17‐2612‐ag
Palaguachi v. Whitaker
BIA
Mulligan, IJ
A206 553 261
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.
1 At a stated term of the United States Court of Appeals for the Second
2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
3 Square, in the City of New York, on the 16th day of November, two thousand
4 eighteen.
5
6 PRESENT:
7 PIERRE N. LEVAL,
8 RAYMOND J. LOHIER, JR.,
9 Circuit Judges,
10 SIDNEY H. STEIN,*
11 District Judge.
12 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
13 RAMIRO PALAGUACHI,
14
15 Petitioner,
16
* Judge Sidney H. Stein, of the United States District Court for the Southern District of
New York, sitting by designation.
1 v. No. 17‐2612‐ag
2
3 MATTHEW G. WHITAKER,
4 ACTING UNITED STATES
5 ATTORNEY GENERAL,
6
7 Respondent.
8 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
9 FOR PETITIONER: Manuel D. Gomez, New York, NY.
10
11 FOR RESPONDENT: Madeline Henley, Attorney; Terri J. Scadron, Assistant
12 Director, Office of Immigration Litigation, for Chad A.
13 Readler, Acting Assistant Attorney General, Civil
14 Division, United States Department of Justice,
15 Washington, DC.
16
17 UPON DUE CONSIDERATION of this petition for review of a decision of
18 the Board of Immigration Appeals (“BIA”), it is hereby ORDERED, ADJUDGED,
19 AND DECREED that the petition for review is DENIED.
20 Petitioner Ramiro Palaguachi petitions for review of his order of removal
21 to Ecuador. He challenges a July 26, 2017 decision of the BIA reversing the May
22 3, 2016 decision of an Immigration Judge (“IJ”) granting him cancellation of
23 removal for certain nonpermanent residents pursuant to 8 U.S.C. § 1229b(b)(1).
24 Here, Palaguachi was required to show, among other things, that he had been a
25 person of good moral character for ten years in the United States. 8 U.S.C.
2
1 §§ 1101(f), 1229b(b)(1). The BIA concluded that Palaguachi did not have the
2 requisite period of good moral character under the “catchall” provision of 8
3 U.S.C. § 1101(f). In re Ramiro Palaguachi, No. A206 553 261 (B.I.A. July 26,
4 2017), rev’g No. A206 553 261 (Immig. Ct. N.Y. City May 3, 2016). We assume
5 the parties’ familiarity with the underlying facts and the record of prior
6 proceedings, to which we refer only as necessary to explain our decision to deny
7 the petition.
8 Because the BIA reversed the IJ, we review the BIA’s ruling as the final
9 agency decision. Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
10 BIA denied relief based solely on Palaguachi’s failure to show good moral
11 character. “Good moral character” is defined in 8 U.S.C. § 1101(f), which
12 identifies specific classes of crimes or conduct that are indicative of a lack of
13 moral character and contains a catchall provision stating that “[t]he fact that any
14 person is not within any of the foregoing classes shall not preclude a finding that
15 for other reasons such person is or was not of good moral character.” Pursuant
16 to this catchall provision, the BIA concluded that Palaguachi’s six arrests,
17 including one related to driving while impaired and several related to domestic
3
1 violence or harassment, showed that Palaguachi lacks good moral character.
2 Certified Administrative Record (“CAR”) at 4–5.
3 The Immigration and Nationality Act generally limits review of the denial
4 of discretionary relief, including cancellation of removal, to constitutional claims
5 or questions of law. 8 U.S.C. § 1252(a)(2)(B)(i), (D). Although we retain
6 jurisdiction to review non‐discretionary decisions related to cancellation,
7 Sepulveda v. Gonzales, 407 F.3d 59, 62–63 (2d Cir. 2005), we lack “jurisdiction to
8 review decisions . . . when the petition for review essentially disputes the
9 correctness of . . . fact‐finding or the wisdom of [the agency’s] exercise of
10 discretion . . . .” Barco‐Sandoval v. Gonzales, 516 F.3d 35, 39 (2d Cir. 2008)
11 (quotation marks omitted). Here, Palaguachi’s three purported legal claims
12 simply dispute the BIA’s discretionary choices.
