Kiranlioglu v. Lynch ( 2016 )

15-2340-ag
Kiranlioglu v. Lynch
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 30th day of August, two thousand sixteen.
PRESENT: JOHN M. WALKER, JR.,
JOSÉ A. CABRANES,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
ALI IHSAN KIRANLIOGLU,
Petitioner, 15-2340-ag
v.
LORETTA E. LYNCH, UNITED STATES ATTORNEY
GENERAL,
Respondent.
FOR PETITIONER: GLENN L. FORMICA (Elyssa N. Williams,
on the brief), Formica Williams, P.C., New
Haven, CT.
FOR RESPONDENT: DANIEL E. GOLDMAN, Senior Litigation
Counsel (Benjamin C. Mizer, Principal
Deputy Assistant Attorney General, Civil
Division; Carl McIntyre, Assistant
Director, Office of Immigration
Litigation; Kevin J. Conway, Trial
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Attorney, Office of Immigration
Litigation, Civil Division, on the brief), U.S
Department of Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a Board of Immigration
Appeals (“BIA”) decision, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that
the petition for review be and hereby is DISMISSED.
Petitioner Ali Ihasan Kiranlioglu (“Kiranlioglu”), a native and citizen of Turkey, seeks review
of a June 29, 2015 order of the BIA, affirming the March 4, 2014 decision of an Immigration Judge
(“IJ”) ordering his removal. In re Ali Ihsan Kiranlioglu, No. A078 395 951 (B.I.A. Jun. 29, 2015), aff’g
No. A078 395 951 (Immig. Ct. Hartford Mar. 4, 2014). We assume the parties’ familiarity with the
underlying facts, the procedural history of the case, and the issues on appeal.
Kiranlioglu challenges the denial of his petition to waive the joint-filing requirement of his
conditional permanent residence status. See 8 U.S.C. § 1186a. Kiranlioglu argues that the IJ
erroneously placed the burden of proof on him to establish a good-faith marriage, and that the IJ
erred in his application of the law by misevaluating the strength of Kiranlioglu’s testimony and by
overlooking and mischaracterizing other evidence. The Government responds that these arguments
are not subject to judicial review because Kiranlioglu did not raise them before the BIA and there is
no judicial review of an agency’s discretionary denial of a hardship waiver.
When, as here, the BIA affirms the IJ’s decision without opinion, the Court reviews the IJ’s
decision. See, e.g., Shunfu Li v. Mukasey, 529 F.3d 141, 146 (2d Cir. 2008). The Court “defer[s] to the
factual findings of the BIA and the IJ if they are supported by substantial evidence, and we review de
novo legal conclusions and the application of legal principles to undisputed facts.” Higgins v. Holder,
677 F.3d 97, 100 (2d Cir. 2012).
The Court may only review a final order of removal if “the alien has exhausted all
administrative remedies available to the alien as of right.” 8 U.S.C. § 1252(d)(1). “[W]e require
petitioner to raise issues to the BIA in order to preserve them for judicial review.” Foster v. INS, 376
F.3d 75, 78 (2d Cir. 2004) (internal quotation marks omitted) (emphasis in original). Although not
jurisdictional, issue exhaustion is mandatory. Zhong v. Gonzales, 480 F.3d 104, 121-22 (2d Cir. 2007).
While the Court may not consider “bases for relief that were not raised below” or “general issues
that were not raised below,” it is not barred from considering “specific, subsidiary legal arguments,
or arguments by extension, that were not made below.” Gill v. INS, 420 F.3d 82, 86 (2d Cir. 2005).
Kiranlioglu has only exhausted his adverse-credibility determination argument. His five-page
brief to the BIA, prepared by counsel, focuses only on the credibility of the testimony before the IJ.
The BIA brief was silent as to any error arising from an incorrectly applied burden of proof or the
weight of other evidence in the record. Accordingly, those issues have not been preserved for
judicial review.
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We lack jurisdiction to review Kiranlioglu’s remaining argument. The Secretary of Homeland
Security may, in his or her discretion, remove the conditions on an alien’s status if the alien
demonstrates that his qualifying marriage was entered in good faith but has since been terminated. 8
U.S.C. § 1186a(c)(4)(B). The Court generally lacks jurisdiction to review discretionary denials of
relief, including determinations that an alien is ineligible for a hardship waiver of the joint-filing
requirement because he did not marry in good faith. 8 U.S.C. § 1252(a)(2)(B)(ii); Contreras-Salinas v.
Holder, 585 F.3d 710, 713-14 (2d Cir. 2009). The Court, however, retains jurisdiction over
constitutional claims or questions of law. 8 U.S.C. § 1252(a)(2)(D). The substance of Kiranlioglu’s
adverse credibility determination argument goes to the IJ’s factual findings, not to a question of law.
We thus lack jurisdiction to review the IJ’s discretionary denial of Kiranlioglu’s waiver petition based
on Kiranlioglu’s remaining challenge.
CONCLUSION
We have reviewed all of the arguments raised by the petitioner on appeal and find them to
be without merit. For the foregoing reasons, the petition for review is DISMISSED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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