Sorcia v. Holder

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

REYNALDO SORCIA, 

Petitioner,

v.

 No. 10-1431

ERIC H. HOLDER, JR., Attorney

General,

Respondent.



On Petition for Review of an

Order of the Board of Immigration Appeals.

Argued: March 23, 2011

Decided: July 1, 2011

Before MOTZ and WYNN, Circuit Judges, and

Ronald Lee GILMAN, Senior Circuit Judge of the

United States Court of Appeals for the Sixth Circuit,

sitting by designation.

Dismissed by published opinion. Judge Wynn wrote the opin-

ion, in which Judge Motz and Senior Judge Gilman joined.

2 SORCIA v. HOLDER

COUNSEL

ARGUED: H. Glenn Fogle, Jr., THE FOGLE LAW FIRM,

LLC, Atlanta, Georgia, for Petitioner. Michael Christopher

Heyse, UNITED STATES DEPARTMENT OF JUSTICE,

Washington, D.C., for Respondent. ON BRIEF: Tony West,

Assistant Attorney General, Civil Division, Mary Jane Can-

daux, Assistant Director, Office of Immigration Litigation,

UNITED STATES DEPARTMENT OF JUSTICE, Washing-

ton, D.C., for Respondent.

OPINION

WYNN, Circuit Judge:

It is axiomatic that a court lacking subject matter jurisdic-

tion over an appeal must dismiss the case. Petitioner Reynaldo

Sorcia ("Sorcia") asks this Court to review the decision of the

Board of Immigration Appeals ("BIA") to deny (1) his peti-

tion for cancellation of removal and (2) his motion to reopen

removal proceedings so that he could pursue cancellation of

removal after an adjustment of status for which he had an

application pending. However, because Sorcia raises no con-

stitutional claims or questions of law, we lack jurisdiction to

review the discretionary denial of cancellation of removal. 8

U.S.C. § 1252(a)(2)(B). Further, because the BIA based its

denial of Sorcia’s motion to reopen on a determination that

Sorcia did not merit the discretionary relief of cancellation of

removal, we also lack jurisdiction to review the denial of the

motion. See Obioha v. Gonzales, 431 F.3d 400, 406 (4th Cir.

2005). Accordingly, the appeal is dismissed.

I.

Sorcia is a citizen of Mexico. He became a temporary resi-

dent of the United States on November 16, 1988 and a lawful

SORCIA v. HOLDER 3

permanent resident on December 1, 1990. On February 5,

2007, he was placed in removal proceedings following the fil-

ing of a Notice to Appear with the Immigration Court.1 He

was charged with removability pursuant to 8 U.S.C.

1227(a)(2)(E)(i), which states that "[a]ny alien who at any

time after admission is convicted of a crime of domestic vio-

lence . . . is deportable."

Sorcia appeared before an Immigration Judge ("IJ") in

Atlanta, Georgia, and admitted that he had been convicted of

three offenses: (1) misdemeanor domestic violence on Febru-

ary 10, 1997; (2) misdemeanor assault and battery on April

14, 1997; and (3) misdemeanor domestic violence on Novem-

ber 3, 2003. In light of the domestic violence convictions,

Sorcia conceded his removability, and the IJ found by clear

and convincing evidence that Sorcia was removable.

Thereafter, Sorcia petitioned the IJ for cancellation of

removal. Because Sorcia had not been convicted of an aggra-

vated felony and had resided in the United States for more

than 16 years after becoming a lawful permanent resident, he

was statutorily eligible for cancellation of removal. Under 8

U.S.C. § 1229b(a),

[t]he Attorney General may cancel removal in the

case of an alien who is inadmissible or deportable

from the United States if the alien-

(1) has been an alien lawfully admitted for perma-

nent 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

1

"Jurisdiction vests, and proceedings before an Immigration Judge com-

mence, when a charging document is filed with the Immigration Court by

the Service." 8 C.F.R. § 1003.14(a).

4 SORCIA v. HOLDER

(3) has not been convicted of any aggravated felony.

Nonetheless, even where statutory eligibility is established, an

IJ retains discretion to grant or deny an application for cancel-

lation of removal, and the applicant must establish that he

warrants the relief sought. In re C-V-T, 22 I. & N. Dec. 7

(BIA 1998).