13 First, Palaguachi argues that the BIA committed legal error when it
14 reversed the IJ’s determination “without explicitly ruling it to be clearly
15 erroneous.” But consistent with the regulations, the BIA appropriately
16 reviewed the IJ’s determinations of law, discretion, judgment, and all issues
4
1 other than findings of fact or credibility determinations de novo, not for clear
2 error. 8 C.F.R. § 1003.1(d)(3)(ii).
3 Second, Palaguachi contends that the BIA impermissibly found facts when
4 it concluded that his “recent history of violent or dangerous criminal activity”
5 defeated his claim of good moral character. But the BIA did not engage in new
6 fact finding; it simply reassessed the weight of Palaguachi’s undisputed criminal
7 history. See Belortaja v. Gonzales, 484 F.3d 619, 624–25 (2d Cir. 2007).
8 Finally, Palaguachi contends that the BIA misconstrued its holding in In re
9 Thomas, 21 I. & N. Dec. 20 (B.I.A. 1995), when it considered his arrests and
10 criminal conduct that did not result in convictions. But it is well settled that the
11 agency may consider misconduct that does not result in a conviction when
12 evaluating whether an alien merits discretionary relief. See Wallace v.
13 Gonzales, 463 F.3d 135, 139 (2d Cir. 2006).
14 Whether we have jurisdiction to review the BIA’s determination of moral
15 character pursuant to the catchall provision of 8 U.S.C. § 1101(f) where the
16 petitioner raises no colorable constitutional claims or questions of law is an open
17 question in this Circuit. See Sumbundu v. Holder, 602 F.3d 47, 55 & n.6 (2d Cir.
5
1 2010). We decline to reach this issue here. Instead, we assume statutory
2 jurisdiction and conclude that substantial evidence supports the BIA’s
3 determination that Palaguachi did not establish good moral character. See
4 Abimbola v. Ashcroft, 378 F.3d 173, 180 (2d Cir. 2004) (“[A]s the jurisdictional
5 issue goes to statutory and not constitutional jurisdiction, we may exercise
6 hypothetical jurisdiction.”);1 Sumbundu, 602 F.3d at 52.
7 When applying the catchall moral character provision in 8 U.S.C. § 1101(f),
8 the agency is required to determine whether the petitioner’s conduct is “up to the
9 standard of the average citizen.” In re T‐, 1 I. & N. Dec. 158, 159 (B.I.A. 1941);
10 see also In re Guadarrama de Contreras, 24 I. & N. Dec. 625, 627 (B.I.A. 2008).
11 Here, the BIA considered Palaguachi’s positive factors, but found them
12 outweighed by Palaguachi’s “recent, repeated, harassing and violent conduct,”
13 including driving while impaired, “and the disregard of an order of protection,
14 which reflects badly on his good moral character.” CAR at 4–5. On this
Although we may assume hypothetical jurisdiction only in “the narrowest of
1
circumstances,” Ortiz‐Franco v. Holder, 782 F.3d 81, 86 (2d Cir. 2015), this “clearly
meritless claim” is such a circumstance, see Funk v. Belneftekhim, 861 F.3d 354, 371 n.6
(2d Cir. 2017). We further note that the jurisdictional issue was not briefed by
Palaguachi. See Abimbola, 378 F.3d at 180.
6
1 record, we cannot say that the BIA’s re‐evaluation of Palaguachi’s good moral
2 character was not “supported by reasonable, substantial and probative evidence
3 in the record when considered as a whole.” Castro v. Holder, 597 F.3d 93, 99
4 (2d Cir. 2010) (quotation marks omitted).
5 We have considered Palaguachi’s remaining arguments and conclude that
6 they are without merit. For the foregoing reasons, the petition for review is
7 DENIED.
8 FOR THE COURT:
9 Catherine O’Hagan Wolfe, Clerk of Court
7