Pursuant to Federal Rule of Appellate Procedure 43 c 2 , Acting Attorney General… v. Keisler UNITED STATES COURT OF APPEALS 1 FOR THE SECOND CIRCUIT 2 August Term, 2006…

* Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
Acting Attorney General Peter D. Keisler is automatically
substituted for former Attorney General Alberto R. Gonzales as
the respondent in this case.
05-3915-ag
Noble v. Keisler
UNITED STATES COURT OF APPEALS 1
FOR THE SECOND CIRCUIT 2
August Term, 2006 3
(Argued: December 19, 2006 Decided: October 2, 2007 4
Errata filed: October 26, 2007) 5
Docket No. 05-3915-ag 6
7
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BRYAN NOBLE, 9
Petitioner, 10
- v - 11
PETER D. KEISLER, 12
Respondent.*
13
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Before: POOLER, SACK, and WESLEY, Circuit Judges. 15
Petition for review of a decision of the Board of 16
Immigration Appeals vacating an immigration judge's decision 17
granting the petitioner's application for a waiver of 18
inadmissibility under section 212(c) (now repealed) of the 19
Immigration and Nationality Act. 20
Petition dismissed. 21
RUCHI THAKER, Bretz & Coven, LLP 22
(Matthew L. Guadagno, Kerry W. Bretz, 23
and Jules E. Coven, on the brief), New 24
York, NY for Petitioner. 25

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1 Although section 212(c) has been repealed, it
nevertheless applies to Noble because he pleaded guilty to his
crimes prior to the repeal of this section. Khan v. Gonzales,
495 F.3d 31, 33 n.1 (2d Cir. 2007) (citing INS v. St. Cyr, 533
U.S. 289, 326 (2001)).
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MELISSA A. SWAUGER, Assistant United 1
States Attorney in the Middle District 2
of Pennsylvania (Thomas A. Marino, 3
United States Attorney, on the brief), 4
Harrisburg, PA for Respondent. 5
SACK, Circuit Judge: 6
Bryan Noble, a citizen of Jamaica, petitions for review 7
of a decision by the Board of Immigration Appeals ("BIA") denying 8
his application for a waiver of inadmissibility under section 9
212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c) 10
("INA").1 In re Bryan Noble, No. A 41 651 242 (B.I.A. June 30, 11
2005) ("BIA Opinion"). The BIA sustained the government's appeal 12
and vacated the decision of Immigration Judge ("IJ") Margaret 13
McManus granting Noble's application. In re Bryan Noble, No. A 14
41 651 242 (Immig. Ct. N.Y. City Jan. 15, 2004) ("IJ Decision"). 15
Noble now petitions for review, arguing that the BIA 16
applied an incorrect legal standard, as established by agency 17
regulations, to its review of the IJ's determination that Noble 18
had been rehabilitated subsequent to his extensive history of 19
criminal behavior. Because we conclude that the BIA did not 20
reject a finding of fact by the IJ that Noble was rehabilitated, 21
but instead evaluated the nature and extent of his rehabilitation 22
as one equity among many in exercising its discretion, we 23
conclude that the petitioner is, in substance, asking us to 24

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review an exercise of discretion by the BIA. We do not have 1
jurisdiction to do so, and we therefore dismiss the petition. 2
BACKGROUND 3
Noble entered the United States on a visitor's visa in 4
1982, at the age of twelve. He became a lawful permanent 5
resident on March 10, 1988. Soon thereafter, he was arrested for 6
the first time. He was subsequently arrested on six other 7
occasions. Most of his arrests were drug-related; all led to 8
criminal proceedings in New York state courts. 9
The petitioner's legal troubles prompted the initiation 10
of his immigration proceedings and two delays thereof. Nearly 11
fifteen years after they began, Noble now petitions this Court to 12
review the BIA's denial of discretionary relief from removal. 13
Noble's Criminal Convictions and Sentences 14
Noble's first arrest occurred some seven months after 15
he obtained lawful permanent resident status. He pleaded guilty 16
in 1989 to criminal possession of a controlled substance. He was 17
sentenced as a youthful offender to five years' probation. 18
On April 26, 1990, shortly after his probationary 19
sentence was imposed, Noble was again arrested, this time for 20
criminal impersonation. He pleaded guilty to disorderly conduct 21
for which he was sentenced to pay a fine. 22
Seven months later, Noble was arrested following a 23
police drug-raid. At the time of his arrest, he had twenty-one 24
bags of cocaine base ("crack"), individually packaged for sale, 25
at his feet. On October 30, 1991, before the possession-of-crack 26

