Sorcia v. Holder

• Decision Date: 21 July 2011
• Docket Number: No. 10–1431.,10–1431.
• Citation: 643 F.3d 117
• Parties: Reynaldo SORCIA, Petitioner,v.Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

643 F.3d 117

Reynaldo SORCIA, Petitioner,

v.Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 10–1431.

United States Court of Appeals, Fourth Circuit.

Argued: March 23, 2011.Decided: July 1, 2011.As Amended July 21, 2011.

ARGUED: H. Glenn Fogle, Jr., The Fogle Law Firm, LLC, Atlanta, Georgia, for Petitioner. Michael Christopher Heyse, United States Department of Justice, Washington, D.C., for Respondent. ON BRIEF: Tony West, Assistant Attorney General, Civil Division, Mary Jane Candaux, Assistant Director, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent.Before MOTZ and WYNN, Circuit Judges, and RONALD LEE GILMAN, Senior Circuit Judge of the United States Court of Appeals for the Sixth Circuit, sitting by designation.

Dismissed by published opinion. Judge WYNN wrote the opinion, in which Judge MOTZ and Senior Judge GILMAN joined.

OPINION

WYNN, Circuit Judge:

It is axiomatic that a court lacking subject matter jurisdiction over an appeal must dismiss the case. Petitioner Reynaldo Sorcia (“Sorcia”) asks this Court to review the decision of the Board of Immigration Appeals (“BIA”) to deny (1) his petition for cancellation of removal and (2) his motion to reopen removal proceedings so that he could pursue cancellation of removal after an adjustment of status for which he had an application pending. However, because Sorcia raises no constitutional claims or questions of law, we lack jurisdiction to review the discretionary denial of cancellation of removal. 8 U.S.C. § 1252(a)(2)(B). Further, because the BIA based its denial of Sorcia's motion to reopen on a determination that Sorcia did not merit the discretionary relief of cancellation of removal, we also lack jurisdiction to review the denial of the motion. See Obioha v. Gonzales, 431 F.3d 400, 406 (4th Cir.2005). Accordingly, the appeal is dismissed.

I.

Sorcia is a citizen of Mexico. He became a temporary resident of the United States on November 16, 1988 and a lawful permanent resident on December 1, 1990. On February 5, 2007, he was placed in removal proceedings following the filing of a Notice to Appear with the Immigration Court.¹ He was charged with removability pursuant to 8 U.S.C. 1227(a)(2)(E)(i), which states that “[a]ny alien who at any time after admission is convicted of a crime of domestic violence ... is deportable.”

Sorcia appeared before an Immigration Judge (“IJ”) in Atlanta, Georgia, and admitted that he had been convicted of three offenses: (1) misdemeanor domestic violence on February 10, 1997; (2) misdemeanor assault and battery on April 14, 1997; and (3) misdemeanor domestic violence on November 3, 2003. In light of the domestic violence convictions, Sorcia conceded his removability, and the IJ found by clear and convincing evidence that Sorcia was removable.

Thereafter, Sorcia petitioned the IJ for cancellation of removal. Because Sorcia had not been convicted of an aggravated felony and had resided in the United States for more than 16 years after becoming a lawful permanent resident, he was statutorily eligible for cancellation of removal. Under 8 U.S.C. § 1229b(a),

[t]he Attorney General may cancel removal in the case of an alien who is inadmissible or deportable from the United States if the alien—

(1) has been an alien lawfully admitted for permanent residence for not less than 5 years,

(2) has resided in the United States continuously for 7 years after having been admitted in any status, and

(3) has not been convicted of any aggravated felony.

Nonetheless, even where statutory eligibility is established, an IJ retains discretion to grant or deny an application for cancellation of removal, and the applicant must establish that he warrants the relief sought. In re C–V–T, 22 I. & N. Dec. 7 (BIA 1998).

“[T]here is no inflexible standard for determining who should be granted discretionary relief, and each case must be judged on its own merits.” Id. at 11 (citing In re L-, 3 I. & N. Dec. 767, 770 (BIA 1949)). In applying his discretion, the IJ must “balance the adverse factors evidencing an alien's undesirability as a permanent resident with the social and humane considerations presented in his behalf to determine whether the granting of section 212(c) relief appears in the best interest of this country.” In re Marin, 16 I. & N. Dec. 581, 584 (BIA 1978), abrogated on other grounds by In re Edwards, 20 I. & N. Dec. 191 (BIA 1990); see also In re C–V–T, 22 I. & N. Dec. at 11 (finding the Marin balancing test appropriate when considering requests for cancellation of removal under 8 U.S.C. § 1229b(a)).²

The IJ noted that Sorcia's twenty-year residency in the United States constituted a “significant positive equity” weighing in favor of cancellation of removal. The IJ also found that Sorcia's family ties to citizens of the United States and/or lawful permanent residents constituted a “positive factor.” Moreover, the IJ found that Sorcia's history of steady employment weighed in his favor.