"[T]here is no inflexible standard for determining who

should be granted discretionary relief, and each case must be

judged on its own merits." Id. at 11 (citing In re L-, 3 I. & N.

Dec. 767, 770 (BIA 1949)). In applying his discretion, the IJ

must "balance the adverse factors evidencing an alien’s unde-

sirability as a permanent resident with the social and humane

considerations presented in his behalf to determine whether

the granting of section 212(c) relief appears in the best inter-

est of this country." In re Marin, 16 I. & N. Dec. 581, 584

(BIA 1978), abrogated on other grounds by In re Edwards,

20 I. & N. Dec. 191 (BIA 1990); see also In re C-V-T, 22 I.

& N. Dec. at 11 (finding the Marin balancing test appropriate

when considering requests for cancellation of removal under

8 U.S.C. § 1229b(a)).2

The IJ noted that Sorcia’s twenty-year residency in the

United States constituted a "significant positive equity"

2

"Among the factors deemed adverse to a respondent’s application have

been . . . the existence of a criminal record and, if so, its nature, recency,

and seriousness, and the presence of other evidence indicative of a respon-

dent’s bad character or undesirability as a permanent resident of this coun-

try." Marin, 16 I. & N. Dec. at 584. "Favorable considerations have been

found to include such factors as family ties within the United States, resi-

dence 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 prop-

erty or business ties, evidence of value and service to the community,

proof of a genuine rehabilitation if a criminal record exists, and other evi-

dence attesting to a respondent’s good character (e.g., affidavits from fam-

ily, friends, and responsible community representatives)." Id. at 584-85.

SORCIA v. HOLDER 5

weighing in favor of cancellation of removal. The IJ also

found that Sorcia’s family ties to citizens of the United States

and/or lawful permanent residents constituted a "positive fac-

tor." Moreover, the IJ found that Sorcia’s history of steady

employment weighed in his favor.

However, Sorcia’s criminal history weighed against him.

The court observed that Sorcia’s past criminal actions all

involved violence and had twice involved the use of firearms.

Further, Sorcia had attempted to minimize his responsibility

for his offenses. Also, given that Sorcia’s convictions

occurred over a period of years, the IJ opined that they dem-

onstrated a "propensity to resort to violence." The court addi-

tionally noted that Sorcia had failed to pursue treatment for

anger management to address this "propensity."

The IJ also considered "collaterally" the fact that Sorcia

had been charged with committing a lewd act on a minor,

despite the fact that this charge had not been prosecuted. The

IJ further considered as "an additional significant negative

factor" that Sorcia engaged in tax fraud. The court concluded

that:

[A]n individual who was given the grace of this

nation by making him a lawful permanent resident

and [has responded] by repeatedly engaging in vio-

lent activities that endanger both his family and other

individuals in this nation and has filed demonstrably

fraudulent tax returns is not deserving of a favorable

exercise of the Court’s discretion . . . .

The IJ accordingly denied Sorcia’s request for cancellation of

removal by order of February 4, 2009. Sorcia appealed to the

BIA.

The BIA issued a decision dismissing Sorcia’s appeal. Like

the IJ, the BIA opined that Sorcia’s length of residence in the

United States, family ties in this country, and steady employ-

6 SORCIA v. HOLDER

ment history all weighed in his favor. After considering the

equitable factors weighing in Sorcia’s favor, the BIA opined

that Sorcia’s "criminal history and lack of rehabilitation out-

weigh the favorable factors in this case." The BIA concluded

that Sorcia’s criminal history indicated an increased likeli-

hood that he would "have future encounters with the criminal

justice system and an adverse impact on the safety of his fam-

ily and community." Notably, the BIA expressly disavowed

reliance on either the charge of committing a lewd act on a

minor or Sorcia’s questionable tax history. Reasoning that it

would not be in the best interests of the United States to grant

Sorcia cancellation of removal, the BIA dismissed his appeal

on July 18, 2008. In the same decision, the BIA denied Sor-

cia’s motion to reopen his removal proceedings.

