Pavan Vaswani v. Attorney General United States ( 2022 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 21-2904
____________
PAVAN MAHESH VASWANI,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA
____________
On Petition for Review of a Decision of the
Board of Immigration Appeals
(A089-640-309)
Immigration Judge: Emily Farrar-Crockett
____________
Submitted Under Third Circuit L.A.R. 34.1(a)
(November 14, 2022)
Before: HARDIMAN, RESTREPO, and PORTER, Circuit Judges.
(Filed: November 15, 2022)
____________
OPINION *
____________
HARDIMAN, Circuit Judge.
Pavan Vaswani petitions for review of a final order of removal issued by the
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Board of Immigration Appeals. Vaswani contends the Board erred when it concluded that
he failed to prove his removal would cause “extreme hardship” to his U.S.-citizen
relatives. Because he challenges only factual and discretionary determinations, we lack
jurisdiction under 8 U.S.C. § 1252(a)(2)(B)(i). We will dismiss Vaswani’s petition.
I
A native and citizen of India, Vaswani entered the United States on a student visa
in 1998 and became a lawful permanent resident in 2007. In 2019, he was convicted of
wire fraud and conspiracy, sentenced to 18 months’ imprisonment, and ordered to pay
$5.8 million in restitution. The Department of Homeland Security charged Vaswani with
removability under 8 U.S.C. § 1227(a)(2)(A)(iii) because his convictions were for
aggravated felonies, and an Immigration Judge found him removable.
Vaswani later applied for adjustment of status under 8 U.S.C. § 1255(a) and
sought a waiver of inadmissibility under 8 U.S.C. § 1182(h), arguing that his removal
would cause extreme hardship to his wife, two children, and mother—all U.S. citizens.
An IJ conducted a hearing to evaluate the extreme-hardship claim, at which Vaswani and
his wife testified. They testified that Vaswani’s wife and children would not relocate to
India if he were removed, though his mother might. They also detailed the risks
Vaswani’s removal would pose to the physical and mental health of his four qualifying
relatives based on his wife’s and mother’s preexisting medical conditions and his two
school-aged children’s anxiety.
The IJ determined that this testimony failed to show hardships that, even when
combined, rise to the level of “extreme hardship.” So Vaswani was statutorily ineligible
2
for adjustment of status. Vaswani appealed to the Board of Immigration Appeals. After
reviewing the hardships Vaswani’s wife, children, and mother would face, the Board
dismissed the appeal, agreeing with the IJ that “the evidentiary record does not
demonstrate that the hardships to [Vaswani’s relatives], when considered individually
and in the aggregate, rise to the level of extreme hardship.” AR 9. Vaswani timely
petitioned for review.
II
Our jurisdiction over petitions for review of Board decisions is governed by 8
U.S.C. § 1252. We lack jurisdiction here because Vaswani challenges the Board’s
discretionary hardship determination without raising any colorable constitutional or legal
claim. See 8 U.S.C. § 1252(a)(2)(B)(i), (D); Cospito v. Att’y Gen., 539 F.3d 166, 170–71
(3d Cir. 2008) (per curiam).
Vaswani challenges only one finding by the Board: that he failed to demonstrate
his removal will result in extreme hardship to his qualifying relatives. Vaswani sought
relief under 8 U.S.C. § 1182(h)(1)(B), which provides the Attorney General discretion to
waive the application of certain criminal inadmissibility grounds if an alien’s removal
“would result in extreme hardship to the [alien’s] United States citizen or lawfully
resident spouse, parent, son, or daughter.” We lack jurisdiction to review challenges to
factual or discretionary decisions regarding § 1182(h) extreme-hardship determinations, 8
U.S.C. § 1252(a)(2)(B)(i); Patel v. Garland, 142 S. Ct. 1614, 1627 (2022), and retain
only the “narrowly circumscribed” jurisdiction under § 1252(a)(2)(D) to review
“colorable constitutional claims or questions of law,” Cospito, 539 F.3d at 170 (internal
3
quotation marks and citation omitted).
Vaswani raises no colorable constitutional or legal claim; he challenges only the
Agency’s factfinding and exercise of discretion. This challenge fails for the same reasons
we explained in Cospito. See 539 F.3d at 170–71. There, we held that we lacked
jurisdiction over a petition that argued the Agency gave insufficient weight to certain
evidence, ignored other evidence, failed to adequately consider the emotional impact of
removal, and evaluated hardships individually rather than jointly. Cospito, 539 F.3d at
170. Vaswani’s arguments that the Agency failed to “aggregate the ordinary hardships to
determine if they equal a determination of extreme hardship,” Vaswani Br. 10, and
“grossly misapplied the applicable legal standard,” Vaswani Br. 22, are indistinguishable
from those in Cospito.
Vaswani’s framing on appeal—purporting to dispute the Board’s “statutory
interpretation of the standard for extreme hardship” and alleging that the Board’s
“misapplication of the legal standard in question also constitutes a violation of due
process,” Vaswani Br. 1—cannot save his petition. Vaswani “may not dress up a claim
with legal clothing to invoke this Court’s jurisdiction.” Hernandez-Morales v. Att’y Gen.,
977 F.3d 247, 249 (3d Cir. 2020) (internal quotation marks and citation omitted); see also
Cospito, 539 F.3d at 170 (“A party cannot confer jurisdiction on this Court where none
exists simply by attaching a particular label to the claim raised in a petition for review.”).
Here, both the Board and IJ invoked the correct rule in concluding that he failed to show
the hardships, “when considered individually and in the aggregate, rise to the level of
extreme hardship.” See AR 9 (emphasis added); AR 79. Vaswani faults the Agency for
4
failing to properly apply the asserted aggregation rule, which calls into question only the
Agency’s factfinding and discretion.
For these reasons, we will dismiss the petition for review.
5