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2 On March 1, 2003, the Immigration and Naturalization
Service was reconstituted as the Bureau of Immigration and
Customs Enforcement ("ICE") and the Bureau of U.S. Citizenship
and Immigration Services, both within the Department of Homeland
Security. See Monter v. Gonzales, 430 F.3d 546, 548 n.1 (2d Cir.
2005). Because Noble's removal proceedings began before this
date, we refer to it as the INS in this opinion where
appropriate.
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prosecution had been resolved, Noble was arrested in the course 1
of another police drug raid for possession of crack with the 2
intent to sell. At the time of this arrest, Noble also had in 3
his possession a loaded semi-automatic pistol with a defaced 4
serial number. On February 25, 1992, while these two cases were 5
pending, Noble was arrested yet again for possession of crack. 6
On November 4, 1992, Noble pleaded guilty to the 7
criminal charges arising from his third and fourth arrests and 8
was sentenced, for each crime, to three-and-one-half to ten-and- 9
one-half years' imprisonment, to run concurrently. Noble served 10
twenty-two months' imprisonment for these offenses. 11
Noble's Removal Proceedings 12
On August 13, 1993, the INS issued an order to show 13
cause to Noble based on his previous convictions for drug- 14
trafficking crimes.2 In it, the INS charged Noble with 15
removability under section 241(a)(2)(B)(i) of the INA, 8 U.S.C. 16
§ 1251(a)(2)(A)(i) (1994) (current version at 8 U.S.C. § 1227), 17
as an alien convicted of a controlled substance violation, and 18
section 241(a)(2)(A)(iii) of the INA, 8 U.S.C. 19
§ 1251(a)(2)(A)(iii) (1994) (current version at 8 U.S.C. § 1227), 20

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as an alien convicted of an aggravated felony. Noble has never 1
disputed his deportability or removability on these bases. 2
On January 10, 1995, Noble filed an application for 3
relief under section 212(c). While Noble's section 212(c) 4
hearing was pending, he was arrested a sixth time, this time for 5
selling crack. His deportation proceedings were administratively 6
closed pending a resolution of charges in connection with that 7
arrest. He later pleaded guilty to criminal possession of a 8
controlled substance and was sentenced to a conditional 9
discharge. 10
Noble's removal hearings were reopened but suspended 11
again after he was arrested a seventh time on February 21, 2000. 12
Noble pleaded guilty to charges of disorderly conduct arising out 13
of a shoplifting incident, was sentenced to a conditional 14
discharge, and was asked, and agreed, to participate in a drug 15
recovery program. 16
The IJ's Decision 17
On March 28, 2002, almost a decade after deportation 18
proceedings against him had begun, Noble received a hearing 19
before an IJ to address his section 212(c) application. He and 20
his wife both testified. 21
Noble recounted his extensive criminal record and 22
admitted to having committed additional drug offenses for which 23
he had not been arrested and, therefore, of which the INS had not 24
been aware. He expressed his regret about that phase of his life 25
and asserted that he had since turned his life around. 26

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Noble's wife testified to Noble's importance to their 1
family as a father, stepfather, caretaker, and breadwinner. She 2
said that, were Noble removed from the United States, the family 3
would no longer be able to afford to pay the mortgage on their 4
home and would therefore be forced to leave it. 5
Noble also submitted several documents in support of 6
his relief application relating to his marriage and extensive 7
family ties in the United States, his employment record and 8
financial stability, his post-parole record, and his positive 9
influence on his children. 10
The IJ issued a written decision on January 15, 2004. 11
After balancing the equities in accordance with Matter of Marin, 12
16 I. & N. Dec. 581 (BIA 1978), she granted Noble a waiver of 13
removal under section 212(c). See IJ Decision at 6-9. She found 14
Noble's testimony to be credible -- his "level of honesty 15
convince[d] [her] that he [had] been forthright in all of his 16
testimony." Id. at 2. The IJ identified several "unusual and 17
outstanding equities" that offset Noble's extensive criminal 18
history, including his family connections to the United States, 19
his positive family relationships, the financial and emotional 20
support he provided to his family, and his steady employment. 21
Id. at 6-9. Addressing the issue of rehabilitation, the IJ noted 22
that Noble had "expressed profound remorse for his criminal 23
convictions and regrets his criminal involvement." Id. at 7. 24
The IJ further found that Noble had "demonstrated a willingness 25
to continue his progress toward a drug-free and crime-free 26

