Coello Farfan v. Barr ( 2020 )

19-1819
Coello Farfan v. Barr
BIA
Straus, IJ
A074 913 373
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
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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.
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
4th day of December, two thousand twenty.
PRESENT:
JOHN M. WALKER, JR.,
ROBERT A. KATZMANN,
RICHARD C. WESLEY,
Circuit Judges.
_____________________________________
MIGUEL ANGEL COELLO FARFAN,
AKA MIGUEL COELLO,
Petitioner,
v. 19-1819
WILLIAM P. BARR, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: GLENN L. FORMICA, ESQ., FORMICA, P.C.,
New Haven, CT.
FOR RESPONDENT: COLIN J. TUCKER, Trial Attorney (Leslie
McKay, Senior Litigation Counsel, on
the brief) for Jeffrey Bossert
Clark, Acting Assistant Attorney
General, Office of Immigration
Litigation, United States Department
of Justice, Civil Division,
Washington, DC.
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 Miguel Angel Coello Farfan, a native and citizen
of Peru, seeks review of decision of the BIA affirming a decision
of an Immigration Judge (“IJ”) denying adjustment of status and
ordering him removed. In re Miguel Angel Coello Farfan, No. A 074
913 373 (B.I.A. June 3, 2019), aff’g No. A 074 913 373 (Immig. Ct.
Hartford Jan. 26, 2018). We assume the parties’ familiarity with
the underlying facts and procedural history.
Adjustment to lawful permanent resident status is a
discretionary form of relief available to a non-citizen who is
eligible to receive an immigrant visa, is admissible to the United
States for permanent residence, and has an immigrant visa
immediately available at the time of filing the adjustment
application. 8 U.S.C. § 1255(a). When evaluating a request for
such an adjustment, the agency engages in a “two-step process,”
first determining eligibility and then deciding whether the relief
is warranted as a matter of discretion. Rodriguez v. Gonzales, 451
F.3d 60, 62 (2d Cir. 2006). Our jurisdiction to review the agency’s
discretionary denial of adjustment of status is limited to
colorable constitutional claims and questions of law, which we
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review de novo. See 8 U.S.C. § 1252(a)(2)(B)(i) & (D); see Pierre
v. Holder, 588 F.3d 767, 772 (2d Cir. 2009).
Petitioner raises two questions of law. See Argueta v. Holder,
617 F.3d 109, 113 (2d Cir. 2010) (noting that consideration of an
improper factor would raise a question of law). First, he contends
that the agency erred in considering, as a factor relevant to its
exercise of discretion, his conviction for a crime that is not an
enumerated inadmissibility ground in 8 U.S.C. § 1182(a)(2).
Second, Petitioner contends that the IJ erred in considering the
facts underlying his conviction because it was later vacated by a
state appeals court. Both arguments lack merit.
The IJ found Petitioner admissible and statutorily eligible
for adjustment of status but denied that relief as a matter of
discretion, after considering his criminal convictions and past
immigration fraud. Petitioner’s argument that an IJ cannot
consider a conviction as part of the exercise of discretion unless
it is an enumerated crime under in § 1182(a)(2) is inconsistent
with our case law and the language of the statute.
Admissibility is a distinct inquiry from whether an alien
merits adjustment: section 1255(a) states that the Attorney
General “may” grant adjustment “in his discretion,” once a non-
citizen meets certain requirements, including being admissible. We
have held that the agency may consider an applicant’s criminal
history in this type of discretionary inquiry. See Noble v.
Keisler, 505 F.3d 73,78–80 (2d Cir. 2007); Wallace v. Gonzalez,
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463 F.3d 135, 138–40 (2d Cir. 2006). Nor is there any statutory
bar to such considerations at the discretionary step. See, e.g.,
8 U.S.C. § 1255(h)(2).
The IJ’s discretion is broad, but the statute does not give
the IJ unfettered power. The IJ must, for example, consider the
relevant evidence and balance the negative factors against those
that weigh in favor of a discretionary adjustment; the agency would
commit an error of law were it to “totally overlook[]” an important
fact. Mendez v. Holder, 566 F.3d 316, 323 (2d Cir. 2009).
Accordingly, the IJ properly considered Petitioner’s conviction in
its discretionary analysis, even though the crime would not itself
have rendered him inadmissible.
Moreover, Petitioner mischaracterizes the IJ’s analysis in
arguing that the IJ improperly considered the conduct underlying
his vacated conviction. The IJ acknowledged the vacatur of the
original conviction but nevertheless considered it relevant
because Petitioner subsequently pled guilty to a lesser charge
that was based on the same conduct. Indeed, the IJ appears to have
relied on the petitioner’s statements as to this conduct in his
plea colloquy. We find no error in such reliance. See Wallace, 463
F.3d at 139.
The petition for review is therefore DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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