Opinion
19-12-ag
09-10-2020
JORGE R. ROLDAN, Petitioner, v. WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, Respondent.
For Petitioner: Nicholas J. Mundy, Nicholas J, Mundy, Esq., PLLC, Brooklyn, NY. For Respondent: Joanna L. Watson, Trial Attorney, Ethan P. Davis, Acting Assistant Attorney General, Anthony P. Nicastro, Assistant Director, Office of Immigration Litigation, United States Department of Justice, Washington, D.C.
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 10th day of September, two thousand twenty. PRESENT: JOHN M. WALKER, JR., ROBERT A. KATZMANN, RAYMOND J. LOHIER, JR., Circuit Judges. For Petitioner: Nicholas J. Mundy, Nicholas J, Mundy, Esq., PLLC, Brooklyn, NY. For Respondent: Joanna L. Watson, Trial Attorney, Ethan P. Davis, Acting Assistant Attorney General, Anthony P. Nicastro, Assistant Director, Office of Immigration Litigation, United States Department of Justice, 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 Jorge R. Roldan, a native and citizen of El Salvador, seeks review of a December 10, 2018, decision of the BIA dismissing his appeal of an October 19, 2017, decision of an Immigration Judge ("IJ") denying his application for special rule cancellation of removal under the Nicaraguan Adjustment and Central American Relief Act ("NACARA"). In re Jorge R. Roldan, No. A 094 102 324 (B.I.A. Dec. 10, 2018), aff'g No. A 094 102 324 (Immig. Ct. N.Y.C. Oct. 19, 2017). We assume the parties' familiarity with the underlying facts and procedural history.
We have reviewed the IJ's decision as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). To establish eligibility for special rule cancellation of removal under NACARA, an applicant must demonstrate seven years of continuous presence, good moral character, and that removal would cause "extreme hardship to the alien, or to the alien's spouse, parent or child who is a United States citizen or an alien lawfully admitted for permanent residence." 8 C.F.R. § 1240.66(b). "The burden of proof is on the applicant to establish by a preponderance of the evidence that he or she is eligible for . . . special rule cancellation of removal and that discretion should be exercised to grant relief." 8 C.F.R. § 1240.64(a); see also Mendez v. Holder, 566 F.3d 316, 319-20 (2d Cir. 2009) (describing two-step process of first determining eligibility and then deciding if a favorable exercise of discretion is warranted). Here, the agency found Roldan eligible but denied cancellation as a matter of discretion.
Our jurisdiction to review a discretionary denial of special rule cancellation of removal is limited to constitutional claims and questions of law. NACARA, Pub. L. No. 105-100, 111 Stat. 2193, 2196 (1997); Argueta v. Holder, 617 F.3d 109, 111-12 (2d Cir. 2010). The agency may commit legal error when its discretionary decision "was made without rational justification," Xiao Ji Chen v. U.S. Dep't of Justice, 471 F.3d 315, 329 (2d Cir. 2006), and an error of law in fact-finding may occur when "facts important to [the discretionary] determination . . . have been totally overlooked and others have been seriously mischaracterized," Mendez, 566 F.3d at 323. But "the agency does not commit an 'error of law' every time an item of evidence is not explicitly considered or is described with imperfect accuracy." Id. And "we will generally presume that the agency has taken into account all of the evidence before it, unless the record compellingly suggests otherwise." Jin Yi Liao v. Holder, 558 F.3d 152, 156 n.3 (2d Cir. 2009).
Unless otherwise indicated, in quoting cases we omit all citations, footnotes, alterations, emphases, and internal quotation marks.
Roldan argues that the agency mischaracterized the evidence because the IJ incorrectly described the affidavits from his family and friends as omitting any mention of his past criminal history or issues with alcohol. But reviewing the IJ's exercise of discretion de novo, the BIA held that even "assuming that the [IJ] committed a factual error regarding the contents" of the supporting affidavits, the BIA was "not persuaded that such an error is sufficient to establish that [Roldan] merits a favorable exercise of discretion." Certified Administrative Record 5. As supplemented by that determination, the agency's conclusion rested on a weighing of evidence that we do not have jurisdiction to review.
Roldan also contends that the agency mischaracterized evidence that he filed amended tax returns to correct earlier errors, and gave improper weight to a polygraph examination regarding his criminal history. But the IJ did note Roldan's filing of amended tax returns, and we have jurisdiction to review Roldan's claim only if the agency "totally overlooked" or "seriously mischaracterized" that evidence. Mendez, 566 F.3d at 323. On this record, we cannot conclude that this was the case; thus, even assuming the IJ described the amended tax returns "with imperfect accuracy," we lack jurisdiction to review the agency's consideration of that evidence. Id. Similarly, because the agency considered the polygraph test and merely declined to give it more than "some weight," we lack jurisdiction to review Roldan's claim on that basis as well. Certified Administrative Record 66.
Nor does the record support Roldan's claim that the agency overlooked his psychological evaluation. Here, the agency explained that the evidence of Roldan's past criminal conduct outweighed the favorable considerations in its discretionary determination and flagged inconsistencies in the record regarding that conduct and his contemporaneous admission. We cannot conclude that this record "compellingly suggests" that the agency failed to consider the psychological evaluation merely because it did not explicitly consider it. Jin Yi Liao, 558 F.3d at 156 n.3; see Mendez, 566 F.3d at 323. Finally, to the extent that Roldan argues that the agency gave too little weight to his evidence of positive equities relative to his criminal history, we do not have jurisdiction to review the weight the agency gives to the evidence and its balancing of factors. See Argueta, 617 F.3d at 113.
We have considered all of Roldan's arguments and found no colorable constitutional claims or other errors of law within our jurisdiction to review. For the foregoing reasons, the petition for review is DISMISSED.
FOR THE COURT:
Catherine O'Hagan Wolfe, Clerk