McKenzie v. Holder

09-2892-ag
McKenzie v. Holder
BIA
Vomacka, IJ
A037 141 191
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 14 th day of September, two thousand ten.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 PETER W. HALL,
9 DENNY CHIN,
10 Circuit Judges.
11 _______________________________________
12
13 NIGEL PAUL MCKENZIE,
14 Petitioner,
15
16 v. 09-2892-ag
17
18 ERIC H. HOLDER, JR., U.S. ATTORNEY
19 GENERAL, BOARD OF IMMIGRATION APPEALS,
20 Respondents.
21 ______________________________________
22
23 FOR PETITIONER: Vivian M. Williams, New York, New
24 York.
25
26 FOR RESPONDENTS: Tony West, Assistant Attorney
27 General; Ernesto H. Molina, Jr.,
28 Assistant Director ; Drew C.
29 Brinkman, Trial Attorney, Office of
30 Immigration Litigation, Washington
31 D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Petitioner Nigel Paul McKenzie, a native and citizen of
6 Guyana, seeks review of the May 29, 2009, order of the BIA
7 affirming the January 6, 2009, decision of Immigration Judge
8 (“IJ”) Alan A. Vomacka denying his application for a waiver
9 of inadmissibility under former Immigration and Nationality
10 Act § 212(c) (repealed 1996) and his application for
11 withholding of removal and relief under the Convention
12 Against Torture (“CAT”). In re Nigel Paul McKenzie, No.
13 A037 141 191 (B.I.A. May 29, 2009), aff’g No. A037 141 191
14 (Immig. Ct. N.Y. City Jan. 6, 2009). We assume the parties’
15 familiarity with the underlying facts and procedural history
16 in this case.
17 Under the circumstances of this case, we review the
18 decision of the IJ as supplemented by the BIA. See Yan Chen
19 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
20 applicable standards of review are well-established.
21 See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562
22 F.3d 510, 513 (2d Cir. 2009).
2
1 Under 8 U.S.C. § 1252(a)(2)(C), “no court shall have
2 jurisdiction to review any final order of removal against an
3 alien who is removable by reason of having committed a
4 criminal offense covered in [INA] section 212(a)(2).” Here,
5 the Notice to Appear charged McKenzie with inadmissibility
6 under INA § 212(a)(2)(A)(i)(II) based on his conviction for
7 a controlled substance violation. Therefore, we are without
8 jurisdiction to consider the BIA’s removal order.
9 8 U.S.C. § 1252(a)(2)(C); see also Noble v. Keisler, 505
10 F.3d 73, 77 (2d Cir. 2007). We similarly lack jurisdiction
11 to consider the BIA’s discretionary denial of McKenzie’s
12 application for a waiver of inadmissibility under former INA
13 § 212(c). See 8 U.S.C. § 1252(a)(2)(B)(ii); see also
14 Nethagani v. Mukasey, 532 F.3d 150, 154 n.2 (2d Cir. 2008).
15 Notwithstanding these provisions, we retain jurisdiction to
16 consider any “constitutional claims or questions of law”
17 raised in McKenzie’s petition for review. 8 U.S.C.
18 § 1252(a)(2)(D).
19 McKenzie argues that the BIA erred by failing to
20 consider his children’s medical history, the separation of
21 his family, and the financial difficulties and hardship his
22 family would face if he were deported in assessing his
3
1 eligibility for a waiver of inadmissibility. To the
2 contrary, the BIA explicitly referred to “evidence of
3 hardship to the respondent and family if deportation
4 occurs,” as well as noting that McKenzie’s “two youngest
5 children suffer from serious medical conditions” and that
6 “removal will unquestionably cause them hardship since they
7 could be deprived of his financial and emotional support.”
8 Thus, McKenzie is essentially disputing the weight that the
9 BIA chose to give to each of these factors, and, as noted
10 above, the Court lacks jurisdiction to consider that
11 argument. See 8 U.S.C. § 1252(a)(2)(B); Nethagani, 532 F.3d
12 at 154 n.2. McKenzie also argues that the IJ erred by
13 giving “undue weight” to issues that arose after he
14 “initially pleaded to allegations giving rise to the charges
15 of deportability.” Again, he is merely disputing the
16 correctness of the IJ’s discretionary balancing of the
17 equities. See 8 U.S.C. § 1252(a)(2)(B). Furthermore as the
18 government asserts, McKenzie “cites no law to support the
19 novel proposition that an Immigration Judge may not consider
20 facts arising after an alien pleads to charges of
21 removability when adjudicating the alien’s claims for relief
22 from removal.”
4
1 With respect to his application for withholding of
2 removal and CAT relief, McKenzie argues that the BIA
3 committed legal error by applying a “more than 50%”
4 likelihood standard to his claims for withholding of removal
5 and CAT relief. This argument raises a question of law
6 which we retain jurisdiction to review. See Barco-Sandoval
7 v. Gonzales, 516 F.3d 35, 39-41 (2d Cir. 2008). However,
8 the record indicates that the BIA applied the correct “more
9 likely than not standard” to those claims. See Gao v.
10 Gonzales, 424 F.3d 122, 128-29 (2d Cir. 2005); INS v.
11 Cardoza-Fonseca, 480 U.S. 421, 423 (1987). Furthermore,
12 McKenzie failed to exhaust his argument that he demonstrated
13 a nexus to a protected ground based on his cousin’s alleged
14 “entrapment” by not raising that issue before the BIA. See
15 Foster v. INS, 376 F.3d 75, 78 (2d Cir. 2004). Finally,
16 McKenzie’s argument that the IJ’s decision was contradictory
17 with respect to whether he demonstrated sufficient
18 rehabilitation is again a dispute over the IJ’s exercise of
19 discretion, and we are therefore without jurisdiction to
20 consider it. See 8 U.S.C. § 1252(a)(2)(B), (C).
21 For the foregoing reasons, the petition for review is
22 DENIED. As we have completed our review, any stay of
5
1 removal that the Court previously granted in this petition
2 is VACATED, and any pending motion for a stay of removal in
3 this petition is DISMISSED as moot. Any pending request for
4 oral argument in this petition is DENIED in accordance with
5 Federal Rule of Appellate Procedure 34(a)(2), and Second
6 Circuit Local Rule 34.1(b).
7 FOR THE COURT:
8 Catherine O’Hagan Wolfe, Clerk
9
6