Irfan v. Lynch

14-3175 BIA
Irfan v. Lynch Vomacka, IJ
A076 551 093
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 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 20th day of May, two thousand sixteen.
PRESENT: JOSÉ A. CABRANES,
CHESTER J. STRAUB,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
_____________________________________
RANA MOHAMMAD IRFAN,
Petitioner,
v. 14-3175
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: MEREDITH E. KALMAN (Disha Chandiramani and Kerry
W. Bretz, on the brief), Bretz & Coven, LLP, New York,
NY.
FOR RESPONDENT: LINDSAY M. MURPHY, Trial Attorney (Benjamin C. Mizer,
Principal Deputy Assistant Attorney General, and Cindy
S. Ferrier, Assistant Director, on the brief), U.S. Department
of Justice, Civil Division, Washington, D.C.
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 Rana Mohammad Irfan, a native and citizen of Pakistan, seeks review of a July 29,
2014 decision of the BIA affirming the April 30, 2013 decision of an Immigration Judge (“IJ”) denying
adjustment of status and waivers of admissibility. In re Rana Mohammad Irfan, No. A076 551 093
(B.I.A. July 29, 2014), aff’g No. A076 551 093 (Immig. Ct. New York City Apr. 30, 2013). We assume
the parties’ familiarity with the underlying facts and the case’s procedural history.
Irfan sought from the BIA a waiver of inadmissibility in order to pursue adjustment of status.
See 8 U.S.C. § 1255(a). The agency has discretion to waive the inadmissibility of an alien if removal of
the applicant would result in extreme hardship to the applicant’s U.S. citizen spouse. 8 U.S.C.
§ 1182(h)(1)(B), (i). An agency finding that an applicant seeking a waiver failed to show extreme
hardship to a qualifying relative is a discretionary determination not subject to judicial review, Zhang v.
Gonzales, 457 F.3d 172, 175-76 (2d Cir. 2006); similarly, we lack jurisdiction to review discretionary
denials in cases where extreme hardship is made out, Bugayong v. INS, 442 F.3d 67, 72-73 (2d Cir. 2006).
We do, however, retain jurisdiction to review colorable constitutional claims and questions of law. See
8 U.S.C. § 1252(a)(2)(D); Barco-Sandoval v. Gonzales, 516 F.3d 35, 39 (2d Cir. 2007).
Irfan first argues that the BIA committed legal error by failing to consider all of the evidence
relevant to the hardship determination. This argument addresses itself not to any question of law, but
to the BIA’s weighing of the evidence—an operation we lack jurisdiction to review. It is true that
when facts critical to the inquiry into hardship are “totally overlooked” or “seriously mischaracterized”
by the agency, “an error of law has occurred.” Mendez v. Holder, 566 F.3d 316, 323 (2d Cir. 2009). But
nothing of the sort happened in this case. The BIA discussed the factors underlying its conclusion
that Irfan’s removal would not result in severe hardship to his spouse (e.g., her reasonably good health,
the unlikelihood that any financial difficulties would be extreme, and her son’s approaching eighteenth
birthday) and cited those portions of the record and the IJ’s decision that informed its assessment of
the facts (e.g., Irfan’s wife’s work experience and the paucity of evidence showing that Irfan could not
sell the family home except at a loss). See A.R. at 4, 86. It is of no moment that the agency
conceivably could have discussed more evidence: “the agency does not commit an ‘error of law’ every
time an item of evidence is not explicitly considered.” Mendez, 566 F.3d at 323. Accordingly, we
conclude that we lack power to entertain Irfan’s argument.
The same is true of Irfan’s contention that the agency failed properly to take account of the
positive equities in denying him a waiver. The BIA acknowledged the factors that favored Irfan’s
cause, see A.R. at 4, then determined, in its discretion, that they were outweighed by circumstances
favoring removal—for instance, Irfan’s 2008 bribery conviction, his attempts before the I.J. to
minimize the crime’s severity, and the pattern of fraud and misrepresentation that has marked his
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dealings with immigration officials during the last two decades, see id. at 5. We lack jurisdiction to
revisit the BIA’s balancing. 1
Nor do Irfan’s remaining arguments—predicated on the Due Process Clause and the rule of
SEC v. Chenery Corp., 318 U.S. 80 (1943)—raise any reviewable questions. These contentions simply
restate, under different labeling, Irfan’s argument that the BIA failed meaningfully to consider all the
evidence. “[A] petitioner cannot use the rhetoric of a constitutional claim or question of law to
disguise what is essentially a quarrel about factfinding or the exercise of discretion.” Barco-Sandoval,
516 F.3d at 39 (alterations and internal quotation marks omitted).
We have reviewed all of Irfan’s arguments on appeal and find them to be without merit. For
the foregoing reasons, the petition for review is DISMISSED for lack of jurisdiction.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
1
Irfan devotes a section of his brief to the argument that the BIA erred in determining that the
IJ’s adverse credibility determination was not clearly erroneous. This is a garden-variety “quarrel
about factfinding,” and, accordingly, it is beyond our power of review. Barco-Sandoval, 516 F.3d at 39
(internal quotation marks omitted).
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