On April 12, 2010, Sorcia petitioned this Court for review

of the BIA’s decision. The government filed a motion to dis-

miss, or in the alternative, transfer the petition. The govern-

ment sought dismissal on the grounds that venue was

improper in this Circuit under 8 U.S.C. § 1252(b). Alterna-

tively, the government requested this Court to transfer the

case to the Eleventh Circuit pursuant to 28 U.S.C. § 1631.

Before turning to the merits of Sorcia’s case, we address the

government’s motion.

II.

The government’s motion to dismiss relied on 8 U.S.C.

§ 1252(b)(2), which states that a "petition for review [of an

order of removal] shall be filed with the court of appeals for

the judicial circuit in which the immigration judge completed

the proceedings." For reasons unique to the procedural history

of this case, the parties dispute where the IJ completed the

proceedings. Sorcia maintains that the proceedings were com-

pleted in Charlotte, North Carolina. The government argues

that the proceedings were completed in Atlanta, Georgia.

SORCIA v. HOLDER 7

Even assuming that Sorcia chose incorrectly when he

appealed the BIA’s decision to this Court, that error would

not deprive this Court of subject matter jurisdiction. While we

have not previously addressed the issue, courts in other cir-

cuits have unanimously held that § 1252(b)(2) is a nonjuris-

dictional venue provision. See Avila v. U.S. Atty. Gen., 560

F.3d 1281, 1284 (11th Cir. 2009); Moreno-Bravo v. Gonzales,

463 F.3d 253, 262 (2d Cir. 2006); Georcely v. Ashcroft, 375

F.3d 45, 49 (1st Cir. 2004); Nwaokolo v. I.N.S., 314 F.3d 303,

306 n.2 (7th Cir. 2002) (per curiam); cf. Jama v. Gonzales,

431 F.3d 230, 233 (5th Cir. 2005) (per curiam) (refusing to

raise the nonjurisdictional venue issue sua sponte); Bonho-

metre v. Gonzales, 414 F.3d 442, 446 n.5 (3d Cir. 2005).3 This

conclusion is not surprising, insofar as § 1252(b)(2) is titled

"Venue and forms." Also, the statute says nothing about "ju-

risdiction." See Moreno-Bravo, 463 F.3d at 259 ("In view of

the extraordinary attention Congress directed toward federal

jurisdiction over petitions for review in § 1252, . . . it is hard

for us to believe that the legislature would then neglect to

express a similarly clear intent—or any intent at all—to cir-

cumscribe jurisdiction . . . ."). Without hesitation, we join the

six circuits concluding that § 1252(b)(2) is a nonjurisdictional

venue provision. Accordingly, we decline the government’s

motion to dismiss this appeal based solely on Sorcia’s failure

to comply with § 1252(b)(2).4

3

Indeed, the government expressly conceded in its brief that

§ 1252(b)(2) is not jurisdictional.

4

As stated succinctly by the Seventh Circuit:

Provisions specifying where a suit shall be filed, as distinct from

specifying what kind of court or other tribunal it shall be filed in,

are generally considered to be specifying venue rather than juris-

diction. It would be usurpative for a federal court to assert juris-

diction over a case that the Constitution or statute had consigned

to a state court, or even for a federal district court to assert juris-

diction over a case that should have been brought in a federal

court of appeals . . . . But it is not usurpative for one federal court

of appeals to assert jurisdiction . . . over a case that it would have

8 SORCIA v. HOLDER

In the alternative, the government requests that this case be

transferred to the Eleventh Circuit. The government cites a

statute providing:

Whenever . . . an appeal, including a petition for

review of administrative action, is noticed for or

filed with such a court and that court finds that there

is a want of jurisdiction, the court shall, if it is in the

interest of justice, transfer such action or appeal to

any other such court in which the action or appeal

could have been brought at the time it was filed or

noticed, and the action or appeal shall proceed as if

it had been filed in or noticed for the court to which

it is transferred on the date upon which it was actu-

ally filed in or noticed for the court from which it is

transferred.

