23-6388 Alvarado Mejia v. Blanche BIA
A095 054 304
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 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 17th day of September, two thousand twenty-six. 4 5 PRESENT: 6 RAYMOND J. LOHIER, JR., 7 Chief Judge, 8 JOHN M. WALKER, JR., 9 MYRNA PÉREZ, 10 Circuit Judges. 11 _____________________________________ 12 13 TULIO ISMAEL ALVARADO MEJIA, 14 Petitioner, 15 16 v. 23-6388 17 NAC 18 TODD BLANCHE, UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent.* 21 _____________________________________
* The Clerk of Court is respectfully directed to amend the case caption as set forth above.
1 FOR PETITIONER: Christopher Worth, The Law Office of 2 Christopher Worth, East Quogue, NY. 3 4 FOR RESPONDENT: Brian M. Boynton, Acting Assistant Attorney 5 General; Jonathan A. Robbins, Assistant Director; 6 Erik R. Quick, Trial Attorney, Office of 7 Immigration Litigation, United States 8 Department of Justice, Washington, DC. 9 10 UPON DUE CONSIDERATION of this petition for review of a Board of
11 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND 12 DECREED that the petition for review is DISMISSED. 13 Petitioner Tulio Ismael Alvarado Mejia, a native and citizen of El Salvador, seeks 14 review of a March 24, 2023 decision of the BIA denying his motion to reopen to pursue 15 adjustment of status or present additional evidence in support of his application for 16 cancellation of removal. In re Alvarado, No. A 095 054 304 (B.I.A. Mar. 24, 2023). We 17 assume the parties’ familiarity with the underlying facts and procedural history. 18 Our review is limited to the denial of reopening. See Ke Zhen Zhao v. U.S. Dep’t of 19 Just., 265 F.3d 83, 89–90 (2d Cir. 2001). 1 “[I]n cases in which the ultimate grant of relief is 20 discretionary,” the BIA may properly deny reopening if it determines that, even if 21 reopening were otherwise warranted, “the movant would not be entitled to the
1 The 30-day deadline for a petition is not jurisdictional, see Riley v. Bondi, 606 U.S. 259, 272–77 (2025), but Alvarado Mejia does not directly challenge the BIA’s 2021 decision affirming the immigration judge’s (“IJ’s”) original finding of removability and denial of cancellation.
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1 discretionary grant of relief.” INS v. Abudu, 485 U.S. 94, 105 (1988). Both cancellation of 2 removal and adjustment of status are discretionary relief; that is, even when an applicant 3 is eligible for the relief, the agency may determine the applicant does not merit the relief 4 as a matter of discretion. See Wilkinson v. Garland, 601 U.S. 209, 212–13 (2024) (cancellation 5 claim involves two determinations: whether the applicant satisfies statutory eligibility 6 criteria, and whether to exercise discretion favorably); Wallace v. Gonzales, 463 F.3d 135, 7 137 (2d Cir. 2006) (same for adjustment of status). Here, the BIA concluded that—even if 8 Alvarado Mejia’s motion to reopen were timely—adjustment of status and cancellation 9 of removal would be denied as a matter of discretion. 10 Our jurisdiction to review the denial of reopening to pursue cancellation of 11 removal or adjustment of status is limited to colorable constitutional claims and questions 12 of law, which we review de novo. See 8 U.S.C. § 1252(a)(2)(B)(i), (D) (limiting review of 13 the denial of cancellation of removal or adjustment of status to constitutional claims and 14 questions of law); Luna v. Holder, 637 F.3d 85, 102 (2d Cir. 2011) (holding that 15 constitutional claims and questions of law raised in petition for review of denial of 16 reopening are reviewed de novo); Barco-Sandoval v. Gonzales, 516 F.3d 35, 40–41 (2d Cir. 17 2008) (for jurisdiction to attach, legal or constitutional arguments must be “colorable”). 18 A question of law may arise when the agency applies the wrong legal standard or 19 overlooks or seriously mischaracterizes evidence. See Argueta v. Holder, 617 F.3d 109, 112–
