Almonte v. Garland ( 2023 )

21-6544
Almonte v. Garland
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 6th day of January, two thousand twenty-three.
PRESENT: Steven J. Menashi,
Eunice C. Lee,
Sarah A. L. Merriam,
Circuit Judges.
____________________________________________
CECILIO A. ALMONTE,
Petitioner,
v. No. 21-6544
MERRICK B. GARLAND,
UNITED STATES ATTORNEY GENERAL,
Respondent.
____________________________________________
For Petitioner: Gisela Chavez-Garcia, Law Offices of Gisela
Chavez-Garcia, New York, NY.
For Respondent: Brian M. Boynton, Principal Deputy
Assistant Attorney General; Shelley R.
Goad, Assistant Director, Office of
Immigration Litigation; Monica G. Antoun,
Trial Attorney, Office of Immigration
Litigation, U.S. Department of Justice,
Washington, DC.
Upon due consideration of this petition for review of a decision of the Board
of Immigration Appeals (“BIA”), it is hereby ORDERED, ADJUDGED, and
DECREED that the petition for review is DISMISSED in part and DENIED in
part.
Petitioner Cecilio A. Almonte, a citizen of the Dominican Republic, seeks
review of a September 8, 2021, decision of the BIA affirming a December 14, 2018,
decision of an Immigration Judge (“IJ”) denying his application for cancellation of
removal. In re Cecilio A. Almonte, No. A073 496 506 (B.I.A. Sept. 8, 2021), aff’g No.
A073 496 506 (Immig. Ct. N.Y. City Dec. 14, 2018). We assume the parties’
familiarity with the underlying facts and procedural history.
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We have reviewed the IJ’s decision as supplemented by the BIA. See Yan
Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The agency “may cancel removal
in the case of an alien who is inadmissible or deportable from the United States,”
such as Almonte, if the alien “(1) has been an alien lawfully admitted for
permanent residence for not less than 5 years, (2) has resided in the United States
continuously for 7 years after having been admitted in any status, and (3) has not
been convicted of an aggravated felony.” 8 U.S.C. § 1229b(a). “[C]ancellation of
removal is a two-step process. First, an alien must prove eligibility by showing
that he meets the statutory eligibility requirements. Second, assuming [the] alien
satisfies the statutory requirements, the Attorney General in his discretion decides
whether to grant or deny relief.” Mendez v. Holder, 566 F.3d 316, 319-20 (2d Cir.
2009) (quoting Rodriguez v. Gonzales, 451 F.3d 60, 62 (2d Cir. 2006)).
In assessing whether cancellation of removal is merited as a matter of
discretion, the agency reviews “the record as a whole” and “must balance the
adverse factors evidencing the alien’s undesirability as a permanent resident with
the social and humane considerations presented [on] his … behalf to determine
whether the granting of relief appears in the best interest of this country.” In re
C-V-T-, 22 I. & N. Dec. 7, 11 (B.I.A. 1998) (alteration omitted); see also Argueta v.
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Holder, 617 F.3d 109, 113 (2d Cir. 2010) (citing C-V-T- as the standard for
discretionary relief and noting the “agency’s broad discretion to decide whether
to grant cancellation of removal as a matter of grace”). “Among the factors deemed
adverse to an alien is the existence of a criminal record.” Argueta, 617 F.3d at 113(alterations omitted). “[T]he nature, recency, and seriousness of the prior
convictions is considered as part of the overall balancing test, as is proof of genuine
rehabilitation if a criminal record exists.” Id. (internal quotation marks omitted).
Here, the agency found Almonte statutorily eligible for relief but denied
cancellation as a matter of discretion. Our jurisdiction to review this denial of
cancellation as a matter of discretion is limited to colorable constitutional claims
or questions of law. See 8 U.S.C. § 1252(a)(2)(B)(i), (D); Patel v. Garland, 142 S. Ct.