However, Sorcia's criminal history weighed against him. The court observed that Sorcia's past criminal actions all involved violence and had twice involved the use of firearms. Further, Sorcia had attempted to minimize his responsibility for his offenses. Also, given that Sorcia's convictions occurred over a period of years, the IJ opined that they demonstrated a “propensity to resort to violence.” The court additionally noted that Sorcia had failed to pursue treatment for anger management to address this “propensity.”

The IJ also considered “collaterally” the fact that Sorcia had been charged with committing a lewd act on a minor, despite the fact that this charge had not been prosecuted. The IJ further considered as “an additional significant negative factor” that Sorcia engaged in tax fraud. The court concluded that:

[A]n individual who was given the grace of this nation by making him a lawful permanent resident and [has responded] by repeatedly engaging in violent activities that endanger both his family and other individuals in this nation and has filed demonstrably fraudulent tax returns is not deserving of a favorable exercise of the Court's discretion....

The IJ accordingly denied Sorcia's request for cancellation of removal by order of February 4, 2009. Sorcia appealed to the BIA.

The BIA issued a decision dismissing Sorcia's appeal. Like the IJ, the BIA opined that Sorcia's length of residence in the United States, family ties in this country, and steady employment history all weighed in his favor. After considering the equitable factors weighing in Sorcia's favor, the BIA opined that Sorcia's “criminal history and lack of rehabilitation outweigh the favorable factors in this case.” The BIA concluded that Sorcia's criminal history indicated an increased likelihood that he would “have future encounters with the criminal justice system and an adverse impact on the safety of his family and community.” Notably, the BIA expressly disavowed reliance on either the charge of committing a lewd act on a minor or Sorcia's questionable tax history. Reasoning that it would not be in the best interests of the United States to grant Sorcia cancellation of removal, the BIA dismissed his appeal on March 18, 2010. In the same decision, the BIA denied Sorcia's motion to reopen his removal proceedings.

On April 12, 2010, Sorcia petitioned this Court for review of the BIA's decision. The government filed a motion to dismiss, or in the alternative, transfer the petition. The government sought dismissal on the grounds that venue was improper in this Circuit under 8 U.S.C. § 1252(b). Alternatively, the government requested this Court to transfer the case to the Eleventh Circuit pursuant to 28 U.S.C. § 1631. Before turning to the merits of Sorcia's case, we address the government's motion.

II.

The government's motion to dismiss relied on 8 U.S.C. § 1252(b)(2), which states that a “petition for review [of an order of removal] shall be filed with the court of appeals for the judicial circuit in which the immigration judge completed the proceedings.” For reasons unique to the procedural history of this case, the parties dispute where the IJ completed the proceedings. Sorcia maintains that the proceedings were completed in Charlotte, North Carolina. The government argues that the proceedings were completed in Atlanta, Georgia.

Even assuming that Sorcia chose incorrectly when he appealed the BIA's decision to this Court, that error would not deprive this Court of subject matter jurisdiction. While we have not previously addressed the issue, courts in other circuits have unanimously held that § 1252(b)(2) is a nonjurisdictional venue provision. See Avila v. U.S. Atty. Gen., 560 F.3d 1281, 1284 (11th Cir.2009); Moreno–Bravo v. Gonzales, 463 F.3d 253, 262 (2d Cir.2006); Georcely v. Ashcroft, 375 F.3d 45, 49 (1st Cir.2004); Nwaokolo v. I.N.S., 314 F.3d 303, 306 n. 2 (7th Cir.2002) (per curiam); cf. Jama v. Gonzales, 431 F.3d 230, 233 (5th Cir.2005) (per curiam) (refusing to raise the nonjurisdictional venue issue sua sponte); Bonhometre v. Gonzales, 414 F.3d 442, 446 n. 5 (3d Cir.2005).³ This conclusion is not surprising, insofar as § 1252(b)(2) is titled “Venue and forms.” Also, the statute says nothing about “jurisdiction.” See Moreno–Bravo, 463 F.3d at 259 (“In view of the extraordinary attention Congress directed toward federal jurisdiction over petitions for review in § 1252, ... it is hard for us to believe that the legislature would then neglect to express a similarly clear intent—or any intent at all—to circumscribe jurisdiction....”). Without hesitation, we join the six circuits concluding that § 1252(b)(2) is a nonjurisdictional venue provision. Accordingly, we decline the government's motion to dismiss this appeal based solely on Sorcia's failure to comply with § 1252(b)(2).⁴

In the alternative, the government requests that this case be transferred to the Eleventh Circuit. The government...