28 U.S.C. § 1631 (emphasis added). However, as explained

above, the failure to comply with § 1252(b)(2) does not affect

our jurisdiction over Sorcia’s petition, so arguably § 1631 is

inapplicable to cure failures to comply with that venue provi-

sion. See Moreno-Bravo, 463 F.3d at 263 ("The case sub

judice, of course, does not involve § 1631 because we do in

fact have jurisdiction to consider the merits, being concerned

only with venue and convenience."). Some courts have

reached the opposite conclusion, however, essentially reason-

ing that "jurisdiction" as used in § 1631 was not meant to

have a strictly technical meaning, and could also address

transfer for lack of venue. Rodriguez-Roman v. INS, 98 F.3d

416, 424 (9th Cir. 1996) ("[F]or purposes of the transfer stat-

ute, a court lacks jurisdiction if venue does not lie.").

been authorized to adjudicate if only the effects of the order

sought to be reviewed had been felt in one part of the country

rather than another.

State of New York v. Envtl. Prot. Agency, 133 F.3d 987, 990 (7th Cir.

1998).

SORCIA v. HOLDER 9

We hold that § 1631, which speaks exclusively of jurisdic-

tion, does not mandate transfer where venue is lacking. How-

ever, this does not mean that we lack authority to transfer

cases when we have jurisdiction but lack venue. Although the

authority to transfer a case under § 1631 exists only when the

transferring court lacks jurisdiction, courts have inherent

power to transfer cases over which they have jurisdiction but

not venue. See Dornbusch v. C.I.R., 860 F.2d 611, 611-14

(5th Cir. 1988) (per curiam); Alexander v. C.I.R., 825 F.2d

499, 501 (D.C. Cir. 1987). In Dornbusch, the Fifth Circuit

analyzed cases decided prior to the enactment of § 1631 and

noted that no court "which expressly addressed the matter

held that it had no authority to transfer a case, over which it

had jurisdiction but lacked venue, to another court of appeals

having both jurisdiction and venue." 860 F.2d at 613-14 (col-

lecting cases). Likewise, we follow this reasoning and hold

that where we have jurisdiction but lack venue, we have

inherent authority to transfer a case to another circuit where

both venue and jurisdiction exist. However, we further con-

clude that in the exercise of such inherent authority it is

appropriate, as in the related § 1631 context, to consider

whether the "interest of justice" mandates transfer. See

Moreno-Bravo v. Gonzales, 463 F.3d at 263. Here, we con-

clude that it would not be in the "interest of justice" to transfer

this case to the Eleventh Circuit for several reasons.

First, Sorcia’s confusion regarding where the proceedings

were completed is understandable. After the proceedings

began in Atlanta, Sorcia moved to change venue to Charlotte.

The IJ denied the motion but later stated

as you know, we’re opening a court in Charlotte on

November the 4th. Given that we’ve already gotten

into this, I’m going to keep this on my docket. I will

leave it up to you whether you wish to appear in

Court or whether you want to appear in Charlotte via

televideo.

10 SORCIA v. HOLDER

Notice was sent to Sorcia’s counsel indicating that a hearing

would take place on February 4, 2009, in Atlanta. On Decem-

ber 15, 2008, a letter was sent to Sorcia’s counsel indicating

that "the location of the hearing has been changed" to Char-

lotte. Sorcia’s counsel contacted the IJ in Atlanta, mentioning

the change of location letter and stating that he preferred "to

be present in Atlanta with my client and his family instead of

Charlotte." Sorcia’s counsel thus filed a second motion for

change of venue with the Charlotte Court. On January 12,

2009, the Atlanta Immigration Court received this second

change of venue motion and rejected it. On February 2, 2009,

the IJ in Atlanta issued an order stating "Counsel and respon-

dent may appear in Atlanta. DHS may appear either in person

or via televideo from Charlotte."