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lifestyle." Id. at 8. The IJ said: "In light of the 1
for[e]going analysis and [Noble's] remorse for his past actions, 2
the Court concludes that [Noble] has finally demonstrated good 3
efforts at rehabilitation." Id. The IJ concluded that Noble's 4
positive equities outweighed the negative ones and granted 5
Noble's request for a waiver of inadmissibility pursuant to 6
section 212(c). See id. at 9. 7
The BIA's Opinion 8
The government appealed the IJ's decision to the BIA. 9
According to the BIA, the "sole question on appeal [was] whether 10
the respondent merit[ed] section 212(c) relief in the exercise of 11
discretion, a matter [the] Board reviews de novo." BIA Opinion 12
at 1. The BIA considered a variety of factors: the seriousness 13
of the criminal charges against Noble; the number of them 14
(including those which he admitted committing but for which he 15
had not been convicted); that "the circumstances under which some 16
of these crimes were committed suggest the possibility that he 17
was willing and able to advance his criminal enterprise by means 18
of violence"; and the fact that the criminal behavior continued 19
after his deportation proceedings began. Id. at 2. 20
In light of these "significant negative factors," the 21
BIA opined, Noble would be entitled to relief only if he "[came] 22
forward with evidence of unusual or outstanding equities, 23
including proof of genuine rehabilitation." Id. The BIA first 24
acknowledged that some of Noble's positive factors did rise to 25
the level of "unusual or outstanding equities." Id. at 3. The 26

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BIA further noted that Noble had "expressed sincere remorse for 1
his past conduct and . . . testified honestly about that conduct 2
in open court," thereby adhering to the IJ's credibility 3
determination. Id. 4
On the issue of rehabilitation, however, the BIA 5
observed: 6
[R]emorsefulness is not the same as 7
rehabilitation. The fact that the respondent 8
has continued to commit crimes after the 9
commencement of these proceedings and after 10
receiving explicit warnings from the [IJ] 11
about the potential consequences of such 12
conduct frankly leaves us with very serious 13
doubts as to the authenticity of [Noble's] 14
rehabilitation. 15
Id. After "balancing the various factors in [Noble's] case," 16
including "unusual or outstanding" equities in his favor, 17
"against the adverse factor of his very serious criminal history 18
and [the agency's] reservations as to his rehabilitation," the 19
BIA concluded that it was "constrained to find that a favorable 20
exercise of discretion would not be in the best interests of the 21
United States." Id. The BIA therefore vacated the IJ's decision 22
in relevant part and denied the section 212(c) waiver. 23
Noble petitions for review. 24
DISCUSSION 25
I. Jurisdiction 26
At least in the absence of constitutional or legal 27
issues, we do not have jurisdiction to review final orders of 28
removal against aliens deemed by the BIA to be removable because 29
they were convicted of a specified criminal offense, including, 30

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inter alia, an aggravated felony or controlled substance 1
violation. See 8 U.S.C. § 1252(a)(2)(C) (precluding jurisdiction 2
where alien is removed after violating 8 U.S.C. 3
§ 1227(a)(2)(A)(iii) (aggravated felony) or § 1227(a)(2)(B) 4
(controlled substance offense)). We also lack jurisdiction to 5
review purely discretionary decisions. See 8 U.S.C. 6
§ 1252(a)(2)(B)(ii). Section 106 of the REAL ID Act of 2005, 7
however, restored our jurisdiction over "constitutional claims or 8
questions of law." 18 U.S.C. § 1252(a)(2)(D); see Xiao Ji Chen 9
v. Dep't of Justice, 471 F.3d 315, 324 (2d Cir. 2006). 10
II. The BIA's Review of the IJ's Decision 11
The government seeks dismissal of the petition because, 12
it contends, we do not have jurisdiction to review the BIA's 13
discretionary decision denying a section 212(c) waiver of 14
inadmissibility. The petitioner does not assert that we have 15
jurisdiction to review the BIA's ultimate conclusion to deny his 16
application, nor could he successfully do so. See 17
Avendano-Espejo v. Dep't of Homeland Security, 448 F.3d 503, 504 18
(2d Cir. 2006) (per curiam). Instead, he contends that the BIA 19
erred on the narrow ground that it improperly applied de novo 20
review to the IJ's rehabilitation determination, contrary to 21
agency regulations that require clear error review for findings 22
of fact. See 8 C.F.R. § 1003.1(d)(3)(i). 23
As a Court of Appeals, we operate under the familiar 24
rule that when a district court makes a finding of fact or 25
exercises discretion conferred upon it, we must routinely defer 26

