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Click here for the full text of this decision FACTS: Pedro Delgado-Reynua became a lawful permanent resident of the United States on Dec. 12, 1990, through amnesty provisions. Three years later, he pleaded guilty to a charge of indecency with a child. Delgado-Reynua received a deferred adjudication of guilt and six years’ probation. In July 1999, the Immigration and Naturalization Service charged Delgado-Reynua as subject to removal as an alien convicted of an aggravated felony. At a removal hearing, the immigration judge determined Delgado-Reynua was deportable and ordered him removed. Delgado-Reynua requested a waiver of removability under the now-repealed �212(c) of the Immigration and Nationality Act (“INA”), formerly codified at 8 U.S.C. �1182(c). The IJ determined that a �212(c) waiver was not available. Delgado-Reynua appealed to the Board of Immigration Appeals. During the pendency of that appeal, the Supreme Court issued INS v. St. Cyr, 533 U.S. 289 (2001). The BIA remanded Delgado-Reynua’s case so that the IJ could determine if he was entitled to �212(c) relief pursuant to St. Cyr. On Aug. 29, 2002, after a hearing, the same IJ who originally ordered Delgado-Reynua removed, granted Delgado-Reynua a �212(c) waiver of removability. The IJ’s order described the circumstances surrounding the underlying conviction. Delgado-Reynua repeatedly committed indecent acts with the eight-year-old granddaughter of his employer over a lengthy but disputed period of time, not less than one year and not greater than approximately three years. Based upon testimony at the hearing, the IJ’s order noted Delgado-Reynua’s remorse, his completion of therapy mandated as a result of his conviction, the close relationship of DelgadoReynua’s family, and the length of time Delgado-Reynua had resided in the United States. The IJ weighed these equities and hardships of removal against the seriousness of the underlying criminal offense and granted Delgado-Reynua discretionary relief from removal under �212(c), citing the remoteness in time of the crime, a lack of criminal record since the crime, and Delgado-Reynua’s remorse and rehabilitation. The Department of Homeland Security, formerly the INS, appealed to the BIA. On discretionary review of the IJ’s factual findings, the BIA affirmed the IJ’s use of a balancing test to determine waiver, but explained that although the balancing test was necessary to a grant of �212(c) relief, the demonstration of positive factors (those weighing in favor of relief) did not compel the grant of such relief. Without deciding the issue, the BIA assumed that Delgado-Reynua demonstrated unusually positive equities supporting �212(c) relief and held that such relief had to be denied because Delgado-Reynua “did not meet his burden to establish that the equities presented outweigh the negative factors.” The BIA concluded that the IJ gave insufficient weight to the serious adverse factor in the case, that is, the conviction for indecency with a child, and the BIA noted additional, material negative factors: the young age of the victim and the extended period of the abuse. In light of the IJ’s failure to properly account for the factors in the record weighing against waiver, the BIA vacated the IJ’s order grating �212(c) waiver of removability and again ordered Delgado-Reynua removed to Mexico. Delgado-Reynua filed a petition for writ of habeas corpus in the Southern District of Texas, challenging the BIA’s order of removal and arguing that the BIA acted ultra vires its authority to vacate his �212(c) relief on the basis of the BIA’s improper reweighing of factors considered by the IJ without regard to the traditional “clearly erroneous” standard. Without providing the government an opportunity to respond, the district court entered an order granting the habeas petition, reversing the BIA’s order, and vacating the BIA’s order of removal. The government filed a Rule 59(e) motion before the district court, arguing that the BIA acted properly in reversing the IJ under discretionary powers granted to the BIA by 8 C.F.R. �1003.1(d)(3)(ii). Delgado-Reynua responded in opposition, arguing that the BIA’s decision was a reversal of the IJ on issues of law and fact and that the reversal arose out of the BIA’s improper de novo review. The district court denied the government’s Rule 59(e) motion on the grounds that the BIA may only reverse an IJ’s decision if the decision is clearly erroneous and that the BIA violated its own standards in reviewing the IJ’s order de novo. The government appealed the district court’s grant of habeas relief. HOLDING: Denied. Acting pursuant to the REAL ID Act and Rosales v. BICE, 426 F.3d 733 (5th Cir. 2005) (per curiam), cert. denied, 126 S.Ct. 1055, 163 L.Ed. 2d 882 (2006), the court vacates the district court’s exercise of habeas jurisdiction over Delgado-Reynua’s original habeas petition and converts Delgado-Reynua’s habeas petition into a petition for review of the removal order. The BIA’s order did not involve fact-finding, but instead was the discretionary exercise of its power to review and reverse the IJ’s grant of, rather than eligibility for, section 212(c) relief. The court dismisses for lack of jurisdiction Delgado-Reynua’s petition in so far as it challenges the BIA’s denial of section 212(c) discretionary relief from removal. The court joins the 8th U.S. Circuit Court of Appeals in concluding that where the BIA reverses an IJ’s grant of discretionary relief and gives effect to the IJ’s original order of removability, the BIA has merely eliminated “impediments to removal” and effected the original removal order. Such disposition does not offend the scope of the powers granted to the BIA by either Congress or the Attorney General. Accordingly, Delgado-Reynua’s legal challenge to the BIA’s authority to order removal is denied, the court concludes. OPINION: DeMoss, J.; Reavley, Jolly, and DeMoss, J.J.

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