The February 4, 2009, hearing—the final hearing on the

merits—was conducted in Atlanta, with the government par-

ticipating via videoconference from Charlotte. Indeed, the IJ

stated "the Court [is] sitting in Atlanta." Yet, the transcript

heading for that hearing indicated the "place" as Charlotte,

North Carolina. Even the heading of the "Order of the Immi-

gration Judge" indicated the location of the Immigration

Court in Charlotte—though that conflicted with the statement

in the order explaining "if the proceedings should be appealed

. . . the oral decision will become the official opinion in this

case." The oral decision was undisputedly issued from

Atlanta. After viewing these facts as a composite, we con-

clude that Atlanta is the location where the proceedings were

completed. See Ramos v. Ashcroft, 371 F.3d 948, 949 (7th

Cir. 2004) (holding that even when teleconferencing takes

place, immigration proceedings are completed "where the

court is located and the order is issued"). Nevertheless, under

these convoluted circumstances, it is understandable that Sor-

cia was confused as to the place of completion.

Further, because the matter has been thoroughly briefed

and orally argued before this Court, we are reluctant to force

the parties to relitigate in the Eleventh Circuit. Cf. Bonho-

SORCIA v. HOLDER 11

metre, 414 F.3d at 446 n.5 ("[G]iven that this case has been

thoroughly briefed and argued before us, and given that Mr.

Bonhometre has waited a long time for the resolution of his

claims, we believe it would be a manifest injustice to now

transfer his case to another court for duplicative proceed-

ings."); accord Moreno-Bravo, 463 F.3d at 263. Moreover,

"‘whether or not the suit has any possible merit bears signifi-

cantly on whether the court should transfer,’ and if it does not,

the court should not waste the time of another court by trans-

ferring the matter." Id. at 263 (quoting Phillips v. Seiter, 173

F.3d 609, 610-11 (7th Cir. 1999)). The weakness of Sorcia’s

argument on the merits, discussed below, further counsels

against transferring his petition to the Eleventh Circuit.

Finally, we are unpersuaded by the government’s assertion

that litigating this case in the Eleventh Circuit would be more

convenient. The government’s primary argument is that the

BIA cited an Eleventh Circuit case for a proposition in its

decision. Specifically, the BIA cited Naijar v. Ashcroft, 257

F.3d 1262 (11th Cir. 2001), to support the statement that a

motion to remand must include a demonstration of prima

facie eligibility for the relief sought. The government over-

looks the fact that a federal regulation, 8 C.F.R.

§ 1003.2(c)(1), and a decision by the Supreme Court of the

United States, INS v. Abudu, 495 U.S. 94, 104 (1988), were

cited by the BIA in support of the same proposition. Further,

that same proposition is supported by Fourth Circuit case law.

See Hussain v. Gonzales, 477 F.3d 153, 157 (4th Cir. 2007).

We therefore find the government’s argument regarding con-

venience unavailing.

In sum, we deny the government’s motion to dismiss or

transfer this matter on the basis of improper venue.5 We turn

now to the merits of Sorcia’s appeal.

5

The government warns that failing to transfer this case would render

the venue statute nugatory and invite forum shopping. This argument

overlooks the case-specific factors, and particularly Sorcia’s justifiable

confusion regarding where these proceedings were completed, underpin-

ning our decision to keep this case in this Circuit. Nothing in our approach

should be construed as an indication to future petitioners whose cases

were completed elsewhere that we will exercise our discretion to hear their

cases.

12 SORCIA v. HOLDER

III.

A.

Sorcia first argues that the IJ "did not properly weigh [Sor-

cia’s] favorable and adverse equities" before denying the

requested cancellation of removal. Brief of Petitioner at 10.

The government argues that we do not have jurisdiction to

review this discretionary decision. We agree.

The government correctly points to a statute stating that:

Notwithstanding any other provision of law (statu-

tory or nonstatutory), including section 2241 of Title

28, or any other habeas corpus provision, and sec-

tions 1361 and 1651 of such title, and except as pro-

vided in subparagraph (D), and regardless of whether

the judgment, decision, or action is made in removal

proceedings, no court shall have jurisdiction to

review—

(i) any judgment regarding the granting of

relief under section . . . 1229b . . . of this

title.

8 U.S.C. § 1252(a)(2)(B). Subparagraph (D) clarifies that

"[n]othing in subparagraph (B) . . . shall be construed as pre-

cluding review of constitutional claims or questions of law

raised upon a petition for review filed with an appropriate

court of appeals in accordance with this section." 8 U.S.C.

