Sambo Chum v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-2165
___________
SAMBO CHUM,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A027-371-501)
Immigration Judge: Honorable Walter A. Durling
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 17, 2010
Before: BARRY, STAPLETON and NYGAARD, Circuit Judges
(Opinion filed March 23, 2010)
_________
OPINION
_________
PER CURIAM
Sambo Chum petitions for review of the Board of Immigration Appeals’ (“BIA”)
final order of removal. The Government has moved to dismiss the petition for lack of

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Chum was born in a Cambodian refugee camp in Thailand.1
Section 1229b(a) provides that the Attorney General may cancel the removal of an2
alien who “(1) has been an alien lawfully admitted for permanent residence for not less
than 5 years, (2) has resided in the United States continuously for 7 years after having
been admitted in any status, and (3) has not been convicted of any aggravated felony.”
8 U.S.C. § 1229b(a). If an alien meets these three requirements, the IJ, “upon review of
the record as a whole, ‘must 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.’” In re C-V-T-, 22 I. & N. Dec. 7, 11 (BIA 1998)
(quoting Matter of Marin, 16 I. & N. Dec. 581, 584 (BIA 1978)).
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jurisdiction. For the reasons that follow, we will deny the Government’s motion and
Chum’s petition for review.
I.
Because the background of this case is familiar to the parties, we discuss it only
briefly here. Chum, a native of Thailand and citizen of Cambodia, entered the United1
States as a refugee in 1985 and became a lawful permanent resident in 1989. In 2007, he
pleaded guilty in Rhode Island state court to possession of a sawed-off shotgun and
possession with intent to deliver marijuana. The court sentenced him to ten years’
imprisonment, with all but eighteen months of the sentence suspended. Chum was
released from prison after serving fifteen months. Shortly after his release, he was placed
in removal proceedings.
In October 2008, Chum applied for cancellation of removal under 8 U.S.C.
§ 1229b(a). After a hearing on the merits, the Immigration Judge (“IJ”) granted Chum’s2
application. The IJ recognized that Chum had been a member of a gang, had dropped out

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The BIA noted, without deciding, that “we are not convinced that [Chum] has3
established his burden in demonstrating eligibility for [cancellation of removal].”
(Decision of BIA at 2.)
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of high school, and had both an adult and juvenile criminal record. Nonetheless, the IJ
concluded that the positive equities “slightly offset” these negative factors. (Decision of
IJ at 4.) The IJ stated that “[w]hile there is no evidence of rehabilitation in this matter,
there is evidence of rehabilitative potential, including earning his GED, having no
problems while incarcerated, completing anger management and other prison
rehabilitative-type courses, having no intention of returning to his gang, and pursuing a
trade in the culinary arts.” (Id. at 3.) The IJ also emphasized the circumstances
surrounding Chum’s entry into the United States, noting that Chum “knows nothing of
Cambodia and has no relatives he knows of residing there.” (Id.)
The Government appealed the IJ’s ruling to the BIA, arguing that (1) Chum’s drug
conviction rendered him ineligible for cancellation of removal and (2) even if Chum was
eligible, the IJ erred in granting the application. The BIA ruled on the second argument
only, holding that the IJ erred in granting Chum’s application. The BIA concluded that3
Chum’s positive equities were insufficient to overcome the negative equities. Chum now
petitions for review of the BIA’s decision, and the Government has moved to dismiss the
petition for lack of jurisdiction.
II.
“This Court generally lacks jurisdiction to review discretionary decisions made

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As the Government explains, we lack jurisdiction to review that discretionary4
aspect of the BIA’s decision. See 8 U.S.C. § 1252(a)(2)(B)(i).
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under § 1229b regarding cancellation of removal.” Mendez-Reyes v. Att’y Gen. of the
U.S., 428 F.3d 187, 189 (3d Cir. 2005) (citing 8 U.S.C. § 1252(a)(2)(B)(i)). Additionally,
we generally lack jurisdiction to review final orders of removal entered against aliens
convicted of certain drug offenses. See 8 U.S.C. § 1252(a)(2)(C). We retain jurisdiction,
however, over constitutional claims and questions of law. See 8 U.S.C. § 1252(a)(2)(D).
In moving to dismiss, the Government contends that Chum’s petition challenges
merely the BIA’s discretionary balancing of the equities. We disagree. Chum claims that
the BIA applied the wrong standard of review and misapplied the balancing test
governing cancellation of removal applications. Because these claims fall within the
ambit of our jurisdiction under § 1252(a)(2)(D), the Government’s motion is denied.
III.
Although we have jurisdiction to consider Chum’s petition, he has not shown that
the BIA erred as a matter of law. Chum first claims that the BIA “applied the wrong
standard of review because it failed to defer to the [IJ’s] factual findings and reversed the
[IJ’s] decision without finding any of his findings clearly erroneous.” (Chum’s Opening
Brief at 2.) Nothing in the BIA’s decision, however, indicates that the BIA questioned
the IJ’s factual findings, let alone failed to defer to them. The BIA simply disagreed with
the IJ’s balancing of these findings. Because the BIA reviews that aspect of the IJ’s4

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decision de novo, see 8 C.F.R. § 1003.1(d)(3)(ii), the BIA did not need to deem the IJ’s
factual findings clearly erroneous to overturn the IJ’s grant of cancellation of removal.
Accordingly, the BIA did not apply the wrong standard of review.
Chum’s other claim is that the BIA ignored his “principal positive equities and
ameliorating aspects of his negative equities,” (Chum’s Opening Brief at 23), thereby
preventing it from properly applying the test for balancing the equities. Although we
recognize that the BIA’s decision discussed the negative aspects of Chum’s case at
greater length than the positive aspects, the BIA did consider both. Indeed, the BIA’s
decision mentioned Chum’s rehabilitative potential, his “long time physical presence and
family ties in the United States,” and the circumstances that brought him to this country.
(BIA Decision at 2.) The BIA simply concluded that these positive equities did not
outweigh Chum’s “criminal activities, gang affiliation, and the circumstances surrounding
his 2007 conviction involving both drugs and weapons.” (Id.) Morever, Chum has not
persuaded us that the absence in the BIA’s decision of any alleged “ameliorating aspects”
of his negative equities, such as the fact that he left the sawed-off shotgun in the trunk of
his car during the drug deal that led to his arrest, reflects anything more than the BIA’s
discretionary decision to afford this evidence little or no weight.
In light of the above, we will deny Chum’s petition for review.

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