Mesura v. Holder , 563 F. App'x 34 ( 2014 )

13-1498-ag
Mesura v. Holder
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order
filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
Procedure 32.1 and this court’s Local Rule 32.1.1. When citing a summary order in a
document filed with this court, a party must cite either the Federal Appendix or an
electronic database (with the notation “summary order”). A party citing a summary order
must serve a copy of it on any party not represented by counsel.
At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 18th day of April, two thousand fourteen.
PRESENT:
GUIDO CALABRESI,
JOSÉ A. CABRANES,
DEBRA ANN LIVINGSTON,
Circuit Judges.
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JONATHAN MESURA,
Petitioner,
-v.- No. 13-1498-ag
ERIC H. HOLDER, JR., UNITED STATES ATTORNEY
GENERAL,
Respondent.
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FOR PETITIONER: JUSTIN CONLON, Hartford, CT.
FOR DEFENDANTS-APPELLEES: KEITH MCMANUS, Office of Immigration
Litigation (Song E. Park, Senior Litigation
Counsel; Matt A. Crapo, Attorney, on the brief),
for Stuart F. Delery, Assistant Attorney
General, United States Department of Justice,
Washington, D.C.
1
Petition for review of a Board of Immigration Appeals decision, entered March 25, 2013.
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the petition for review is DENIED.
Jonathan Mesura, a native and citizen of Mexico, seeks review of a March 25, 2013, order of
the BIA affirming the October 23, 2012, decision of an Immigration Judge (“IJ”), finding him
removable and ineligible for cancellation of removal. In re Jonathan Mesura, No. A205 497 280 (B.I.A.
Mar. 25, 2013), aff ’g No. A205 497 280 (Immig. Ct. Hartford, Oct. 23, 2012). We assume the parties’
familiarity with the underlying facts and procedural history in this case.
In order for an alien who is not a lawful permanent resident to demonstrate eligibility for
cancellation of removal, he must show, inter alia, that he has been a person of good moral character.
8 U.S.C. § 1229b(b)(1)(B). In order to establish “good moral character,” the applicant must show
that he has not committed any of the offenses listed in 8 U.S.C. § 1101(f) which would preclude a
finding of good moral character. The enumerated offenses in that section are followed by a “catch-
all” provision, stating that “[t]he fact that any person is not within any of the foregoing classes shall
not preclude a finding that for other reasons such person is or was not of good moral character.” 8
U.S.C. § 1101(f). The agency found that Mesura had not established the requisite good moral
character pursuant to the catch-all provision.
Whether we have jurisdiction to review a determination that an applicant lacks good moral
character pursuant to the catch-all provision is an open question in our Circuit. See Sumbundu v.
Holder, 602 F.3d 47, 55 & n.6 (2d Cir. 2010). We decline to reach this issue here and instead assume
jurisdiction, see Abimbola v. Ashcroft, 378 F.3d 173, 180 (2d Cir. 2004), and conclude that substantial
evidence supports the agency’s determination that Mesura did not establish good moral character, see
8 U.S.C. § 1252(b)(4)(B); Mei Fun Wong v. Holder, 633 F.3d 64, 68 (2d Cir. 2011).
The agency did not err in its factual findings regarding Mesura’s positive equities and the
negative factors. See 8 U.S.C. § 1252(b)(4)(B). Although Mesura may disagree with the IJ’s
description of his criminal record as “serious” because the six convictions were all misdemeanors
and did not result in any actual jail time, the IJ did not mischaracterize the record, as there is no
evidence that he erroneously thought, for instance, that the convictions were felonies or resulted in
jail time. Cf. Mendez v. Holder, 566 F.3d 316, 323 (2d Cir. 2009). Mesura also argues that the IJ
overlooked some positive equities because he did not note that Mesura paid his taxes. However, the
failure to explicitly note this factor as a positive equity does not qualify as an error. See id.; Xiao Ji
Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 337 n.17 (2d Cir. 2006) (“[W]e presume that an IJ has taken
into account all of the evidence before him, unless the record compellingly suggests otherwise.”).
Moreover, the IJ reasonably concluded that Mesura’s lengthy conviction record, and the seriousness
of his convictions for reckless endangerment and running from the police, outweighed his positive
2
equities, regardless of the fact that the convictions were misdemeanors and did not result in jail time.
See Castro v. Holder, 597 F.3d 93, 99 (2d Cir. 2010); Matter of T-, 1 I&N Dec. 158, 159 (BIA 1941).
While Mesura argues that the agency erred in its moral character determination because it
failed to apply precedent, prior cases regarding the catch-all moral character provision establish that
the agency should weigh the positive equities against the negative factors to determine whether the
applicant’s character is “up to the standard of the average citizen.” Matter of T-, 1 I&N Dec. at 159.
These cases do not establish a hard and fast rule of law, but instead reflect that moral character
should be determined on a case-by-case basis. See, e.g., Matter of Seda, 17 I&N Dec. 550, 554-55
(BIA 1980); Matter of Locicero, 11 I&N Dec. 805, 805 (BIA 1966); Matter of C-, 3 I&N Dec. 833 (BIA
1950); Matter of K-, 3 I&N Dec. 180, 181 (BIA 1949). Because the agency did not err in its factual
findings, and considered the relevant factors when weighing the equities, it adhered to precedent and
reasonably concluded that Mesura did not establish good moral character.
Because the agency’s determination that Mesura did not establish good moral character is
dispositive of his application for cancellation of removal, see 8 U.S.C. § 1229b(b)(1), we do not reach
Mesura’s challenge to the moral turpitude finding regarding his larceny conviction.1
For the foregoing reasons, we DENY the petition for review.
FOR THE COURT,
Catherine O’Hagan Wolfe, Clerk of Court
1 The IJ’s determination as to good moral character was not dependent on the finding that Mesura had been
convicted of a crime involving moral turpitude (“CIMT”). See Joint App’x 114–16. Accordingly, we need not consider
whether the IJ’s assessment of moral character would have changed if Mesura’s larceny conviction had been not
characterized as a CIMT.
3