Torres Peralta v. Sessions ( 2017 )

15-706
Torres Peralta v. Sessions
BIA
A096 579 450
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 TO A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 22nd day of February, two thousand seventeen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 GERARD E. LYNCH,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 RAFAEL ANTONIO TORRES PERALTA,
14 Petitioner,
15
16 v. 15-706
17 NAC
18 JEFF SESSIONS, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Lawrence Spivak, Jamaica, NY.
24
25 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
26 Assistant Attorney General; John S.
27 Hogan, Assistant Director; Samuel P.
28 Go, Senior Litigation Counsel,
29 Office of Immigration Litigation,
 Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Jeff Sessions is
automatically substituted for former Attorney General Loretta E. Lynch as Respondent.
1 United States Department of Justice,
2 Washington, DC.
3
4 UPON DUE CONSIDERATION of this petition for review of a
5 Board of Immigration Appeals (“BIA”) decision, it is hereby
6 ORDERED, ADJUDGED, AND DECREED that the petition for review is
7 DENIED.
8 Petitioner Rafael Antonio Torres Peralta, a native and
9 citizen of the Dominican Republic, seeks review of a February
10 4, 2015, decision of the BIA denying his motion to reconsider.
11 In re Rafael Antonio Torres Peralta, No. A096 579 450 (B.I.A.
12 Feb. 4, 2015). We assume the parties’ familiarity with the
13 underlying facts and procedural history in this case.
14 As an initial matter, because Torres Peralta has timely
15 petitioned for review of the denial of a motion to reconsider,
16 but not from the underlying decision for which reconsideration
17 was sought, we review only the denial of his motion to
18 reconsider. See Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d
19 83, 89-90 (2d Cir. 2001). We have reviewed the denial of his
20 motion to reconsider for abuse of discretion. See Jian Hui Shao
21 v. Mukasey, 546 F.3d 138, 173 (2d Cir. 2008). “A motion to
22 reconsider must specify errors of fact or law in the challenged
23 BIA decision and must be supported by pertinent authority.”
24 Id.; see 8 U.S.C. § 1229a(c)(6)(C); 8 C.F.R. § 1003.2(b)(1).
2
1 Torres Peralta sought reconsideration of the BIA’s
2 decision that found him removable for attempting to gain
3 immigration benefits by entering into a fraudulent marriage and
4 that denied cancellation of removal based on his failure to
5 establish the requisite good moral character. The BIA did not
6 abuse its discretion in concluding that Torres Peralta failed
7 to identify any error of law or fact in its prior decision.
8 Contrary to Torres Peralta’s contention, the agency did not
9 ignore material evidence or deprive him an opportunity to
10 explain inconsistencies in the record regarding the bona fides
11 of his marriage. And thus he did not demonstrate an error of
12 law to this extent.
13 Moreover, as the BIA noted, Torres Peralta was not prima
14 facie eligible to adjust status based on a visa petition filed
15 on his behalf by his U.S. citizen son because the agency was
16 barred by statute from granting that petition. See 8 U.S.C.
17 §§ 1154(c) (barring approval of visa petitions on behalf of
18 aliens who the agency has found previously engaged in marriage
19 fraud for immigration benefits), 1255(a) (requiring an
20 immediately available immigrant visa for adjustment of status).
21 And, finally, because Torres Peralta admitted that he made a
22 false statement to immigration officials regarding whether he
23 was living with his wife, he did not demonstrate an error of
3
1 law or fact in the agency’s determination that he did not
2 demonstrate the requisite good moral character for cancellation
3 of removal. See 8 U.S.C. § 1229b(b)(1)(B); see also Jian Hui
4 Shao, 546 F.3d at 173.
5 For the foregoing reasons, the petition for review is
6 DENIED. Any pending request for oral argument in this petition
7 is DENIED in accordance with Federal Rule of Appellate Procedure
8 34(a)(2), and Second Circuit Local Rule 34.1(b).
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
4