Orlando M. Trancho v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-3804
___________
ORLANDO M. TRANCHO,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
__________________________
Petition for Review of an Order of the
United States Department of Justice
Board of Immigration Appeals
(Agency No. A97-149-575)
Immigration Judge: Alberto J. Riefkohl
__________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
September 2, 2009
Before: RENDELL, GREENBERG and VAN ANTWERPEN , Circuit Judges.
(Filed September 03, 2009 )
___________
OPINION
___________
PER CURIAM
Orlando M. Trancho petitions for review of an order of the Board of Immigration
Appeals (“BIA”) affirming the Immigration Judge’s (“IJ”) final order of removal. For the

-- 1 of 7 --

At the time he sought to adjust his status, his wife was not yet a U.S. citizen.1
2
reasons that follow, we will deny his petition for review.
Trancho is a native and citizen of Portugal. He arrived in the United States in
1989 on a visitor’s visa, which he overstayed. Following his second conviction for
receiving stolen property on October 27, 2006, Trancho was charged with removability
for having overstayed his visa and for having committed two or more crimes of moral
turpitude. Trancho is married to a United States citizen. His parents are lawful
permanent residents of the United States and his mother suffers from severe depression.
After being charged with removability, he sought a waiver of inadmissibility so as to
allow him to apply for an adjustment of status based on an approved labor certification.1
Pursuant to INA § 212(h)(1)(B), “the Attorney General may, in his discretion,” grant an
alien a waiver of inadmissibility, “if it is established to the satisfaction of the Attorney
General that the alien’s denial of admission would result in extreme hardship to the
United States citizen or lawful[] resident spouse, parent, son, or daughter . . . .” 8 U.S.C.
§ 1182(h)(1)(B).
On April 24, 2007, the IJ denied Trancho’s request for a waiver “as a matter of
discretion,” finding that despite his prima facie eligibility, the equities weighed against
granting one. (J.A. 301.) As part of his conclusion, the IJ held that he was “not
persuaded that Respondent’s removal would result in extreme hardship to Respondent’s

-- 2 of 7 --

3
U.S. citizen spouse.” (J.A. 301.) The BIA remanded because the IJ failed to consider the
effect of Trancho’s removal on his lawful permanent resident parents. (J.A. 47-48.)
On September 13, 2007, while his case was on remand to the IJ, Trancho’s 1996
New Jersey State conviction for receiving stolen property was vacated. (J.A. 16, 75-89.)
He apprised the IJ of this development in the context of a motion for a bond hearing.
(Id.) One day later, on September 14, 2007, the IJ issued his decision denying Trancho’s
application for a waiver. (J.A. 54-61.) There was no discussion of the vacatur of his
1996 conviction in the IJ’s opinion. (Id.) The IJ concluded that while Trancho’s removal
proceedings had affected his mother and his removal might exacerbate her symptoms, she
had been suffering from depression for nine years and it was not clear that her depression
would be resolved if his request for a waiver was granted. (J.A. 60-61.) Additionally, the
IJ held that Trancho’s potential eligibility for an adjustment of status based on his wife’s
citizenship was not “an equity sufficient to outweigh the seriousness of his criminal past.”
(J.A. 61.)
Trancho sought review by the BIA, arguing that the matter should be remanded to
the IJ for consideration of the new evidence he submitted regarding the vacatur of his
1996 conviction, and for a re-assessment of the hardship to his mother should he be
removed. (J.A. 18-22.) On October 12, 2007, while his appeal to the BIA was pending,
the IJ granted his motion to be released on bond, based on the “material change in

-- 3 of 7 --

In addressing the impact of Trancho’s remaining 2006 conviction for receiving stolen2
property on his underlying immigration proceedings, the IJ speculated that the remaining
conviction might have fallen under “the ‘petty offense’ exception for crimes involving
moral turpitude.” (J.A. 93.) The subsection referred to by the IJ provides that where an
alien has committed only one crime of moral turpitude as defined in INA
§ 212(a)(2)(A)(i)(I), he is not inadmissible if “the maximum penalty possible for the
crime of which the alien was convicted . . . did not exceed imprisonment for one year and,
if the alien was convicted of such crime, the alien was not sentenced to a term of
imprisonment in excess of 6 months (regardless of the extent to which the sentence was
ultimately executed).” 8 U.S.C. § 1182(a)(2)(A)(ii)(II). Because the IJ did not have the
record before him, he granted Trancho’s motion to be released on bond. (J.A. 93-94.)
While Trancho argues that the BIA’s refusal to remand to the IJ prevented him from
“show[ing] whether his remaining conviction may be deemed to be a ‘petty offense’”
(Pet’r Br. 28), the record clearly reflects that it cannot. Trancho was convicted of
receiving stolen property in the third degree pursuant to N.J. Stat. Ann. § 2C:20-7, an
offense which carries a maximum sentence of five years. See N.J. Stat. Ann. § 2C:43-6.
(J.A. 3, 558-59.) He was actually sentenced to three years of probation. (Id.) In its
opinion, the BIA correctly held that Trancho made no claim or showing that his
conviction constituted a “petty offense” and, indeed, as it carried a maximum possible
penalty of five years’ imprisonment, it cannot. See 8 U.S.C. § 1182(a)(2)(A)(ii)(II). (J.A.
3, n.2.) Accordingly, Trancho would still require a waiver of inadmissibility despite the
vacatur of his 1996 conviction. See 8 U.S.C. § 1182(a)(2)(A)(i)(I).
4
circumstance” occasioned by the vacatur of his 1996 conviction. (J.A. 91-95.) On2
appeal, the BIA adopted and affirmed the IJ’s determination that his qualifying relatives
would not experience extreme hardship should he be removed, and held that Trancho had
failed to demonstrate that remand to the IJ to consider the vacatur of his 1996 conviction
was warranted, as he had not shown how the vacatur materially affected the outcome of
his proceedings. (J.A. 2-4.) Trancho timely filed a petition for review.
We have jurisdiction over this petition for review under 8 U.S.C. § 1252.
We lack jurisdiction over that aspect of the BIA’s order affirming the IJ’s discretionary