§ 1252(a)(2)(D). Since cancellation of removal is placed in

the IJ’s discretion under 8 U.S.C. § 1229b, this Court has

jurisdiction over Sorcia’s appeal only if it concerns "constitu-

tional claims or questions of law." Id.; see also Jean v. Gon-

zales, 435 F.3d 475, 479-80 (4th Cir. 2006) (holding that the

court has no jurisdiction over any aspects of denial of relief

under § 1229b except constitutional claims or questions of

law).

SORCIA v. HOLDER 13

Sorcia does not argue that his appeal presents constitutional

claims. Nor, despite his contention to the contrary, does he

raise a question of law. Instead, throughout his brief, Sorcia

contends that the BIA should have given more weight to the

positive factors and less weight to the negative factors affect-

ing the exercise of the IJ’s discretion. For instance, Sorcia

argues that "[t]he IJ misapplied the law in failing to give the

outstanding equity of Petitioner’s length of residence in the

United States the appropriate weight compared to the rela-

tively minor factors." Brief of Petitioner at 6-7. Sorcia also

maintains that the IJ gave insufficient weight to Sorcia’s fam-

ily ties and steady employment.

However, a challenge to the weight attributed to certain

factors relevant to immigration determinations does not pre-

sent a question of law. Higuit v. Gonzales, 433 F.3d 417, 419-

20 (4th Cir. 2006). In Higuit, the petitioner challenged an IJ’s

denial of adjustment of his alien status, another form of dis-

cretionary relief addressed in 8 U.S.C. § 1252(a)(2)(B). Id. at

419. Petitioner argued "that he ha[d] raised a question of law

because the IJ determined that the persecution carried out in

the Philippines outweighed his commendable conduct in the

United States." Id. at 420. On appeal, we concluded that we

lacked jurisdiction, stating,

[t]his does not present a question of law. In making

the discretionary adjustment of status determination,

the IJ balanced Higuit’s positive and negative attri-

butes and did not rule in Higuit’s favor. . . . Were

Higuit correct that he has presented a question of

law, almost every decision denying discretionary

relief would henceforth be subject to judicial review.

We are not free to convert every immigration case

into a question of law and thereby undermine Con-

gress’s decision to grant limited jurisdiction over

matters committed in the first instance to the sound

discretion of the Executive.

14 SORCIA v. HOLDER

Id. at 420. In Jean, we considered perhaps a more closely

analogous decision by the BIA: refusal to grant a waiver of

inadmissibility. Id., 435 F.3d at 480-81. The court noted

Jean argues only that the immigration judge drew the

wrong factual conclusions from the evidence and

then determined these conclusions outweighed any

factors supporting a favorable exercise of discretion.

In turn, Jean contends the BIA perpetuated this error

by adopting the immigration judge’s inaccurate view

of the evidence. These are discretionary decisions,

however, that we have no jurisdiction to review.

Id. at 480. Here, as in Higuit and Jean, because Sorcia chal-

lenges only the weight given to certain factors by the IJ, we

conclude that we lack jurisdiction to review this assignment

of error.

Nonetheless, Sorcia further attempts to cast these chal-

lenges as questions of law by saying that the BIA was acting

contrary to its precedent. He contends that "where cases have

the same or similar facts as precedent cases, it follows that the

BIA should apply the same standards." Brief of Petitioner at

18. In support of his position, Sorcia cites Hernandez v. Ash-

croft, 345 F.3d 824 (9th Cir. 2003). In that case, the Ninth

Circuit held that where previous cases stated that the nonvia-

bility of a marriage was not a basis for rejecting a petition, the

BIA’s decision to rule on that basis was contrary to law, not

a discretionary determination. Id. at 847.

Hernandez is distinguishable from the case before us. Here,

Sorcia’s argument is not that the BIA considered improper

factors, but that it gave the improper amount of weight to the

proper factors. For the reasons explained above, we lack juris-

diction to consider that question. Cf. Argueta v. Holder, 617

F.3d 109, 112 (2d Cir. 2010) ("[A]ll but one of Argueta’s

claims lie beyond our jurisdiction because they are directed to

SORCIA v. HOLDER 15

the manner in which the IJ balanced the equities in denying

his application for discretionary relief . . . .").

