20-5-ag
Cruz v. Wilkinson
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 Circuit,
2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
3 City of New York, on the 4th day of March, two thousand twenty-one.
4
5 PRESENT: BARRINGTON D. PARKER,
6 RAYMOND J. LOHIER, JR.,
7 STEVEN J. MENASHI,
8 Circuit Judges.
9 ------------------------------------------------------------------
10 WILDER CRUZ,
11
12 Petitioner,
13 v. No. 20-5-ag
14
15 ROBERT M. WILKINSON, ACTING
16 UNITED STATES ATTORNEY GENERAL, ∗
17
18 Respondent.
19 ------------------------------------------------------------------
∗
Pursuant to Fed. R. App. P. 43(c)(2), Acting Attorney General Robert M.
Wilkinson is automatically substituted for former Attorney General William P.
Barr.
1 FOR PETITIONER: KERRY A. DZIUBEK, Arnold &
2 Porter Kaye Scholer, LLP, New
3 York, NY (Molly Lauterback,
4 Andrea A. Sáenz, on the brief,
5 Brooklyn Defender Services,
6 Brooklyn, NY)
7
8
9 FOR RESPONDENT: GREGORY A. PENNINGTON, JR.,
10 Trial Attorney (Carl McIntyre,
11 on the brief) Assistant Director,
12 Office of Immigration
13 Litigation, United States
14 Department of Justice,
15 Washington, DC
16
17 UPON DUE CONSIDERATION of this petition for review of a Board of
18 Immigration Appeals (BIA) decision, IT IS HEREBY ORDERED, ADJUDGED,
19 AND DECREED that the petition for review is DISMISSED.
20 Petitioner Wilder Cruz, a citizen of Bolivia, seeks review of the BIA’s
21 March and December 2019 decisions denying his application for cancellation of
22 removal. In re Wilder Cruz, No. A 077 942 534 (B.I.A. Dec. 13, 2019); In re Wilder
23 Cruz, No. A 077 942 534 (B.I.A. Mar. 29, 2019). On appeal, Cruz raises three
24 arguments regarding the BIA’s March 2019 decision: first, the BIA erroneously
25 applied a de novo standard of review when it overturned findings of fact of the
2
1 immigration judge (IJ) regarding the nature of Cruz’s conviction for reckless
2 assault of a child; second, the BIA erroneously overturned the IJ’s credibility
3 determination without establishing that the IJ clearly erred; and third, the BIA
4 did not properly consider and weigh all of the evidence in the record. We
5 assume the parties’ familiarity with the underlying facts and procedural history,
6 to which we refer only as necessary to explain our decision to dismiss Cruz’s
7 petition.
8 Our jurisdiction to review the BIA’s discretionary denial of cancellation of
9 removal is limited to constitutional claims and questions of law. 8 U.S.C.
10 § 1252(a)(2)(B)(i), (D); Barco-Sandoval v. Gonzales, 516 F.3d 35, 36 (2d Cir. 2008).
11 A question of law may arise where the BIA overlooked or mischaracterized
12 evidence, see Mendez v. Holder, 566 F.3d 316, 323 (2d Cir. 2009), considered a
13 prohibited factor, see Argueta v. Holder, 617 F.3d 109, 113 (2d Cir. 2010), or
14 abused its discretion by failing to provide a rational justification or by applying
15 the wrong legal standard, see Barco-Sandoval, 516 F.3d at 39. But a petitioner
16 cannot “us[e] the rhetoric of a ‘constitutional claim’ or ‘question of law’ to
3
1 disguise what is essentially a quarrel about fact-finding or the exercise of
2 discretion.” Id.
3 Based on our review of the record, we conclude that Cruz’s arguments that
4 the BIA applied the wrong legal standards upon reviewing the IJ’s decision do
5 not raise genuine legal questions. The BIA did not subject the IJ’s fact-finding to
6 de novo review. It reevaluated the record created by the IJ regarding Cruz’s
7 conviction for reckless assault of a child and his inconsistent statements about the
8 assault and came to a different conclusion about discretionary relief than the IJ,
9 as it was permitted to do. Thus, Cruz raises “a quarrel about fact-finding or the
10 exercise of discretion” that we have no jurisdiction to review. Id. at 39.
11 Even if we had jurisdiction to consider these arguments, we would reject
12 them for the same reason. See 8 C.F.R. § 1003.1(d)(3)(ii) (providing that “[t]he
13 Board may review questions of law, discretion, and judgment and all other issues
14 in appeals from decisions of immigration judges de novo”); see, e.g., Khan v.
15 Gonzales, 495 F.3d 31, 35 (2d Cir. 2007).
16 To the extent that Cruz claims that the BIA erred in its discretionary
17 choices — including in its decision to cite to the text of N.Y. Penal Law § 120.02
4
1 in discussing the seriousness of the offense — we lack jurisdiction over that
2 argument. See, e.g., Noble v. Keisler, 505 F.3d 73, 74 (2d Cir. 2007) (“Because we
3 conclude that the BIA did not reject a finding of fact by the IJ that [petitioner]
4 was rehabilitated, but instead evaluated the nature and extent of the
5 rehabilitation as one equity among many in exercising its discretion, we conclude
6 that the petitioner is, in substance, asking us to [impermissibly] review an
7 exercise of discretion by the BIA.”).
8 Cruz also argues that the BIA ignored evidence of the victim’s recovery
9 and harm that Cruz may suffer in Bolivia. We are not persuaded that the BIA
10 erroneously ignored evidence. Although the BIA did not explicitly reference a
11 medical report regarding the victim’s recovery, it acknowledged the recovery
12 and referenced the page of the IJ’s decision discussing the report. It then
13 concluded that the victim’s recovery did not render the offense less serious. We
14 are not free to reject this conclusion. See Jian Hui Shao v. Mukasey, 546 F.3d 138,
15 169 (2d Cir. 2008) (“[W]e do not demand that the BIA expressly parse or refute
16 on the record each individual argument or piece of evidence offered by the
17 petitioner” (quotation marks omitted)); Xiao Ji Chen v. U.S. Dep’t of Justice, 471
5
1 F.3d 315, 336 n.17 (2d Cir. 2006) (“[W]e presume that [the agency] has taken into
2 account all of the evidence before [it], unless the record compellingly suggests
3 otherwise.”). As for Cruz’s claim that the BIA failed to consider evidence that he
4 would suffer harm in Bolivia, he failed to exhaust this issue before the agency.
5 Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119–20, 124–25 (2d Cir. 2007)
6 (explaining that issue exhaustion is generally mandatory and indicating that one
7 purpose of exhaustion requirement is to give BIA opportunity to correct any
8 errors).
9 We have considered Cruz’s remaining arguments and conclude that they
10 are without merit. For the foregoing reasons, the petition for review is
11 DISMISSED. All pending motions and applications are DENIED and stays
12 VACATED.
13
14 FOR THE COURT:
15 Catherine O’Hagan Wolfe, Clerk of Court
6