Eddie Fernando Bernabe-Reyes v. Attorney General of the United States

IMG-062 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-1117
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EDDIE FERNANDO BERNABE-REYES,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A037-856-029)
Immigration Judge: Honorable Annie S. Garcy
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
January 4, 2010
Before: RENDELL, FISHER and GARTH, Circuit Judges.
(Filed: January 19, 2010)
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OPINION OF THE COURT
___________
PER CURIAM
Petitioner Eddie Fernando Bernabe-Reyes seeks review of the Board of
Immigration Appeals’ (“BIA”) final order of removal. In its order, the BIA affirmed the

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Immigration Judge’s (“IJ”) decision to deny his application for cancellation of removal
under Immigration and Nationality Act (“INA”) § 240A. We will dismiss the petition for
review in part and deny it in part.
I.
Bernabe-Reyes is a native and citizen of Ecuador who became a lawful permanent
resident of the United States in July 1983. He was three years old at the time. In April
2004, Bernabe-Reyes was convicted of the crime of child abuse, in violation of New
Jersey law. In April 2005, after violating his two-year period of probation by contacting
the victim of his crime, Bernabe-Reyes was sentenced to eighteen months of
imprisonment. In August 2005, he was served with a Notice to Appear, charging him
with being removable under INA § 237(a)(2)(E)(i), as an alien who at any time after
admission has been convicted of a crime of domestic violence, a crime of stalking, or a
crime of child abuse, child neglect, or child abandonment.
As relief from removal, Bernabe-Reyes applied for cancellation of removal under
INA § 240A [8 U.S.C. § 1229b(a)]. Following a hearing, the IJ denied Bernabe-Reyes’
application and ordered him removed. The IJ determined that Bernabe-Reyes’ deliberate
and knowing violation of his probation and pursuit of the victim in his case outweighed
the other positive factors that he presented in support of his application.
Bernabe-Reyes filed an appeal with the BIA and, in a December 2008 decision, the
BIA dismissed his appeal. The BIA observed that even though Bernabe-Reyes presented

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significant positive equities, including his work history and the fact that he has numerous
relatives in the United States, those equities did not outweigh the negative factors in his
case. The negative factors cited by the BIA were his two prior arrests for possession of
marijuana and violating his probation by contacting the victim in his child abuse case,
who was a minor at the time. This petition for review followed.
II.
To be eligible for cancellation of removal under 8 U.S.C. § 1229b(a), an alien must
demonstrate his statutory eligibility and show that he warrants relief as a matter of
discretion. Matter of C-V-T, 22 I. & N. Dec. 7, 10 (BIA 1998). The BIA must weigh the
favorable and adverse factors to determine whether, on balance, the “totality of the
evidence” indicates that the alien has adequately demonstrated that he warrants a
favorable exercise of discretion and a grant of cancellation of removal. Matter of
Sotelo-Sotelo, 23 I. & N. Dec. 201, 204 (BIA 2001).
Bernabe-Reyes raises three questions in his petition for review: first, he argues that
the BIA failed to “meaningfully consider” the positive equities in his case; second, he
claims that the BIA violated his due process rights when it failed to observe several
important positive equities in the record before rendering a decision; and third, he argues
that the BIA departed from its decision in Matter of Arreguin De Rodriguez, 21 I. & N.
Dec. 38 (BIA 1995), when it considered his rehabilitation factor as a prerequisite to a
grant of relief.

