NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 18a0408n.06 Case No. 17-4162 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Aug 14, 2018 MIGUEL FERNANDEZ MORETA, ) DEBORAH S. HUNT, Clerk ) Petitioner, ) ) ON PETITION FOR REVIEW v. ) FROM THE UNITED STATES ) BOARD OF IMMIGRATION JEFFERSON B. SESSIONS, III, U.S. ) APPEALS Attorney General, ) ) Respondent. ) BEFORE: COOK, STRANCH, and NALBANDIAN, Circuit Judges. COOK, Circuit Judge. Miguel Fernandez Moreta, a native and citizen of the Dominican Republic, seeks reversal of the Board of Immigration Appeals’ (the “Board”) denial of his motions to reopen and to reconsider his application for cancellation of removal. For the following reasons, we deny his petition. I. Since immigrating to the United States as a lawful permanent resident in 2002, Fernandez has lived in Michigan near his parents and three siblings. But he hasn’t always conducted himself lawfully, having three times been convicted of possessing controlled substances. Following his last arrest, the Department of Homeland Security started removal proceedings against him. See 8 U.S.C. § 1227(a)(2)(B)(i). And though found eligible for removal, the Immigration Judge (“IJ”) nevertheless granted Fernandez a discretionary cancellation of removal, citing “social and humane considerations” for keeping Fernandez’s family together. Case No. 17-4162 Fernandez v. Sessions The Board saw it differently. After reweighing the equities of Fernandez’s case, it vacated the IJ’s grant of discretionary relief and ordered him removed. In its consideration, the Board acknowledged the length of Fernandez’s lawful residency and his extensive family ties to the United States. It nevertheless decided that his criminal record and history of drug abuse outweighed those considerations. It also denied Fernandez’s later motions for reconsideration and reopening. Those denials occasion this petition. II. We review the Board’s denial of either a motion to reconsider or to reopen for abuse of discretion, Vasquez Salazar v. Mukasey, 514 F.3d 643, 645 (6th Cir. 2008); Allabani v. Gonzales, 402 F.3d 668, 675 (6th Cir. 2005), looking for whether the Board “acts arbitrarily, irrationally or contrary to law.” Sswajje v. Ashcroft, 350 F.3d 528, 532 (6th Cir. 2003). A. Motion to Reconsider Fernandez first seeks review of the denial of his motion for reconsideration, alleging that the Board impermissibly made its own factual findings in denying him discretionary relief. See 8 C.F.R. § 1003.1(d)(3)(iv) (providing that beyond taking administrative notice of certain facts, the Board “will not engage in factfinding in the course of deciding appeals.”). When the Attorney General, acting through the Board, denies an alien’s application for cancellation of removal, we lack jurisdiction to review discretionary aspects of the decision. 8 U.S.C. § 1252(a)(2)(B); Aburto- Rocha v. Mukasey, 535 F.3d 500, 502 (6th Cir. 2008). We retain jurisdiction, however, to review 2 Case No. 17-4162 Fernandez v. Sessions the decision’s non-discretionary features, including “constitutional claims or questions of law.” 8 U.S.C. § 1252(a)(2)(D); Aburto-Rocha, 535 F.3d at 502. Although Fernandez contends that his appeal of these denials raises questions of law, we may assume that it does without ...
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