1614, 1627 (2022); Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062, 1068 (2020); Barco-
Sandoval v. Gonzales, 516 F.3d 35, 36 (2d Cir. 2008). We have said that a question of
law may arise when the agency “totally overlooked” or “seriously
mischaracterized” material evidence, Mendez, 566 F.3d at 323, or considered a
prohibited factor, Argueta, 617 F.3d at 113. But “a petitioner cannot use the rhetoric
of a constitutional claim or question of law to disguise what is essentially a quarrel
about fact-finding or the exercise of discretion.” Barco-Sandoval, 516 F.3d at 39
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(internal quotation marks and alteration omitted); Xiao Ji Chen v. U.S. Dep’t of
Justice, 471 F.3d 315, 329 (2d Cir. 2006) (holding that we lack jurisdiction when,
“regardless of the rhetoric employed,” a petitioner “merely quarrels over the
correctness of the factual findings or justification for the discretionary choices”).
First, we conclude that Almonte’s arguments challenging the weight that
the agency afforded to evidence of his criminal acts raise only a question of fact,
which we lack jurisdiction to review. Almonte’s claim that the agency erred in
considering an arrest report is meritless. “[U]ncorroborated arrest reports are
admissible in the cancellation-of-removal discretionary analysis.” Marquez v.
Garland, 13 F.4th 108, 115 n.4 (2d Cir. 2021). Though a question of law might arise
when the agency has “seriously mischaracterized” evidence, Mendez, 566 F.3d at
323, the agency here did not misrepresent the contents of the arrest report.
Second, Almonte’s arguments that the agency misread his appellate brief
and his plea agreement amount to a challenge to the agency’s decision not to credit
his version of events—that he only committed one offense, rather than the two
counts to which he pleaded guilty, and that his actions were substantially less
serious than the allegations in the arrest report—which does not raise a question
of law. The record does not reveal that the agency “totally overlooked” or
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“seriously mischaracterized” any evidence, and “the agency does not commit an
‘error of law’ every time an item of evidence . . . is described with imperfect
accuracy.” Id.However, Almonte’s third argument—that the BIA engaged in improper
factfinding—raises a legal question over which we have jurisdiction. “[W]hen the
BIA engages in factfinding in contravention of 8 C.F.R. § 1003.1(d)(3)(iv), it
commits an error of law, which we have jurisdiction to correct.” Padmore v. Holder,
609 F.3d 62, 67 (2d Cir. 2010). Nevertheless, Almonte’s argument fails for two
reasons. First, the BIA did not engage in factfinding. The IJ found that Almonte
abused his niece three times. On appeal, the BIA said that Almonte was “convicted
of two counts of Attempted Endangering the Welfare of a Child.” The facts as
stated by the BIA—that Almonte pleaded guilty to two counts—are consistent
with the IJ’s factual determination that Almonte abused his niece three times.
Convictions and incidents are not identical. Second, even assuming that the BIA
engaged in factfinding, the factfinding would have been permissible. The BIA
“will not engage in factfinding in the course of deciding cases,” except that it may
“take administrative notice of facts that are not reasonably subject to dispute, such
as … [f]acts that can be accurately and readily determined from official
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government sources and whose accuracy is not disputed.” 8 C.F.R.
§ 1003.1(d)(3)(iv)(A), (A)(3). The BIA based the statement that Almonte pleaded
guilty to two counts of Attempted Endangering the Welfare of a Child on
Almonte’s conviction record. Almonte does not challenge the accuracy of his
conviction record. Thus, even if the BIA engaged in factfinding, it did so by taking
administrative notice of facts from an “official government source[] … whose
accuracy is not disputed.” 8 C.F.R. § 1003.1(d)(3)(iv)(A)(3). The BIA therefore did
not engage in improper factfinding. We deny the petition for review with respect
to Almonte’s claim of improper factfinding.
In sum, Almonte’s first two arguments go to the weight the agency gave the
evidence and its balancing of Almonte’s criminal history with other factors,
neither of which is subject to judicial review. See Barco-Sandoval, 516 F.3d at 36; see
also Argueta, 617 F.3d at 113 (finding the “contention that the IJ weighed factors
that the IJ was prohibited from considering is quite distinct from the unreviewable
argument that the IJ balanced improperly those factors that the IJ could consider”).
We have jurisdiction over Almonte’s third argument: that the BIA engaged in
improper factfinding in violation of its regulations. But we conclude that the BIA
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did not engage in factfinding, and even if it had that factfinding would have been
permissible under the applicable regulation.
* * *
For the foregoing reasons, the petition for review is DISMISSED in part and
DENIED in part. All pending motions and applications are DENIED and stays
VACATED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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