544 F. App'x 55
3d Cir.2013Background
- Petitioner Marco Chacon Tello, a Peruvian national and lawful permanent resident since 1992, pleaded guilty in 2005 in New Jersey to manufacturing/distributing marijuana; DHS charged removability under 8 U.S.C. § 1227(a)(2)(B).
- Chacon conceded removability and applied for cancellation of removal and other relief; IJ denied all relief in Dec. 2012, finding him statutorily ineligible (failure to meet 7-year continuous residence) and denying relief in the exercise of discretion based on criminal history and limited rehabilitation.
- The BIA declined to decide eligibility and affirmed the IJ’s discretionary denial, concluding that even if eligible, Chacon did not merit relief.
- Chacon petitioned for review; the government argued jurisdiction is barred by 8 U.S.C. § 1252(a)(2)(C) because his conviction is an enumerated offense. The court agreed the bar facially applied but retained jurisdiction over constitutional and legal questions.
- The Third Circuit dismissed claims challenging the discretionary balancing (jurisdictionally barred) but retained and reviewed two legal claims: whether the agency treated lack of rehabilitation as dispositive and whether it required a heightened showing of "unusual or outstanding equities." The court rejected both challenges and denied in part/dismissed in part the petition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction under §1252(a)(2)(C) to review discretionary denial | Chacon sought review of IJ/BIA discretionary denial and eligibility findings | Government: §1252(a)(2)(C) bars judicial review of orders of removal based on enumerated convictions; only constitutional/questions of law review remains | Court: Dismissed challenges to discrete discretionary factual balancing; retained jurisdiction only for legal/constitutional questions |
| Eligibility — continuous-residence requirement | Chacon argued IJ erred in finding he failed to satisfy 7‑year continuous residence for cancellation | Government: BIA did not adopt IJ’s eligibility ruling; threshold issue not before the court | Court: Issue not properly before the court because BIA declined to rule on eligibility |
| Alleged legal error — treating lack of rehabilitation as dispositive | Chacon argued agency applied Edwards incorrectly and treated rehabilitation failure as an absolute bar | Government/Agency: Agency balanced multiple favorable and adverse factors; did not treat rehabilitation as dispositive | Court: Rejected Chacon’s claim; no legal error — agency weighed factors and did not impose an absolute prerequisite |
| Alleged legal error — imposing "unusual or outstanding equities" threshold | Chacon contended agency required heightened showing due to criminal history (contrary to Sotelo‑Sotelo) | Agency: IJ expressly stated no threshold test required and applied correct balancing approach | Court: Denied claim — IJ/BIA did not require a threshold of unusual/outstanding equities and applied proper legal standard |
Key Cases Cited
- Papageorgiou v. Gonzales, 413 F.3d 356 (3d Cir. 2005) (courts retain jurisdiction over constitutional and legal questions despite §1252(a)(2)(C))
- Jarbough v. Att’y Gen., 483 F.3d 184 (3d Cir. 2007) (BIA’s failure to adopt IJ’s particular ruling can make that issue unreviewable)
- Cospito v. Att’y Gen., 539 F.3d 166 (3d Cir. 2008) (challenges that are merely quarrels over discretionary factual findings are not reviewable)
- Patel v. Att’y Gen., 599 F.3d 295 (3d Cir. 2010) (review of BIA decision while considering IJ reasoning when adopted or deferred to)
- Pareja v. Att’y Gen., 615 F.3d 180 (3d Cir. 2010) (jurisdiction exists to review claims that the agency applied an erroneous legal standard)
- Aburto‑Rocha v. Mukasey, 535 F.3d 500 (6th Cir. 2008) (agency applying incorrect legal standard may present a reviewable legal question)