-- 4 of 7 --

5
denial of a waiver of inadmissibility. See 8 U.S.C. §§ 1252(a)(2)(B)(i) & 1182(h) (“No
court shall have jurisdiction to review a decision of the Attorney General to grant or deny
a waiver under this subsection.”); see also Mendez-Moranchel v. Ashcroft, 338 F.3d 176,
179 (3d Cir. 2003) (holding that the “hardship determination” is discretionary and,
accordingly, this Court lacks jurisdiction to review it). However we retain jurisdiction
over constitutional claims and questions of law. See 8 U.S.C. § 1252(a)(2)(D).
In his petition for review, Trancho challenges the BIA’s review of the IJ’s
determination that he failed to demonstrate that his mother would suffer “extreme
hardship” as a result of his removal. As stated above, we lack jurisdiction to review this
claim. As Trancho’s remaining two claims are legal ones, however, we consider them in
turn. First, Trancho argues that, in denying his motion to remand for the consideration of
additional evidence, the BIA engaged in inappropriate fact-finding in concluding that he
had not demonstrated the materiality of the vacatur of his 1996 conviction to the IJ’s
determination that he had not satisfied the standard for a waiver. Second, Trancho argues
that his right to due process was violated by the BIA’s failure to remand the matter to the
IJ as, in doing so, it prevented him from fully developing the record below.
In connection with his appeal brief, Trancho filed a document with the BIA
entitled “Motion to File Additional Evidence”, in which he asked the BIA to receive into
evidence his renewed motion for a bond hearing indicating that his 1996 conviction had
been vacated, and the IJ’s opinion granting his request to be released on bond. (J.A. 26-

-- 5 of 7 --

6
43.) In its decision, the BIA construed this as a motion to remand, which it denied. (J.A.
3-4.) In considering Trancho’s motion to remand, the BIA held that the vacatur was not
determinative because, while he may no longer be removable for having committed two
or more crimes of moral turpitude, he remains removable for having overstayed his visa.
See 8 U.S.C. § 1227(a)(1)(B). (J.A. 3.) Additionally, he remains ineligible for an
adjustment of status without a waiver based on his 2006 conviction for receiving stolen
property. See 8 U.S.C. § 1182(a)(2)(A)(i)(I). (J.A. 3.) Because it affirmed the IJ’s
hardship determination, the BIA concluded that there was no need to remand to the IJ to
consider the effect of the vacated conviction, if any. (J.A. 3.) Trancho challenges this
conclusion, arguing that in reaching it, the BIA engaged in “inappropriate fact-finding.”
We disagree. In its decision, the BIA correctly concluded that Trancho failed to make
any argument to the IJ that the vacated conviction would have obligated him to delay the
issuance of his September 14, 2007 decision, nor did he request a continuance or
adjournment of the proceedings before the IJ upon receiving notice of the vacatur. The
BIA then proceeded to consider whether Trancho had met the requirements for a motion
to remand. While the BIA has noted that motions to remand are not explicitly provided
for by the statutory scheme, when such a motion requests relief normally provided for by
a motion to reopen or to reconsider, the BIA will treat is as such. See Matter of Coelho,
20 I. & N. Dec. 464, 471 (BIA 1992). Here, because Trancho requested remand to the IJ
to consider evidence not previously before it, the BIA treated it as a motion to reopen and,

-- 6 of 7 --

7
accordingly, asked whether Trancho had demonstrated that the new evidence would likely
change the result in his case. See 8 C.F.R. § 1003.2(c)(1) (requiring that the Board
determine if the evidence forming the basis for a motion to reopen is material and was not
previously available); INS v. Abudu, 485 U.S. 94, 104 (1988) (charging the BIA with
determining whether the applicant has offered previously unavailable material evidence
and demonstrated prima facie eligibility for relief sought). Because it concluded that
Trancho had not demonstrated how the vacatur materially affected the outcome of the
removal proceedings, it denied his motion to remand. This does not reflect inappropriate
fact-finding but rather the proper exercise of the BIA’s duties when considering a motion
to reopen. See Abudu, 485 U.S. at 104; Shardar v. Attorney General, 503 F.3d 308, 313
(3d Cir. 2007). Accordingly, we conclude that this claim is without merit.
Finally, Trancho claims that by preventing him from “developing the record to
determine the full significance of the vacatur of his 1996 conviction” the BIA denied him
his right to due process. (Pet’r Br. 27-28.) He essentially claims that he was denied the
right to a fair hearing. See Singh v. Gonzales, 432 F.3d 533, 541 (3d Cir. 2006). To
prevail on this claim, Trancho is required to show “substantial prejudice.” See id.
Because he has not demonstrated on any level in these proceedings how the introduction
of evidence regarding the vacatur of his 1996 conviction would have affected the IJ’s
decision, he has not satisfied this standard.
Based on the foregoing, we will deny the petition for review.

-- 7 of 7 --