Espinal v. Sessions ( 2018 )

17-2678
Espinal v. Sessions
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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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
29th day of August, two thousand eighteen.
PRESENT:
BARRINGTON D. PARKER,
PETER W. HALL,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
_____________________________________
RAFAEL ERNESTO ESPINAL,
AKA RAFAEL E. BETANCOURT,
Petitioner,
v. No. 17-2678-ag
JEFFERSON B. SESSIONS III,
UNITED STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: JM Mariotti, New York, N.Y.
FOR RESPONDENT: Brendan P. Hogan, Trial Attorney,
Office of Immigration Litigation,
Civil Division, Chad A. Readler,
Assistant Attorney General, Song
Park, Senior Litigation Counsel, for
Jefferson B. Sessions III, United
States Attorney General, Washington,
D.C.
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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 DISMISSED.
Petitioner Rafael Ernesto Espinal, a native and citizen of
the Dominican Republic, seeks review of a July 26, 2017 decision
of the BIA dismissing Espinal’s appeal of an October 3, 2016,
decision of an Immigration Judge (“IJ”) ordering his removal and
denying his applications for relief from removal. In re Rafael
Ernesto Espinal, No. A 073 136 517 (B.I.A. July 26, 2017), aff’g
No. A 073 136 517 (Immig. Ct. N.Y. City Oct. 3, 2016). We assume
the parties’ familiarity with the underlying facts and procedural
history in this case.
Our jurisdiction to review Espinal’s removal order is limited
to “constitutional claims or questions of law,” which we review de
novo. 8 U.S.C. § 1252(a)(2)(D); see id. § 1252(a)(2)(B), (C);
Pierre v. Holder, 588 F.3d 767, 772 (2d Cir. 2009). To invoke our
jurisdiction, such claims must be “colorable.” Barco-Sandoval v.
Gonzales, 516 F.3d 35, 40 (2d Cir. 2008) (“[W]e lack jurisdiction
to review any legal argument that is so insubstantial and frivolous
as to be inadequate to invoke federal-question jurisdiction.”
(citation omitted)). Because the BIA’s decision “closely tracks”
the IJ’s decision, we review both decisions together. See Richmond
v. Holder, 714 F.3d 725, 728 (2d Cir. 2013) (quoting Lecaj v.
Holder, 616 F.3d 111, 114 (2d Cir. 2010)).
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As an initial matter, Espinal argues that the agency erred in
sustaining the fraud-or-willful-misrepresentation ground of
removability because the record did not reflect that the former
Immigration and Naturalization Service rescinded his lawful
permanent resident (“LPR”) status and because the Government did
not prove by clear and convincing evidence that he had
intentionally misrepresented a material fact during the
adjustment-of-status process. In essence, he argues that he did
not need a waiver pursuant to 8 U.S.C. § 1227(a)(1)(H) because,
absent proof of fraud, he never lost his LPR status and therefore
did not need a waiver to retain it. Regardless of the disposition
of that argument, Espinal conceded removability for aggravated
felony and controlled substance offenses. Accordingly, he is
independently removable on those grounds and requires a waiver
under former § 1182(c). See 8 U.S.C. §§ 1255(a), 1182(c) (repealed
1996).
Both requested waivers, under §§ 1182(a)(2)(c) (repealed
1996) and 1227(a)(1)(H), are discretionary and involve a two-part
analysis. First, the agency assesses an applicant’s statutory
eligibility for the waiver; second, the agency determines whether
to exercise discretion in the applicant’s favor. See Ahmed v.
Holder, 624 F.3d 150, 153-54 (2d Cir. 2010) (per curiam); Avendano-
Espejo v. Dep’t of Homeland Sec., 448 F.3d 503, 505 (2d Cir. 2006)
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(per curiam). Unlike the question of eligibility, the exercise of
discretion is not reviewable absent an error of law, such as when
the agency overlooks facts or mischaracterizes evidence. See
Mendez v. Holder, 566 F.3d 316, 323 (2d Cir. 2009); see also id.
at 320 (noting that “we lack jurisdiction at the second stage to
review the Attorney General’s decision to grant or deny relief,
made entirely in his discretion”). Because the agency found or
assumed statutory eligibility but concluded that Espinal did not
merit relief as a matter of discretion, we lack jurisdiction to
consider further Espinal’s petition absent a constitutional claim
or question of law regarding the agency’s exercise of discretion.
Espinal argues that the IJ ignored evidence of the equities
that weigh positively in his favor, particularly his family ties
and gainful employment. The agency commits a legal error if it
overlooks facts or mischaracterizes evidence, id. at 323, but there
is no such error here. The IJ considered the affidavits from
Espinal’s family, employer, and friends; tax payments; financial
and employment records; and children’s medical documents. Although
Espinal contends that the IJ did not completely and fairly balance
those equities against the negative factors, the IJ’s weighing and
balancing of evidence are precisely the determinations we lack
jurisdiction to review. See 8 U.S.C. § 1252(a)(2)(B)(i); Saloum v.
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U.S. Citizenship & Immigration Servs., 437 F.3d 238, 244 (2d Cir.
2006) (per curiam).
Finally, Espinal’s argument that the IJ reached “speculative
conclusions” about “uncorroborated allegations” of domestic
violence and child abuse “found in medical records dating back to
2009” is a mischaracterization of the record in this case. Espinal
submitted the medical evaluation of his son, which identified a
history of abuse by Espinal. Moreover, the BIA determined that,
even absent this factor, Espinal’s “protracted criminal history”
supported the IJ’s discretionary denial.
For the foregoing reasons, the petition for review is
DISMISSED.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
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