Patel v. Holder

12-4376 (L)
Patel v. Holder
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 21st day of October, two thousand thirteen.
PRESENT: GERARD E. LYNCH,
DENNY CHIN,
CHRISTOPHER F. DRONEY,
Circuit Judges.
_________________________________________
RAKESHKUMAR V. PATEL,
Petitioner,
v. Nos. 12-4376 (L)
13-507 (Con)
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_________________________________________
FOR PETITIONER: JOSEPH C. HOHENSTEIN, Orlow, Kaplan & Hohenstein, LLP,
Philadelphia, Pennsylvania.
FOR RESPONDENT: STUART F. DELERY, Acting Assistant Attorney General,
ANTHONY C. PAYNE, Senior Litigation Counsel, ALI
MOHAMMAD MANUCHEHRY, Trial Attorney, United States
Department of Justice, Washington, D.C.
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the petitions for review are DENIED.
Rakeshkumar V. Patel, a native and citizen of India, seeks review of a September
20, 2012, decision of the Board of Immigration Appeals (“BIA”), affirming the January
25, 2010, decision of Immigration Judge (“IJ”) Philip J. Montante, Jr. denying his
application for adjustment of status, and a January 28, 2013, order of the BIA denying
reopening and reconsideration. In re Rakeshkumar V. Patel, No. A078 389 002 (B.I.A.
Sept. 20, 2012), aff’g No. A078 389 002 (Immig. Ct. Buffalo Jan. 25, 2010); In re
Rakeshkumar V. Patel, No. A078 389 002 (B.I.A. Jan. 28, 2013). We assume the parties’
familiarity with the underlying facts and procedural history in this case, which we
reference only as necessary to explain our decision.
As an initial matter, the Government challenges the timeliness of the petition for
review of the first BIA decision, because the petition was electronically filed after the end
of the 30-day filing period. See 8 U.S.C. § 1252(b)(1). However, Patel timely filed in
hard copy and his failure to comply with our local rule regarding electronic filing does
not affect our jurisdiction. See Fed. R. App. P. 47(a)(2); Contino v. United States, 535
F.3d 124, 126-27 (2d Cir. 2008).
Our jurisdiction to review discretionary decisions of the BIA such as denials of
adjustment of status is limited to constitutional claims and questions of law, 8 U.S.C.
§ 1252(a)(2)(B)(ii). Patel argues that, in denying his applications, the agency
mischaracterized relevant facts and applied an erroneous legal standard. While such
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claims can raise questions of law, Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315,
329 (2d Cir. 2006), here neither contention has merit.
Patel’s claim of deficiencies in the agency’s treatment of the facts is unavailing.
While he correctly observes that the IJ erroneously characterized his criminal history
when denying his status adjustment, the BIA corrected the record in its de novo review
affirming the IJ’s decision. Nor did the agency overlook evidence presented by Patel.
The record demonstrates that the BIA considered the positive equities he presented with
sufficient care and granularity such that its review does not approach an error of law. See
Mendez v. Holder, 566 F.3d 316, 323 (2d Cir. 2009) (holding that the agency need not
review every piece of evidence explicitly or perfectly); Xiao Ji Chen, 471 F.3d at 336 n.
17 (noting that the agency need not recite all relevant evidence to demonstrate adequate
consideration). As the record does not suggest that the agency failed to consider evidence
presented by Patel, we find no reviewable error of law on this basis.
In essence, Patel’s argument rests on the claim that the agency failed to properly
balance his positive equities against his criminal history and other adverse evidence.
Patel stresses his hard work and success as an entrepreneur and the esteem with which he
is held in his community. The agency considered these positive factors, but found them
outweighed by the negative features of the record. We lack jurisdiction to consider
Patel’s arguments, which simply challenge the agency’s discretionary balancing of the
equities.
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With respect to Patel’s motion for reconsideration and reopening, a motion to
reconsider must identify errors of law or fact in a previous order of the BIA, 8 U.S.C.
§ 1229a(c)(6). We find no error of law or fact here. Patel’s motion essentially argued
that the initial decision of the BIA was wrong, for the same reasons we have rejected
above. A motion to reopen may be granted only if a party presents new material evidence
unavailable at the time of the original hearing, 8 C.F.R. § 1003.2(c)(1), and the BIA
retains discretion to deny such a motion “even if the party moving has made out a prima
facie case for relief,” 8 C.F.R. § 1003.2(a). Patel presented no new evidence that would
justify a rehearing, and we lack jurisdiction to review the BIA’s exercise of its discretion
to deny reopening.
Accordingly, Patel has identified no error of law in the agency’s decisions. The
petitions for review are therefore DENIED. As we have completed our review, the
pending motion for a stay of removal in these petitions is DENIED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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