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to the district court in these matters on appeal. We will 1
overturn a district court's finding of fact only if it is 2
"clearly erroneous" and its exercise of discretion only if the 3
discretion has been "abused." See, e.g., United States v. 4
Agudelo, 414 F.3d 345, 348 (2d Cir. 2005) (findings of fact); 5
United States v. Rigas, 490 F.3d 208, 238 (2d Cir. 2007) 6
(exercise of discretion). While the scope of the BIA's review of 7
findings of fact on appeal from a ruling of an IJ is similar to 8
ours when reviewing factual findings of a district judge, the 9
BIA's standard of review of discretionary decisions by an IJ is 10
quite different from ours: 11
(i) . . . Facts determined by the immigration 12
judge including findings as to credibility of 13
testimony, shall be reviewed only to determine 14
whether the findings of the immigration judge are 15
clearly erroneous. 16
(ii) The Board may review questions of law, 17
discretion, and judgment and all other issues in 18
appeals from decisions of immigration judges de 19
novo. 20
8 C.F.R. §§ 1003.1(d)(3)(i)&(ii) (emphasis added). The 21
discretionary portion of an IJ's decision is thus reviewed by the 22
BIA as though it were deciding the issue in the first instance. 23
Noble argues that the BIA erred as a matter of law by 24
applying de novo review under subsection (ii) to overturn the 25
IJ's finding of fact that Noble had been rehabilitated. Because 26
it was a finding of fact, Noble contends, the BIA could do so 27
properly only under subsection (i) and only if it concluded that 28
the finding was clearly erroneous. Noble frames his argument as 29
a constitutional claim of a violation of his due process rights. 30

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Pet. Br. at 15. To determine whether we have jurisdiction, 1
however, we must "study the arguments asserted . . . [and] 2
determine, regardless of the rhetoric employed in the petition, 3
whether it merely quarrels over the correctness of the factual 4
findings or justification for the discretionary choices" made by 5
the BIA. Xiao Ji Chen, 471 F.3d at 329. Although the question 6
of the BIA's proper standard of review does not raise a 7
constitutional issue, Noble's argument is best interpreted to 8
assert that we have jurisdiction because he raises a question of 9
law -- the application by the BIA of a legally erroneous standard 10
of review. See Khan v. Gonzales, 495 F.3d 31, 35 (2d Cir. 2007) 11
("[E]ven when the petitioner fails to invoke the rhetoric of 'a 12
constitutional claim' or 'question of law,' our analysis of a 13
petitioner's arguments may reveal that they do in fact raise 14
reviewable issues."). Although in some circumstances we do have 15
jurisdiction to review such claims, see Barco-Sandoval v. 16
Gonzales, 496 F.3d 132, 135 n.5 (2d Cir. 2007); Khan, 495 F.3d at 17
34, here, no matter how it is framed, Noble's argument 18
mischaracterizes the nature of the agency's decision. The BIA's 19
conclusion regarding Noble's section 212(c) application was 20
discretionary and, therefore, beyond our jurisdiction. 21
The IJ, in her decision, referred to "evidence of 22
rehabilitation," IJ Decision at 9, and commented on Noble's 23
"willingness to continue his progress toward a drug-free and 24
crime-free lifestyle." Id. at 8. The IJ concluded that [Noble] 25
ha[d] finally demonstrated good efforts at rehabilitation." Id. 26

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3
Favorable considerations have been found to
include such factors as family ties within
the United States, residence of long duration
in this country (particularly when the
inception of residence occurred while the
respondent was of young age), evidence of
hardship to the respondent and family if
deportation occurs, service in this country's
Armed Forces, a history of employment, the
existence of property or business ties,
evidence of value and service to the
community, proof of a genuine rehabilitation
if a criminal record exists, and other
evidence attesting to a respondent's good
character (e.g., affidavits from family,
friends, and responsible community
representatives).
Matter of Marin, 16 I. & N. Dec. 581, 584-585 (BIA 1978).
-12-
The role of the BIA was to consider Noble's 1
rehabilitation, which the IJ had examined, and weigh it with and 2
against other relevant factors3 in order to render an informed 3
discretionary decision as to whether Noble should be permitted to 4
stay. See Restrepo v. McElroy, 369 F.3d 627, 634 (2d Cir. 2004) 5
("In evaluating a section 212(c) application, an immigration 6
judge must balance the adverse factors evidencing an alien's 7
undesirability as a permanent resident with the social and humane 8
considerations presented in his behalf.") (internal quotation 9
marks and citation omitted). The BIA did just that. It 10
concluded, "[W]hen we weigh the[] [favorable] equities against 11
the adverse factor of his very serious criminal history and our 12
reservations as to his rehabilitation we are constrained to find 13
that a favorable exercise of discretion would not be in the best 14
interests of the United States." BIA Opinion at 3. To be sure, 15