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We agree with the Government that we lack jurisdiction to consider Bernabe-
Reyes’ first claim that the BIA failed to meaningfully consider the equities in the case.
We have jurisdiction to review final orders of the BIA under 8 U.S.C. § 1252(a)(1).
However, the INA states that “no court shall have jurisdiction to review [] any judgment
regarding the granting of relief under section . . . 1229b . . . of this title.”
8 U.S.C. § 1252(a)(2)(B)(i). Notwithstanding, we retain jurisdiction to review
constitutional claims and questions of law. See 8 U.S.C. § 1252(a)(2)(D).
Bernabe-Reyes argues that the BIA did not meaningfully consider the positive
equities in the case, while giving substantial consideration to the negative factors. In
making this argument, however, Bernabe-Reyes challenges only the weight given to the
evidence, not the legal standard that the BIA employed in reaching its decision. Such a
claim challenges an exercise of the BIA’s discretion over which this Court does not have
jurisdiction. See Jarbough v. Att’y Gen., 483 F.3d 184, 189 (3d Cir. 2007).
The Government also argues that we lack jurisdiction to review Bernabe-Reyes’
due process claim in which he avers that the BIA entirely failed to consider several of his
most compelling positive equities before rendering a decision. The Government argues
that Bernabe-Reyes is merely recasting his challenge to the BIA’s discretionary
determination as a constitutional claim so that we may assert jurisdiction. To the extent
that the claim challenges the weight the BIA gave to the equities in the case as a matter of
discretion, we agree that we lack jurisdiction to consider it. However, we read Bernabe-

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We review questions of law de novo, but we “defer to the BIA’s reasonable1
interpretations of statutes it is charged with administering.” Augustin v. Att’y Gen, 520
F.3d 264, 267 (3d Cir. 2008).
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Reyes’ brief to claim that the BIA ignored certain positive equities altogether before
engaging in the discretionary balancing of all of the factors in the case. Because Bernabe-
Reyes appears to argue that the BIA departed from the legal standard for determining
cancellation of removal as set forth in Matter of Sotelo-Sotelo by failing to observe all of
the factors before it prior to rendering a discretionary decision, we retain jurisdiction over
the claim.1
The claim is without merit, however. As mentioned, Bernabe-Reyes claims that
the BIA ignored several compelling positive equities in the record. These include the
extreme hardship that deportation would cause his grandmother for whom he provides
around-the-clock medical care, the fact that he serves as a surrogate father to his half-
siblings and provides financial support for his mother, that he has filed federal income
taxes, and that he knows almost nothing about Ecuador and has no family there.
However, a review of the BIA’s decision shows that it did consider those equities before
rendering a decision – “[t]he respondent has significant positive equities like long
residence in the United States that began at a young age, work history, and several close
relatives who are lawful permanent residents or citizens of the United States. The
respondent also appears to be instrumental to caring for his grandmother, who suffered a
stroke.” (A.R. 4 (internal record citations omitted).) Thus, any argument that the BIA

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failed to follow its decision in Matter of Sotelo-Sotelo is without merit.
The Government also argues that we lack jurisdiction to consider Bernabe-Reyes’
rehabilitation claim, contending that it is merely a third attempt to challenge the weight
the BIA gave to the equities in the case in the exercise of its discretion. To the extent that
the claim challenges the weight the BIA gave to the equities in the case as a matter of
discretion, we again agree that we lack jurisdiction to consider it. However, we read
Bernabe-Reyes’ brief to argue that, like in Matter of Arreguin De Rodriguez, the BIA
departed from the legal standard for determining cancellation of removal by deciding that
Bernabe-Reyes’ failure to show rehabilitation precluded relief. Thus, this claim raises a
question of law over which we retain jurisdiction.
In Matter of Arreguin De Rodriguez, the BIA considered a request for relief from
exclusion by a woman who was serving a term of imprisonment on her conviction for
importing marijuana. The BIA rejected the IJ’s decision that Arreguin “must also
convince the court that she has rehabilitated.” 21 I. & N. Dec. at 40 (quotation marks
omitted). The BIA explained that an alien’s rehabilitation is one of many factors to be
considered in evaluating whether relief is warranted. Id.
Bernabe-Reyes argues that the BIA treated the rehabilitation factor in his case as a
prerequisite to granting relief. We disagree. As mentioned earlier, the BIA referenced a
number of important factors, including Bernabe-Reyes’ long residence in the United
States, his many relatives in the United States, and the fact that he contributes to the care

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of his grandmother. Furthermore, the BIA explicitly acknowledged that where a criminal
conviction exists, rehabilitation “ordinarily” must be shown, but it is not a prerequisite for
the grant of relief. (A.R. 4.) We therefore cannot conclude that the BIA used a legal
standard different from the one established in Matter of Arreguin De Rodriguez.
We will therefore dismiss the petition for review in part and deny it in part.

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