d)(3)(i). As a Court of Appeals, we operate under the familiar 25 rule that when a district court makes a finding of fact or 26 exercises discretion conferred upon it, we must routinely defer -9- 1 to the district court in these matters on appeal. We will 2 overturn a district court's finding of fact only if it is 3 "clearly erroneous" and its exercise of discretion only if the 4 discretion has been "abused." 5 Agudelo, 414 F.3d 345, 348 (2d Cir. 2005) (findings of fact); 6 United States v. Rigas, 490 F.3d 208, 238 (2d Cir. 2007) 7 (exercise of discretion). 8 findings of fact on appeal from a ruling of an IJ is similar to 9 ours when reviewing factual findings of a district judge, the See, e.g., United States v. While the scope of the BIA's review of 10 BIA's standard of review of discretionary decisions by an IJ is 11 quite different from ours: 12 13 14 15 16 (i) . . . Facts determined by the immigration judge including findings as to credibility of testimony, shall be reviewed only to determine whether the findings of the immigration judge are clearly erroneous. 17 18 19 20 (ii) The Board may review questions of law, discretion, and judgment and all other issues in appeals from decisions of immigration judges de novo. 21 8 C.F.R. §§ 1003.1(d)(3)(i)&(ii) (emphasis added). The 22 discretionary portion of an IJ's decision is thus reviewed by the 23 BIA as though it were deciding the issue in the first instance. 24 Noble argues that the BIA erred as a matter of law by 25 applying de novo review under subsection (ii) to overturn the 26 IJ's finding of fact that Noble had been rehabilitated. 27 it was a finding of fact, Noble contends, the BIA could do so 28 properly only under subsection (i) and only if it concluded that 29 the finding was clearly erroneous. 30 a constitutional claim of a violation of his due process rights. -10- Because Noble frames his argument as 1 Pet. Br. at 15. To determine whether we have jurisdiction, 2 however, we must "study the arguments asserted . . . [and] 3 determine, regardless of the rhetoric employed in the petition, 4 whether it merely quarrels over the correctness of the factual 5 findings or justification for the discretionary choices" made by 6 the BIA. 7 of the BIA's proper standard of review does not raise a 8 constitutional issue, Noble's argument is best interpreted to 9 assert that we have jurisdiction because he raises a question of 10 law -- the application by the BIA of a legally erroneous standard 11 of review. 12 ("[E]ven when the petitioner fails to invoke the rhetoric of 'a 13 constitutional claim' or 'question of law,' our analysis of a 14 petitioner's arguments may reveal that they do in fact raise 15 reviewable issues."). 16 jurisdiction to review such claims, see Barco-Sandoval v. 17 Gonzales, 496 F.3d 132, 135 n.5 (2d Cir. 2007); Khan, 495 F.3d at 18 34, here, no matter how it is framed, Noble's argument 19 mischaracterizes the nature of the agency's decision. 20 conclusion regarding Noble's section 212(c) application was 21 discretionary and, therefore, beyond our jurisdiction. Xiao Ji Chen, 471 F.3d at 329. Although the question See Khan v. Gonzales, 495 F.3d 31, 35 (2d Cir. 2007) Although in some circumstances we do have The BIA's 22 The IJ, in her decision, referred to "evidence of 23 rehabilitation," IJ Decision at 9, and commented on Noble's 24 "willingness to continue his progress toward a drug-free and 25 crime-free lifestyle." Id. at 8. 26 ha[d] finally demonstrated good efforts at rehabilitation." The IJ concluded that [Noble] -11- Id. 1 The role of the BIA was to consider Noble's 2 rehabilitation, which the IJ had examined, and weigh it with and 3 against other relevant factors3 in order to render an informed 4 discretionary decision as to whether Noble should be permitted to 5 stay. 6 ("In evaluating a section 212(c) application, an immigration 7 judge must balance the adverse factors evidencing an alien's 8 undesirability as a permanent resident with the social and humane 9 considerations presented in his behalf.") (internal quotation See Restrepo v. McElroy, 369 F.3d 627, 634 (2d Cir. 2004) 10 marks and citation omitted). The BIA did just that. 11 concluded, "[W]hen we weigh the[] [favorable] equities against 12 the adverse factor of his very serious criminal history and our 13 reservations as to his rehabilitation we are constrained to find 14 that a favorable exercise of discretion would not be in the best 15 interests of the United States." BIA Opinion at 3. It To be sure, 3 Favorable considerations have been found to include such factors as family ties within the United States, residence of long duration in this country (particularly when the inception of residence occurred while the respondent was of young age), evidence of hardship to the respondent and family if deportation occurs, service in this country's Armed Forces, a history of employment, the existence of property or business ties, evidence of value and service to the community, proof of a genuine rehabilitation if a criminal record exists, and other evidence attesting to a respondent's good character (e.g., affidavits from family, friends, and responsible community representatives). Matter of Marin, 16 I. & N. Dec. 581, 584-585 (BIA 1978). -12- 1 the BIA also expressed its view that "[t]he fact that the 2 respondent has continued to commit crimes after the commencement 3 of these proceedings and after receiving explicit warnings from 4 the Immigration Judge about the potential consequences of such 5 conduct frankly leaves us with very serious doubts as to the 6 authenticity of the respondent's rehabilitation." 