MacIas-brito v. Holder

08-6145-ag
Macias v. Holder

UNITED STATES COURT OF APPEALS
F OR T HE S ECOND C IRCUIT

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 Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 2 nd day of February, two thousand and ten.

Present: RICHARD C. WESLEY,
GERARD E. LYNCH,
Circuit Judges,
MARK R. KRAVITZ
District Judge. *
______________________________ ____________________

MICHAEL JAVIER MACIAS-BRITO,

Petitioner,

- v. - (08-6145-ag)

ERIC H. HOLDER, JR., United States
Attorney General, **

Respondent.
__________________________________________________

*
The Honorable Mark R. Kravitz, United States District Court for the
District of Connecticut, sitting by designation.
**
Pursuant to Federal Rule of Appellate Procedure 43(c)(2), United States
Attorney General Eric H. Holder, Jr., is substituted for former Attorney
General Michael B. Mukasey as respondent in this case. The Clerk of the Court
is respectfully directed to amend the official caption in this action to
conform to the caption in this summary order.
 For Petitioner: SANDRA GREENE, GreeneFitzgerald
Advocates and Consultants, York,
Pennsylvania.

For Respondent: STUART S. NICKUM, Trial
Attorney, Office of Immigration
Litigation (Tony West, Assistant
Attorney General; Jennifer
Paisner Williams, Senior
Litigation Counsel, Office of
Immigration Litigation, on the
brief), Civil Division, U.S.
Department of Justice,
Washington, 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 in part and DISMISSED in part.

5 Petitioner Michael Javier Macias-Brito, a native and

6 citizen of Ecuador, seeks review of the November 17, 2008

7 decision of the BIA, which affirmed the October 2, 2007

8 decision of Immigration Judge (“IJ”) Gabriel C. Videla. The

9 IJ denied petitioner’s applications for cancellation of

10 removal and voluntary departure, held that petitioner had

11 waived the ability to seek a waiver of inadmissibility and

12 adjustment of status, and denied petitioner’s motion for

13 reconsideration.

14 We presume the parties’ familiarity with the underlying

15 facts and the procedural history of the case. In the

16 petition for review, petitioner does not dispute the IJ’s

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 1 denial of his application for a cancellation of removal.

2 Rather, he challenges the IJ’s conclusions relating to his

3 ability to seek a waiver of inadmissibility and adjustment

4 of status, and the IJ’s denial of his request for voluntary

5 departure.

6 Petitioner first contends that the IJ committed legal

7 error by holding that petitioner had waived his ability to

8 seek: (1) a waiver of inadmissibility pursuant to § 212(h)

9 of the Immigration and Nationality Act (“INA”), 8 U.S.C. §

10 1182(h); and (2) an adjustment of status pursuant to §

11 245(i) of the INA, id. § 1255(i). The IJ reached these

12 conclusions based on the failure of petitioner’s counsel to

13 comply with the submission deadlines that he set during

14 petitioner’s administrative hearing. We review such

15 decisions for abuse of discretion. See Dedji v. Mukasey,

16 525 F.3d 187, 191 (2d Cir. 2008).

17 The transcript of petitioner’s hearing demonstrates

18 that, on January 19, 2007, the IJ directed petitioner’s

19 counsel to submit, by May 18, 2007, petitioner’s “adjustment

20 application and the waiver application and proof that he’s .

21 . . prima faci[e] eligible.” The IJ made clear that May 18

22 would be the deadline for petitioner to submit his relevant

23 applications, and warned that the date would be the “final

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 1 date for all applications for relief.” To the extent that

2 the IJ’s instructions were ambiguous, it was incumbent upon

3 counsel to seek clarification because petitioner bore the

4 burden of demonstrating that he was entitled to relief. See

5 8 C.F.R. § 1240.8. Counsel failed to do so, and petitioner

6 did not submit the materials by the May 18, 2008 deadline

7 set by the IJ. Under those circumstances, the IJ did not

8 abuse his discretion in determining that petitioner waived

9 the opportunity to submit applications for a waiver of

10 inadmissibility and an adjustment of status. See id.

11 § 1003.31(c). 1 We further conclude that petitioner has not

12 identified any meritorious basis — constitutional or

13 otherwise — for finding that the IJ abused his discretion in

14 denying petitioner’s motion for reconsideration of these

15 issues. Therefore, the petition for review is denied

16 insofar as it challenges the IJ’s decisions relating to

17 petitioner’s ability to seek a waiver of inadmissibility and

18 an adjustment of status.

19 Petitioner’s second principal contention is that the IJ

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In his brief in support of the petition for review, petitioner raises a
series of contentions relating to “procedures required for the submission of
relief applications in removal proceedings adopted in 2006 by [United States
Citizenship and Immigration Services] and [the Executive Office for
Immigration Review].” Petitioner did not present these arguments to the BIA
in his direct appeal of the IJ’s decision, and he therefore may not press them
here. See Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 107 & n.1 (2d Cir.
2007); see also Steevenez v. Gonzales, 476 F.3d 114, 117 (2d Cir. 2007)
(citing 8 U.S.C. § 1252(d)(1)).

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 1 wrongly denied his application for voluntary departure

2 pursuant to INA § 240B(b), 8 U.S.C. § 1229c(b). Our

3 jurisdiction over this aspect of the petition is limited to

4 the examination of colorable constitutional and legal

5 questions presented therein. See Carcamo v. U.S. Dep’t of

6 Justice, 498 F.3d 94, 97 (2d Cir. 2007) (citing 8 U.S.C. §§

7 1229c(f), 1252(a)(2)(B)(i)). At bottom, however, petitioner

8 challenges the factual determinations of IJ. When

9 presenting such contentions, the “‘talismanic invocation of

10 the language of due process’ is insufficient to confer

11 jurisdiction on this Court.” Id. at 98 (quoting Saloum v.

12 U.S. Citizenship & Immig. Servs., 437 F.3d 238, 243 (2d Cir.

13 2006)). Consequently, the petition for review is dismissed

14 to the extent that it challenges the BIA’s denial of

15 petitioner’s application for voluntary departure.

16 We have reviewed all of petitioner’s arguments and find

17 them to be without merit. Accordingly, the petition for

18 review is DENIED in part and DISMISSED in part, and the

19 pending motion for a stay of removal is DISMISSED as moot.
20
21 For the Court
22 Catherine O’Hagan Wolfe, Clerk
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