JUAN PABLO PEREZ-GILL, AKA Pedro Gerena-Latimer, Pedro Latimore, Pedro Durant… v. ATTORNEY GENERAL OF THE UNITED STATES On

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-1854
JUAN PABLO PEREZ-GILL, AKA Pedro Gerena-Latimer,
Pedro Latimore, Pedro Durant Latimore, Pedro Latimer Gerena, Pedro Latimer
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A45-876-077)
Immigration Judge: Honorable Walter A. Durling
Submitted Pursuant to Third Circuit LAR 34.1(a)
August 26, 2009
Before: AMBRO, FISHER and JORDAN, Circuit Judges
(Opinion Filed September 4, 2009)
OPINION
PER CURIAM
Juan Pablo Perez-Gill petitions for review of the Board of Immigration Appeals’
(“BIA”) final order of removal. For the following reasons, we will dismiss the petition in

-- 1 of 5 --

1Under this provision, the Attorney General may, in his discretion, cancel the removal
of an alien who (1) has been lawfully admitted for permanent residence for not less than
five years, (2) has continuously resided in the United States in any status for seven years,
and (3) has not been convicted of an aggravated felony. If those requirements are met
(and there is no dispute that they are in this case), then the IJ must review the record as a
(continued...)
2
part and deny the remainder.
I.
Perez-Gill, a native and citizen of the Dominican Republic, first entered the United
States in 1997 as a lawful permanent resident. He lived here with his mother, also a
lawful permanent resident, and some cousins. His father, wife, and son live in the
Dominican Republic. After returning to the Dominican Republic to visit his family, he
sought to reenter the United States on February 20, 2007. When he did, fingerprint
screening revealed that he had used an alias in the United States and had been convicted
of at least three crimes. Perez-Gill at first disclaimed the alias and criminal history, but
eventually admitted to both. The Government instituted removal proceedings charging
Perez-Gill as removable for seeking admission to the United States by fraud or willful
misrepresentation, see 8 U.S.C. § 1182(a)(6)(C)(i), and falsely representing himself to be
a citizen, see 8 U.S.C. § 1182(a)(6)(C)(ii). The Government later added a third charge of
commission of a crime of moral turpitude (i.e., assaulting a police officer with a
dangerous weapon). See 8 U.S.C. § 1182(a)(2)(A)(i)(I).
Perez-Gill concedes removability, but applied for discretionary cancellation of
removal under 8 U.S.C. § 1229b.1 The Immigration Judge (“IJ”) held a hearing and

-- 2 of 5 --

1(...continued)
whole and “balance the adverse factors evidencing the alien’s undesirability as a
permanent resident with the social and humane considerations presented in his (or her)
behalf to determine whether the granting of . . . relief appears in the best interest of this
country.” Matter of C-V-T, 22 I. & N. Dec. 7, 11 (BIA 1998) (internal quotations
omitted).
3
granted the application on August 30, 2007. The IJ expressed concern with Perez-Gill’s
conduct, including (1) his multiple arrests and convictions, (2) his failure to file tax
returns since 1999, and (3) his purchase of a fake driver’s license and assumption of a
false identity. The IJ explained that Perez-Gill’s explanations for his conduct “had a
certain hollow ring” and that he had spun a “web of deceit.” (IJ Dec. at 5; A.41.) He
ultimately granted the application, however, primarily out of sympathy for Perez-Gill’s
mother. (IJ Dec. at 7; A.43.) In doing so, the IJ noted that “I don’t think [Perez-Gill] has
shown that even individually he deserves this,” and that his ruling came “within a razor’s
edge of going the other way[.]” (Id.)
The Government appealed. The BIA reviewed the IJ’s exercise of discretion de
novo, see 8 C.F.R. §1003.1(d)(3)(ii), and, after thoroughly discussing the relevant factors,
concluded that the IJ’s ruling struck the wrong balance. Accordingly, the BIA sustained
the Government’s appeal and ordered Perez-Gill’s removal to the Dominican Republic.
Perez-Gill petitions for review.
II.
“This Court generally lacks jurisdiction to review discretionary decisions made
under § 1229b regarding cancellation of removal.” Mendez-Reyes v. Att’y Gen., 428

-- 3 of 5 --

4
F.3d 187, 189 (3d Cir. 2005) (citing 8 U.S.C. § 1252(a)(2)(B)(i)). In addition, we
generally lack jurisdiction to review removal orders entered against aliens who committed
crimes involving moral turpitude. See 8 U.S.C. § 1252(a)(2)(C). We retain jurisdiction,
however, to review “constitutional claims or questions of law.” Mendez-Reyes, 428 F.3d
at 189 (citing 8 U.S.C. § 1252(a)(2)(D)). The Government asks us to dismiss Perez-Gill’s
petition for lack of jurisdiction because his arguments amount to no more than a challenge
to the BIA’s exercise of its discretion in balancing the relevant factors. We agree that
much of Perez-Gill’s brief argues merely that the discretionary factors weigh in his favor,
and we will dismiss his petition to that extent. See Cospito v. Att’y Gen., 539 F.3d 166,
171 (3d Cir. 2008).
Though Perez-Gill raises two arguments that might be characterized as questions
of law that we have jurisdiction to review, they are unpersuasive. Perez-Gill notes that
the BIA referred to his criminal history as “serious,” whereas the IJ referred to his
behavior merely as “mischievous.” Thus, he argues that the BIA both engaged in
impermissible fact-finding and overruled the IJ’s finding of fact without determining that
they were “clearly erroneous.” 8 C.F.R. § 1003.1(d)(3)(i) & (iv). The BIA, however,
neither found any facts nor overruled any of the IJ’s findings. It did not, for example,
find that Perez-Gill had engaged in any conduct beyond that discussed by the IJ. The
BIA characterized that conduct as “serious,” but that characterization merely indicates the
weight it accorded that conduct in the exercise of its discretion. It is not a finding of fact.
See Wallace v. Gonzales, 463 F.3d 135, 140-41 (2d Cir. 2006) (rejecting similar

-- 4 of 5 --

5
argument).
Moreover, it is not inconsistent with the IJ’s view of Perez-Gill’s conduct. The IJ
stated that Perez-Gill likely “engaged in a bit more mischievous activities than he’s
owned up to today” (IJ Dec. at 5; A.41), but he clearly regarded Perez-Gill’s conduct as
“serious”—he referred to the adoption of a false identity as “serious,” (id.), and stated that
he did not believe Perez-Gill had considered the “serious consequences” of his actions (IJ
Dec. at 6; A.42). Thus, the BIA did not overturn any factual finding made by the IJ.
Instead, it merely disagreed with the IJ’s exercise of his discretion, and we lack
jurisdiction to review that ruling.
Accordingly, we will dismiss the petition to the extent that it challenges the BIA’s
exercise of discretion and deny it to the extent it raises questions of law.

-- 5 of 5 --