Moncaleano v. Attorney General of the United States

Citation: 390 F. App'x 81Docket: No. 08-3669

Court: Court of Appeals for the Third Circuit; August 13, 2010; Federal Appellate Court

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Giovanny Gracia Moncaleano sought review of a Board of Immigration Appeals (BIA) order that overturned an Immigration Judge (IJ) decision granting his application for cancellation of removal under 8 U.S.C. § 1229b(a). The court granted Gracia’s petition, determining that the BIA improperly conducted a de novo review and engaged in unauthorized factfinding, violating 8 C.F.R. § 1003.1(d)(3).

Gracia, a Colombian native and lawful permanent resident since 1979, has a U.S. citizen mother and five lawful permanent resident sisters. He has four U.S. citizen children from three different mothers and has worked as an electrician since 1999. Throughout his time in the U.S., he accumulated several misdemeanor convictions, including simple assault, theft, and drug-related offenses. In 2007, the Department of Homeland Security (DHS) issued a Notice to Appear, initiating removal proceedings based on his criminal record.

During the proceedings, Gracia acknowledged his convictions. The IJ confirmed his eligibility for cancellation of removal, as none of his crimes were aggravated felonies. After an adjournment for legal representation, the IJ granted Gracia’s application, weighing the negative aspects of his criminal history against positive factors, including his relationships with his children and plans to resume work. Gracia testified about his intentions to rebuild his family ties and fulfill child support obligations.

Gracia, who left Colombia at a young age, presented affidavits from family members and his probation officer attesting to his commitment to his responsibilities, particularly as a father, and his efforts to reform after past poor decisions. The immigration judge (IJ) granted his application for cancellation of removal, weighing Gracia's lengthy U.S. residence, stable work history, genuine remorse, and his role as a supportive father against his misdemeanor convictions and history of bad judgment. The IJ emphasized the importance of maintaining his relationship with his children, which would be jeopardized by his removal.

However, the Government appealed the IJ's decision, leading the Board of Immigration Appeals (BIA) to vacate the IJ's ruling and order Gracia's removal to Colombia, which was executed shortly thereafter. The Government argued that the court lacked jurisdiction over Gracia's petition as he did not present constitutional claims or exhaust arguments before the BIA. Nevertheless, the court identified three legal questions raised by Gracia that fell within its jurisdiction: (1) whether the BIA conducted improper fact-finding; (2) whether it applied an incorrect legal standard; and (3) whether the IJ adequately assessed the nature of Gracia's convictions. Although the court could review these legal questions, it noted that it lacked jurisdiction over challenges to the BIA's discretion in balancing factors related to the cancellation of removal.

Jurisdiction is limited to claims where a petitioner has exhausted all available administrative remedies, as mandated by 8 U.S.C. § 1252(d)(1). A petitioner is considered to have exhausted remedies if all issues are raised before the Board of Immigration Appeals (BIA). The exhaustion policy is lenient; minimal efforts by the petitioner to notify the BIA of issues suffice for exhaustion. Gracia's first two legal questions stemmed from the BIA's opinion and could not be raised without a motion for reconsideration, which is an unresolved issue in the Circuit regarding whether it is a remedy 'as of right.' Gracia faced a procedural obstacle: he was removed 12 days after the BIA decision, rendering any potential motion for reconsideration withdrawn or prohibited post-removal. Thus, exhaustion was not an impediment for these questions.

Conversely, Gracia's third legal question regarding the IJ and BIA's analysis of his convictions had not been exhausted, as he failed to challenge his drug conviction under the relevant statute before either the IJ or the BIA, leading to a lack of jurisdiction to review this claim. 

Before 2002, the BIA reviewed IJ decisions de novo, but procedural reforms limited this review, allowing de novo consideration only for legal questions and discretion. The BIA cannot conduct fact-finding or review IJ factual determinations unless they are clearly erroneous. In this case, the BIA overstepped its authority by engaging in its own fact-finding contrary to the IJ's findings, such as mischaracterizing the financial support status of Gracia’s children without explaining why the IJ's conclusions were clearly erroneous.

The BIA's decision was criticized for disregarding the IJ's findings regarding Gracia's role in his children's lives, which was a significant factor in favor of cancellation of removal. The IJ emphasized that Gracia's removal would sever his meaningful relationship with his children and hinder his ability to provide financial support. In contrast, the BIA claimed it was unclear what role Gracia would have post-removal and introduced its own factfinding regarding his mother's care, which the IJ had not addressed. The BIA overstepped its authority by challenging both the IJ's factual premises and weighing analysis instead of merely identifying clear errors. The case is remanded to the BIA for further proceedings, with an emphasis on considering all relevant factors, including Gracia’s long-term residence, employment history, and potential family hardship upon deportation. Additionally, the BIA incorrectly stated that Gracia did not submit tax returns, which he did provide. The remand allows for reevaluation of Gracia's circumstances in light of established precedents.