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the BIA also expressed its view that "[t]he fact that the 1
respondent has continued to commit crimes after the commencement 2
of these proceedings and after receiving explicit warnings from 3
the Immigration Judge about the potential consequences of such 4
conduct frankly leaves us with very serious doubts as to the 5
authenticity of the respondent's rehabilitation." Id. But the 6
BIA made this observation while addressing "the sole question on 7
appeal" -- "whether [Noble] merits section 212(c) relief in the 8
exercise of discretion . . . ." Id. at 1. It was thus 9
exercising its discretion by balancing the equities, including 10
rehabilitation, which, at least in this case, we do not have the 11
power to review. 12
In Wallace v. Gonzales, 463 F.3d 135 (2d Cir. 2006) 13
(per curiam), we addressed an argument similar to that which 14
Noble makes here. There, the IJ had granted the applicant's 15
petition under 8 U.S.C. § 1255, which allows the status of aliens 16
meeting certain criteria to "be adjusted by the Attorney General, 17
in his discretion and under such regulations as he may prescribe, 18
to that of an alien lawfully admitted for permanent residence." 19
Id. § 1255(a). After balancing the equities, the BIA overturned 20
the IJ's decision that the waiver should be granted. Wallace, 21
463 F.3d at 137. The Board concluded that the IJ "erred in 22
finding adequate evidence of rehabilitation which would outweigh 23
the negative criminal history," id., because "although 'the 24
evidence does suggest that [Wallace] has attempted to 25
rehabilitate himself while incarcerated, we cannot find that this 26

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outweighs the seriousness of his conviction for robbery and other 1
indications of criminal activity.'" Id. at 137-38 (quoting the 2
BIA's opinion in Wallace). Wallace argued on appeal "that the 3
BIA exceeded its authority under federal regulations when it 4
rejected the IJ's finding that Wallace had demonstrated 5
rehabilitation." Id. at 138. 6
We declined to consider Wallace's "argu[ment] that the 7
BIA violated 8 C.F.R. § 1003.1(d)(3)[(i)] when it reversed the 8
IJ's conclusion that Wallace merited an adjustment of status 9
because the factual findings of an IJ may be reversed only when 10
the Board deems them 'clearly erroneous.'" Id. at 140. "The BIA 11
did not reject any factual determination of the IJ with respect 12
to Wallace's 'rehabilitation.'" Id. at 141. Instead, we 13
concluded, the BIA had merely "recounted the IJ's findings and 14
concluded that the IJ incorrectly exercised his discretion in 15
granting Wallace an adjustment of status." Id. In doing so, we 16
noted that "[a]lthough any reversal by the BIA of an IJ's 17
discretionary determination must involve consideration of the 18
underlying facts, a review of the factual record by the BIA does 19
not convert its discretionary determination as to whether a 20
petitioner warrants an adjustment of status into improper 21
factfinding." Id. 22
We do not discount the possibility, of course, that in 23
another case, the BIA's declining properly to defer to factual 24
findings by the IJ regarding rehabilitation as required by 25
section 1003.1(d)(3)(i) will amount to an error of law. But 26

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here, we think, as in Wallace, the BIA was engaging in a 1
recalculation of the equities in declining to grant a 2
discretionary waiver of removal despite the IJ's conclusion to 3
the contrary. In the course of explaining its exercise of that 4
discretion, it noted the nature and extent of Noble's 5
rehabilitation and recorded its view that it had "reservations," 6
i.e., "very serious doubts" about it. BIA Decision at 3. It 7
would have made our review easier had the BIA said that it had 8
"reservations as to the extent of his rehabilitation" rather than 9
"reservations as to his rehabilitation," id., and to have 10
observed, "frankly," that it was left "with very serious doubts 11
as to the degree of [Noble's] rehabilitation" rather than as to 12
its "authenticity." Read in the context of the rest of the BIA's 13
opinion, however, it is clear that these comments were part of 14
the process by which the BIA made a judgment as to whether, in 15
light of Noble's rehabilitation, among other things, the Attorney 16
General's discretion ought to be exercised in his favor. 17
In its analysis, the BIA agreed with the IJ that Noble 18
had demonstrated unusual or outstanding equities, and further 19
adhered to the IJ's credibility determination, particularly as it 20
pertained to Noble's expression of remorse. But unlike the IJ, 21
the BIA did not think that Noble's positive equities, in 22
conjunction with any "evidence of rehabilitation," IJ Decision at 23
9, sufficiently outweighed the seriousness of his criminal 24
history to warrant the exercise of its favorable discretion. We 25
have no authority to review that discretionary determination. 26

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CONCLUSION 1
For the foregoing reasons, the petition is dismissed. 2

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