Torres v. Holder , 473 F. App'x 32 ( 2012 )

10-3237-ag
Novoa v. Holder
BIA
A091 956 855
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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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 Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 3rd day of April, two thousand twelve.
PRESENT:
ROBERT A. KATZMANN,
REENA RAGGI,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
_______________________________________
ALEJANDRO NOVOA TORRES, AKA ALEJANDRO
NOVOA-TORRES,
Petitioner,
v. 10-3237-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
______________________________________
FOR PETITIONER: Jon E. Jessen, Stamford, CT.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Richard M. Evans, Assistant
Director; Nancy E. Friedman, Senior
Litigation Counsel, Office of
Immigration Litigation, Civil
Division, United States 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
is DENIED.
Petitioner Alejandro Novoa Torres, a native and citizen
of Mexico, seeks review of a July 12, 2010 order of the BIA
denying his motion for reconsideration. In re Alejandro
Novoa Torres, No. A091 956 855 (B.I.A. July 12, 2010). We
assume the parties’ familiarity with the underlying facts
and procedural history in this case.
We review the BIA’s denial of a motion for
reconsideration for abuse of discretion. See Jin Ming Liu
v. Gonzales, 439 F.3d 109, 111 (2d Cir. 2006). Our review
is limited to the BIA’s denial of the motion to reconsider,
and we are “precluded from passing on the merits of the
underlying exclusion proceedings.” Ke Zhen Zhao v. U.S.
Dep’t of Justice, 265 F.3d 83, 90 (2d Cir. 2001).
Novoa Torres was removable because of a controlled
substance conviction, which triggers the jurisdiction-
stripping provision of 8 U.S.C. § 1252(a)(2)(C). Similarly,
the agency’s decision to deny a waiver of inadmissibility
under former section 212(c) of the Immigration and
2
Nationality Act is a discretionary decision that we lack
jurisdiction to review. 8 U.S.C. § 1252(a)(2)(B)(ii); see
also Avendano-Espejo v. Dep’t of Homeland Sec., 448 F.3d
503, 505 (2d Cir. 2006). These limits on our jurisdiction
extend to our review of the BIA’s denial of reconsideration.
See Durant v. INS, 393 F.3d 113, 115-16 (2d Cir. 2004); Khan
v. Gonzales, 495 F.3d 31, 35-37 (2d Cir. 2007).
Accordingly, our jurisdiction is limited to “constitutional
claims” and “questions of law.” 8 U.S.C. § 1252(a)(2)(D).
The government argues that Novoa Torres does not
present a question of law because his motion for
reconsideration repeated arguments the BIA had previously
rejected. However, because Novoa Torres’s motion asserted
that the BIA had made specific errors in its prior decision,
we consider whether the BIA abused its discretion in
rejecting Novoa Torres’s arguments.
Novoa Torres’s motion for reconsideration argued that
the agency erred as a matter of law because the immigration
judge (“IJ”) applied an erroneous standard in deciding
whether to exercise discretion by considering whether Novoa
Torres had established “unusual or outstanding equities,”
rather than by considering the totality of the
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circumstances. The BIA found no error because it concluded
that the “unusual or outstanding equities” standard was
appropriate. We have jurisdiction to determine whether the
agency applied a legally erroneous standard. See Barco-
Sandoval v. Gonzales, 516 F.3d 35, 39 (2d Cir. 2008).
In considering whether to exercise its discretion to
grant a section 212(c) waiver of inadmissibility, an IJ must
“balanc[e] ... the social and humane considerations
presented in an alien’s favor against the adverse factors
evidencing his undesirability as a permanent resident.”
Matter of Edwards, 20 I. & N. Dec. 191, 195 (BIA 1990).
“[A]s the negative factors grow more serious, it becomes
incumbent upon the alien to introduce additional offsetting
favorable evidence, which in some cases may have to involve
unusual or outstanding equities.” Id. In Matter of
Buscemi, 19 I. & N. Dec. 628 (BIA 1988), the BIA stated that
“an alien who demonstrates unusual or outstanding equities,
as required, merely satisfies the threshold test for having
a favorable exercise of discretion considered in his case.”
Id. at 634. In Matter of Edwards, the BIA noted that its
statement in Matter of Buscemi could be “misleading, as it
might be read to imply that a full examination of an alien’s
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equities can somehow be pretermitted.” 20 I. & N. Dec. at
196 n. 3. To the contrary, the BIA said, “a proper
determination as to whether an alien has demonstrated
unusual or outstanding equities can only be made after a
complete review of the favorable factors in his case.” Id.
Here, although the agency used the “misleading”
language from Matter of Buscemi, the IJ applied the proper
standard from Matter of Edwards in reviewing and balancing
all of the relevant factors. Accordingly, we conclude that
the BIA did not abuse its discretion in denying
reconsideration based on its conclusion that the IJ did not
apply the wrong standard.1
Novoa Torres’s motion for reconsideration also argued
that the agency’s fact-finding was flawed as a matter of law
as the agency ignored the facts that his wife was pregnant
and that he had paid taxes since 1988.2 While the agency
1
Although we find no error in the standard applied,
we note that the BIA’s statement that Matter of Sotelo-
Sotelo, 23 I. & N. Dec. 201 (BIA 2001), did not apply to
Novoa Torres’s case because he sought a § 212(c) waiver
of inadmissibility rather than cancellation of removal is
belied by the language in Matter of Sotelo-Sotelo noting
that the standards are the same. See id. at 205.
2
Because our review is limited to the BIA’s denial
of reconsideration we consider only the factors
identified in both the motion for reconsideration and the
brief to this Court.
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may commit an error of law where it “totally overlook[s]”
facts important to a discretionary determination, we detect
no such error of law in this case. Mendez v. Holder, 566
F.3d 316, 322-23 (2d Cir. 2009). The IJ did not overlook
the fact that Novoa Torres’s wife was pregnant because no
evidence of her pregnancy was presented to the IJ. Further,
the IJ explicitly noted that Novoa Torres had paid taxes and
the IJ’s error in stating that Novoa Torres had filed tax
returns since 1998 when, in fact, he had filed them since
1988, was a minor error which did not constitute an error of
law. See Mendez, 566 F.3d at 323 (“[T]he agency does not
commit an ‘error of law’ every time an item of evidence . .
. is described with imperfect accuracy.”). Because the
appropriate standard was applied and the relevant factors
were considered, the BIA did not abuse its discretion in
rejecting Novoa Torres’s request for reconsideration.
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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