Munoz v. Lynch , 667 F. App'x 22 ( 2016 )

15-738
Munoz 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 ASUMMARY ORDER@). A PARTY CITING 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 24th day of June, two thousand sixteen.
5
6 PRESENT: DENNIS JACOBS,
7 GUIDO CALABRESI,
8 REENA RAGGI,
9 Circuit Judges.
10
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12 OSVALDO OMAR MUNOZ, aka JUAN MANUEL
13 CAMPOS,
14 Petitioner,
15
16 -v.- 15-738
17
18 LORETTA E. LYNCH, UNITED STATES ATTORNEY
19 GENERAL,
20 Respondent.
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22
23 FOR PETITIONER: Mitchell C. Zwaik, Ronkonkoma, NY.
24
25 FOR RESPONDENT: D. Nicholas Harling (Benjamin C.
26 Mizer, Anthony P. Nicastro, on the
27 brief), Trial Attorney, Office of
1
1 Immigration Litigation, U.S.
2 Department of Justice,
3 Washington, D.C.
4
5 Petition for review of a decision of the Board of
6 Immigration Appeals.
7
8 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND
9 DECREED that the petition is DENIED.
10
11 Petitioner Osvaldo Omar Munoz, a native and citizen of
12 Argentina, seeks review of a February 10, 2015 decision of the
13 Board of Immigration Appeals (“BIA”) affirming a September 18,
14 2012 decision of an Immigration Judge (“IJ”) denying Munoz’s
15 application for cancellation of removal and ordering him
16 removed to Argentina. In re Osvaldo Omar Munoz, No. A091 208
17 376 (B.I.A. Feb. 10, 2015), aff’g No. A091 208 376 (Immig. Ct.
18 N.Y. City Sept. 18, 2012). The IJ concluded that Munoz’s
19 conviction for endangering the welfare of a child was not an
20 aggravated felony, so that he was eligible for cancellation of
21 removal, but the IJ denied cancellation of removal on the ground
22 that endangerment of a child under New York law is categorically
23 child abuse under 8 U.S.C. § 1227(a)(2)(E)(i). We assume the
24 parties’ familiarity with the underlying facts and procedural
25 history in this case.
26 We review the IJ’s and BIA’s opinions “for the sake of
27 completeness.” Wangchuck v. DHS, 448 F.3d 524, 528 (2d Cir.
28 2006). We review the IJ’s factual findings for substantial
29 evidence, and questions of law de novo. Yangin Weng v. Holder,
30 562 F.3d 510, 513 (2d Cir. 2009).
31 1. “[W]e require [p]etitioner to raise issues to the BIA
32 in order to preserve them for judicial review.” Foster v. INS,
33 376 F.3d 75, 78 (2d Cir. 2004) (internal quotation marks and
34 emphasis omitted). Failure to do so “constitutes a clear
35 jurisdictional bar.” Id. at 77.
36 Munoz failed to preserve the issue of whether he was
37 removable for a crime of child abuse under 8 U.S.C. §
38 1227(a)(2)(E)(i). Munoz’s arguments before the IJ focused
39 almost exclusively on whether he was convicted of an aggravated
2
1 felony, and only briefly mentioned the child abuse charge. His
2 brief to the BIA challenged only the discretionary denial of
3 cancellation of removal. And his notice of appeal stated only
4 that the evidence of his sexual contact with a minor was
5 insufficient to show that he committed “abuse of a child.” The
6 BIA deemed this brief reference to abuse of a child insufficient
7 to challenge the IJ’s conclusion that Munoz was removable, and
8 we agree. Accordingly, Munoz’s argument is unexhausted and we
9 lack jurisdiction to consider it.1
10 2. We generally lack jurisdiction to review discretionary
11 denial of cancellation of removal, but retain jurisdiction to
12 review constitutional claims or questions of law related to such
13 a denial. 8 U.S.C. § 1252(a)(2)(B)(i), (D). An error of law
14 includes “seriously mischaracteriz[ing]” or “totally
15 overlook[ing]” evidence in the record. Mendez v. Holder, 566
16 F.3d 316, 323 (2d Cir. 2009).
17 The IJ did not “seriously mischaracterize” or “totally
18 overlook” the evidence in the record. Munoz’s argument that
19 the IJ and BIA committed error reduces to him arguing over how
20 the IJ weighed the relevant factors to deny him cancellation
21 of removal. We lack jurisdiction to review the IJ’s balancing
22 of the equities for such claims. Xiao Ji Chen v. U.S. Dep’t
23 of Justice, 471 F.3d 315, 332 (2d Cir. 2006).
24 Accordingly, and finding no merit in Munoz’s other
25 arguments, we hereby DENY the petition for review.
26 FOR THE COURT:
27 CATHERINE O’HAGAN WOLFE, CLERK
1
We do not suggest that this argument would have had merit had it been made.
3