Sorcia also argues that the BIA erred as a matter of law

when it considered the charge of committing a lewd act

against a minor. But the BIA expressly stated, "we agree with

respondent that little weight should be afforded to his arrest

for lewd conduct, as the case was not prosecuted and the

police report entered into evidence was uncorroborated . . . ."

We note that the BIA cited the same case in its decision, Mat-

ter of Arreguin, 21 I. & N. Dec. 38 (BIA 1995), that Sorcia

cites to argue that the scope of the BIA’s inquiry was

improper.

Moreover, Arreguin did not indicate that it was per se

improper to consider an arrest report. See id. Rather, the BIA

there stated that "we are hesitant to give substantial weight to

an arrest report, absent a conviction or corroborating evidence

of the allegations contained therein." Id. at 42. Therefore,

insofar as the BIA declined to give substantial weight to Sor-

cia’s charge, it was following, rather than contradicting, pre-

cedent.

In sum, Sorcia asserts no constitutional claims or questions

of law regarding the denial of his petition for cancellation of

removal. As such, we lack jurisdiction to rule on this issue.

B.

Sorcia also challenges the denial of his motion to remand.6

6

The BIA can remand when an alien seeks reconsideration of a decision

or when an alien seeks to have the proceedings reopened. "Although these

motions are often treated interchangeably, a request for reconsideration is

based upon ‘errors of fact or law in the prior Board decision,’ 8 C.F.R.

§ 1003.2(b)(1), whereas a request to reopen proceedings results from

changed circumstances and specifically contemplates that an alien will do

so ‘for the purpose of submitting an application for relief,’ 8 C.F.R.

16 SORCIA v. HOLDER

The authority to reopen an immigration case derives from 8

C.F.R. § 1003.2 rather than any of the provisions enumerated

in the gatekeeping clause of 8 U.S.C. § 1252(a)(2)(B). How-

ever, we have previously stated that the jurisdictional bar of

8 U.S.C. § 1252(a)(2)(B) applies where "the basis for the dis-

cretionary decision [to deny a motion to remand] addresses

the merits of an enumerated provision." Obioha, 431 F.3d at

406. In contrast, if the decision on the motion to remand is

based on a procedural failure or a determination that the peti-

tioner is statutorily ineligible for relief, we have jurisdiction

to review the matter. Id. at 406-07.

To determine whether we have jurisdiction to review the

BIA’s denial of Sorcia’s motion to remand, we must consider

the BIA’s basis for the denial. The BIA stated:

While the evidence submitted establishes an alter-

nate avenue for the respondent to obtain relief, the

approval of the visa petition does not change the fact

that he does not merit a favorable exercise of discre-

tion. Accordingly, for the same reasons that he was

denied cancellation [of removal], the respondent

would be unlikely to prevail on an adjustment appli-

cation. We will therefore deny the motion.

(J.A. 5.) Here, "because the BIA made a discretionary deci-

sion on the merits of an enumerated provision, the fact that it

§ 1003.2(c)(1)." Obioha, 431 F.3d at 408. Sorcia bases his motion on the

fact that he had filed for an immigrant visa (specifically an immigrant rela-

tive visa supported by his daughter, a U.S. citizen). In other words, citing

changed circumstances, Sorcia sought a remand to allow for adjustment of

his immigration status, a form of "relief." As such, Sorcia’s motion was

one to remand for the reopening of his case. See 8 C.F.R. § 1003.2. ("A

motion to reopen a decision rendered by an Immigration Judge . . . that

is filed while an appeal is pending before the Board, may be deemed a

motion to remand for further proceedings before the Immigration Judge

. . . from whose decision the appeal was taken. Such motion may be con-

solidated with, and considered by the Board in connection with, the appeal

to the Board.").

SORCIA v. HOLDER 17

did so through denying a motion to reopen did not save appel-

late jurisdiction." Id. at 407. Therefore, we conclude that we

lack jurisdiction to review the BIA’s denial of Sorcia’s

motion to remand.

IV.

In sum, because Sorcia presents no issues on appeal over

which we possess subject matter jurisdiction, his appeal must

be

DISMISSED.