Alba Dinaj v. Attorney General United State

Filing

NOT PRECEDENTIAL OPINION Coram: AMBRO, FUENTES and GREENBERG, Circuit Judges. Total Pages: 4. Judge: AMBRO Authoring. [14-3779, 14-3780]

Case: 14-3779

Document: 003112053375

Page: 1

Date Filed: 08/24/2015

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
Nos. 14-3779 & 14-3780
________________
ALBA QEMAL DINAJ,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
________________
On Petition for Review of a Final Order
of the Board of Immigration Appeals
Immigration Judge: Honorable Andrew Arthur
(No. A047-189-009)
________________
Submitted Under Third Circuit LAR 34.1(a)
June 18, 2015
Before: AMBRO, FUENTES, and GREENBERG, Circuit Judges
(Opinion filed: August 24, 2015)
________________
OPINION*
________________
AMBRO, Circuit Judge

*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

Case: 14-3779

Document: 003112053375

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Date Filed: 08/24/2015

The Department of Homeland Security (“DHS”) seeks the removal from the
United States of Petitioner Alba Qemal Dinaj, a native and citizen of Albania. DHS
alleged that Dinaj was removable under 8 U.S.C. § 1227(a)(2)(A)(iii) as an alien
convicted of an aggravated felony and 8 U.S.C. § 1227(a)(2)(B)(ii) as “a drug abuser or
addict.” A few months later the agency added that she was also removable under 8
U.S.C. § 1227(a)(2)(A)(ii) as an alien “who is convicted of two or more crimes involving
moral turpitude, not arising out of a single scheme of criminal misconduct.” The
Immigration Judge (“IJ”) agreed in part, concluding that Dinaj was removable because
she committed two crimes of moral turpitude: theft and armed robbery. In response, she
applied for cancellation of removal, arguing that her husband and two children would
suffer severe hardship were she deported. Dinaj also maintained that she committed the
above-mentioned crimes out of desperation.
During the hearing on her request, DHS informed the IJ that Dinaj had been less
than forthright about her prior drug use. It took several exchanges for Dinaj ultimately to
admit that she suffered from a heroin addiction and was receiving treatment. In light of
her admission, the IJ ordered that, in addition to being removable for having committed
multiple crimes of moral turpitude, Dinaj was removable as “a drug abuser or addict,” 8
U.S.C. § 1227(a)(2)(B)(ii). It also concluded that, notwithstanding her statutory
eligibility for cancellation relief, she didn’t merit a favorable exercise of discretion. Her
criminal history and lack of truthfulness, the IJ said, outweighed the factors favoring
cancellation—namely, Dinaj’s familial ties to the United States and her personal growth.
J.A. 95. Regarding the lies she told, the IJ noted that Dinaj on two occasions had denied
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Case: 14-3779

Document: 003112053375

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Date Filed: 08/24/2015

her drug use in the United States and fabricated a story to explain her prescribed use of
Suboxone (a pain medication).
Three days after receiving the IJ’s decision, Dinaj filed a motion to reopen (to
introduce previously unavailable evidence) and a motion to reconsider. The IJ denied the
former because all of the purported new evidence was available at the time of her
previous hearing. It denied the motion to reconsider because Dinaj failed to persuade that
the IJ’s adverse credibility determination was flawed. She appealed to the Board of
Immigration Appeals (“BIA”) the IJ’s denial of the (1) request for cancellation of
removal, (2) motion to reopen, and (3) motion to reconsider. As to the cancellation of
removal request, the BIA held that the IJ appropriately exercised its discretion in denying
the request. It also agreed with the IJ that Dinaj’s motion to reopen was without merit
because the evidence she introduced was previously available and, in any event, wasn’t
material. The BIA came to the same conclusion regarding the motion to reconsider,
holding that Dinaj failed to identify any legal or factual error in the IJ’s reasoning. She
petitions us for review, challenging the BIA’s affirmance of the IJ’s ruling that she was
removable as a drug addict or drug abuser, its denial of her request for cancellation of
removal, and its denial of her motion to reopen and motion to reconsider. We deny the
consolidated petitions in all respects.
First, we find no fault with the BIA’s failure to reach whether Dinaj was
removable for her drug issues, as she was also removable for having been twice
convicted of a crime of moral turpitude, and Dinaj makes no argument to the contrary.
Second, we discern no factual or legal error in the IJ’s decision to deny Dinaj’s
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Case: 14-3779

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Date Filed: 08/24/2015

cancellation application (nor the BIA’s in upholding it). Dinaj’s argument that the IJ
failed to consider certain favorable factors under In re Sotelo, 23 I & N Dec. 201 (BIA
2001), is wide of the mark, as the IJ and Board identified all relevant circumstances that
weighed in favor of cancelling removal, though both decided that the bad outweighed the
good. That we may have judged those factors differently is irrelevant. See Jarbough v.
Att’y Gen., 483 F.3d 184, 189 (3d Cir. 2007). Finally, we reject Dinaj’s quarrel with the
IJ’s denial of her motion to reopen because she has failed to identify a legal or
constitutional error regarding that decision.
For all of these reasons, we deny the petitions for review.

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