7 BIA made this observation while addressing "the sole question on 8 appeal" -- "whether [Noble] merits section 212(c) relief in the 9 exercise of discretion . . . ." Id. at 1. Id. But the It was thus 10 exercising its discretion by balancing the equities, including 11 rehabilitation, which, at least in this case, we do not have the 12 power to review. 13 In Wallace v. Gonzales, 463 F.3d 135 (2d Cir. 2006) 14 (per curiam), we addressed an argument similar to that which 15 Noble makes here. 16 petition under 8 U.S.C. § 1255, which allows the status of aliens 17 meeting certain criteria to "be adjusted by the Attorney General, 18 in his discretion and under such regulations as he may prescribe, 19 to that of an alien lawfully admitted for permanent residence." 20 Id. § 1255(a). 21 the IJ's decision that the waiver should be granted. 22 463 F.3d at 137. 23 finding adequate evidence of rehabilitation which would outweigh 24 the negative criminal history," id., because "although 'the 25 evidence does suggest that [Wallace] has attempted to 26 rehabilitate himself while incarcerated, we cannot find that this There, the IJ had granted the applicant's After balancing the equities, the BIA overturned Wallace, The Board concluded that the IJ "erred in -13- 1 outweighs the seriousness of his conviction for robbery and other 2 indications of criminal activity.'" Id. at 137-38 (quoting the 3 BIA's opinion in Wallace). 4 BIA exceeded its authority under federal regulations when it 5 rejected the IJ's finding that Wallace had demonstrated 6 rehabilitation." 7 Wallace argued on appeal "that the Id. at 138. We declined to consider Wallace's "argu[ment] that the 8 BIA violated 8 C.F.R. § 1003.1(d)(3)[(i)] when it reversed the 9 IJ's conclusion that Wallace merited an adjustment of status 10 because the factual findings of an IJ may be reversed only when 11 the Board deems them 'clearly erroneous.'" 12 did not reject any factual determination of the IJ with respect 13 to Wallace's 'rehabilitation.'" 14 concluded, the BIA had merely "recounted the IJ's findings and 15 concluded that the IJ incorrectly exercised his discretion in 16 granting Wallace an adjustment of status." 17 noted that "[a]lthough any reversal by the BIA of an IJ's 18 discretionary determination must involve consideration of the 19 underlying facts, a review of the factual record by the BIA does 20 not convert its discretionary determination as to whether a 21 petitioner warrants an adjustment of status into improper 22 factfinding." 23 Id. at 141. Id. at 140. "The BIA Instead, we Id. In doing so, we Id. We do not discount the possibility, of course, that in 24 another case, the BIA's declining properly to defer to factual 25 findings by the IJ regarding rehabilitation as required by 26 section 1003.1(d)(3)(i) will amount to an error of law. -14- But 1 here, we think, as in Wallace, the BIA was engaging in a 2 recalculation of the equities in declining to grant a 3 discretionary waiver of removal despite the IJ's conclusion to 4 the contrary. 5 discretion, it noted the nature and extent of Noble's 6 rehabilitation and recorded its view that it had "reservations," 7 i.e., "very serious doubts" about it. 8 would have made our review easier had the BIA said that it had 9 "reservations as to the extent of his rehabilitation" rather than In the course of explaining its exercise of that BIA Decision at 3. It 10 "reservations as to his rehabilitation," id., and to have 11 observed, "frankly," that it was left "with very serious doubts 12 as to the degree of [Noble's] rehabilitation" rather than as to 13 its "authenticity." 14 opinion, however, it is clear that these comments were part of 15 the process by which the BIA made a judgment as to whether, in 16 light of Noble's rehabilitation, among other things, the Attorney 17 General's discretion ought to be exercised in his favor. 18 Read in the context of the rest of the BIA's In its analysis, the BIA agreed with the IJ that Noble 19 had demonstrated unusual or outstanding equities, and further 20 adhered to the IJ's credibility determination, particularly as it 21 pertained to Noble's expression of remorse. 22 the BIA did not think that Noble's positive equities, in 23 conjunction with any "evidence of rehabilitation," IJ Decision at 24 9, sufficiently outweighed the seriousness of his criminal 25 history to warrant the exercise of its favorable discretion. 26 have no authority to review that discretionary determination. -15- But unlike the IJ, We 1 2 CONCLUSION For the foregoing reasons, the petition is dismissed. -16-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
