11-79
Lima v. Holder
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 6th day of December, two thousand eleven.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 JON O. NEWMAN,
9 GERARD E. LYNCH,
10 Circuit Judges.
11
12 - - - - - - - - - - - - - - - - - - - -X
13 JOSE B. LIMA,
14 Petitioner,
15
16 -v.- 11-79
17
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 - - - - - - - - - - - - - - - - - - - -X
22
23 FOR PETITIONER: Anne Pilsbury, Brooklyn, New
24 York.
25
26 FOR APPELLEES: Tony West, Assistant Attorney
27 General, Civil Division; Cindy
1
1 S. Ferrier, Senior Litigation
2 Counsel; Sunah Lee, Trial
3 Attorney, Office of Immigration
4 Litigation, United States
5 Department of Justice,
6 Washington, D.C.
7
8 UPON DUE CONSIDERATION of this petition for review
9 of a Board of Immigration Appeals (“BIA”) decision, IT IS
10 HEREBY ORDERED, ADJUDGED AND DECREED that the petition for
11 review is DISMISSED.
12
13
14 Jose Brigido Lima, a native and citizen of El Salvador,
15 petitions for review of a BIA decision affirming a ruling by
16 Immigration Judge (“IJ”) Joanna Miller Bukszpan, denying his
17 application for special rule cancellation of removal under
18 the Nicaraguan Adjustment and Central American Relief Act of
19 1997. We assume the parties’ familiarity with the
20 underlying facts, the procedural history, and the issues
21 presented for review.
22
23 The IJ and BIA rejected Lima’s application, finding [i]
24 that Lima did not establish that he was a person of good
25 moral character for the seven years preceding his
26 application, see 8 C.F.R. § 1240.66(b)(2)-(3), and [ii] that
27 in any event, an exercise of discretion in Lima’s favor was
28 not justified. For both determinations, they relied on
29 Lima’s failure to appear to face charges in connection with
30 a 1990 hit-and-run accident in California until 2004, a
31 period spanning almost the entire seven years during which
32 Lima was to demonstrate good moral character. Lima argues
33 that the IJ committed an error of law by overlooking his
34 reasons for absconding and that the BIA committed an error
35 of law by mischaracterizing his alleged efforts to resolve
36 the charges.
37
38 [1] Standard of Review
39 No court has jurisdiction to review discretionary
40 determinations of the BIA, including cancellation of
41 removal, 8 U.S.C. § 1229(b), except to the extent that the
42 petition raises a constitutional claim or question of law. 8
43 U.S.C. § 1252(a)(2)(B)(i), (2)(D); see Argueta v. Holder,
44 617 F.3d 109, 111-12 (2d Cir. 2010) (per curiam). Agency
45 determinations of moral character made under the catchall
46 provision, 8 U.S.C. § 1101(f)(9), are discretionary
47 determinations which are likewise reviewable for
2
1 constitutional claims or questions of law. See Sumbundu v.
2 Holder, 602 F.3d 47, 55 (2d Cir. 2010) (leaving open the
3 possibility that “moral character determinations under the
4 catchall provision are . . . subject to substantial evidence
5 review”). A petitioner cannot, however,“secure review by
6 using the rhetoric of a ‘constitutional claim’ or ‘question
7 of law’ to disguise what is essentially a quarrel about
8 fact-finding or the exercise of discretion.” Xiao Ji Chen
9 v. United States Dep’t of Justice, 471 F.3d 315, 330 (2d
10 Cir. 2006).
11
12 Moreover, a BIA determination that an applicant for
13 cancellation of removal who meets the basic standards of
14 eligibility will nevertheless be denied that relief in the
15 agency’s discretion is not reviewable. Mendez v. Holder,
16 566 F.3d 316, 320 (2d Cir. 2009).
17
18 [2] Challenge to Agency Factfinding
19 “[T]he agency does not commit an ‘error of law’ every
20 time an item of evidence is not explicitly considered or is
21 described with imperfect accuracy, but where . . . some
22 facts important to the [determination of a criterion for
23 eligibility for cancellation of removal] have been totally
24 overlooked and others have been seriously mischaracterized,
25 we conclude that an error of law has occurred.” Mendez, 566
26 F.3d at 323. In Mendez, a petition for review was granted
27 and remanded to the BIA when the opinion of an IJ made
28 obvious that the IJ had not considered a relevant fact. See
29 Id. at 322-23 (IJ opinion recited that the only evidence
30 regarding an asthma condition was a doctor’s letter, whereas
31 the petitioner testified as to other evidence of the
32 asthma’s severity).
33
34 Here, Lima argues that the IJ overlooked his testimony
35 that the reason he fled the accident was that he feared
36 deportation to El Salvador where his father and brother were
37 killed. Although the IJ acknowledged that Lima
38 “intentionally failed to appear at his criminal hearing in
39 1990 out of fear of being found guilty and deported,” no
40 mention was made of the Salvadoran murders. Lima challenges
41 as a mischaracterization the BIA’s statement that he “did
42 not face the criminal charges until he was arrested during
43 his immigration proceedings in 2004.” Lima testified that
44 he and his sister made efforts to contact the authorities in
45 California in order to deal with the charges.
46
3
1 In any event, the IJ decided both that Lima was
2 ineligible for relief because he lacked good moral character
3 and that Lima’s evasion of prosecution made it impossible to
4 “justify an exercise of discretion in [Lima’s] favor.” That
5 decision was upheld by the BIA, which in addition to
6 upholding the IJ’s finding of lack of good moral character,
7 “also f[ou]nd no error with the Immigration Judge’s
8 discretionary denial of relief.” Since this discretionary
9 decision, which we lack jurisdiction to review, Mendez, 566
10 F.3d at 319-320, independently supports the agency’s denial
11 of relief, we must dismiss the petition for lack of
12 jurisdiction.
13
14
15 We find no merit in Lima’s remaining arguments. For
16 the reasons stated above, the petition for review is
17 DISMISSED.
18
19
20 FOR THE COURT:
21 CATHERINE O’HAGAN WOLFE, CLERK
22
4