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1 13 (2d Cir. 2010) (petitioner’s “argument that the IJ applied the wrong legal standard in 2 exercising his discretion” by considering an improper factor in discretionary denial of 3 cancellation presented a reviewable question of law); Mendez v. Holder, 566 F.3d 316, 323 4 (2d Cir. 2009) (agency committed error of law when it “totally overlooked” important 5 facts relevant to eligibility requirement and “seriously mischaracterized” others). But in 6 the context of discretionary review, we lack jurisdiction to review factual findings or the 7 weighing of positive and negative factors. Patel v. Garland, 596 U.S. 328, 347 (2022); 8 Argueta, 617 F.3d at 113. 9 Contrary to the Government’s argument that Alvarado Mejia has not challenged 10 the BIA’s determination that a favorable exercise of discretion was not merited, Alvarado 11 Mejia argues that the BIA erred in that determination by overstating his criminal history 12 and overlooking evidence of rehabilitation, and that another negative discretionary 13 factor—his prior misrepresentations to the IJ—was the result of ineffective assistance of 14 counsel. Accordingly, the issue is whether these arguments present colorable 15 constitutional claims or questions of law over which we have jurisdiction. See Xiao Ji Chen 16 v. U.S. Dep’t of Just., 471 F.3d 315, 329 (2d Cir. 2006); Barco-Sandoval, 516 F.3d at 40–41. We 17 conclude that they do not. 18 The BIA neither overlooked nor seriously mischaracterized the evidence relating 19 to Alvarado Mejia’s criminal history. The BIA explained that Alvarado Mejia’s three
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1 drunk-driving convictions were a serious adverse factor, and that his disorderly conduct 2 conviction also weighed against him. It accurately stated that the disorderly conduct 3 conviction stemmed from an arrest for criminal possession of a weapon. And it expressly 4 considered Alvarado Mejia’s rehabilitation as a positive factor. 5 Similarly, in considering Alvarado Mejia’s admitted failure to disclose to the IJ 6 some convictions and his daughter’s travel to El Salvador (at a time when he was arguing 7 that she would suffer exceptional and extremely unusual hardship if she followed him to 8 El Salvador upon his removal), the BIA considered his assertion that he was following 9 the advice of former counsel. Alvarado Mejia does not point to evidence that was 10 overlooked that would otherwise contradict the BIA’s conclusion that his choice to follow 11 such advice was a serious adverse factor. 12 Alvarado Mejia also asserts that the BIA should reassess whether he timely 13 retracted his false statements. He claims that he retracted the statement before they had 14 been or were about to be exposed. We are not persuaded. The BIA accurately observed 15 that Alvarado Mejia retracted his statements only after the IJ denied relief and the BIA 16 dismissed his appeal. In the BIA’s view, Alvarado Mejia waited to retract his false 17 statements until after he had nothing to lose. See Rvalov v. Garland, No. 20-43, 2022 WL 18 1160622, at *1 (2d Cir. Apr. 20, 2022) (summary order) (“Contrary to [petitioner’s] 19 contention here that he timely retracted his false testimony, the IJ properly found that
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1 [he] did not retract the testimony until after relief was denied.”); Matter of Namio, 14 I. & 2 N. Dec. 412, 414 (B.I.A. 1973) (stating that a “recantation must be voluntary and without 3 delay”). The precedents Alvarado Mejia cites in favor of a different standard, focused on 4 whether the recantation occurred before discovery was imminent, are not binding and 5 do not address recantations in the context of a discretionary determination. See Ruiz-Del- 6 Cid v. Holder, 765 F.3d 635, 640–41 (6th Cir. 2014) (focusing on whether recantation was 7 prompted by imminent discovery in determining effect of recantation on the “good moral 8 character” eligibility factor for cancellation); Costa v. Att’y Gen., 257 F. App’x 543, 546 (3d 9 Cir. 2007) (same); In re Kalombo Kalonji, No. AXXX XX6 168, 2010 WL 673495, at *1 (B.I.A. 10 Jan. 26, 2010) (unpublished) (discussing effect of recantation on removability on ground 11 of “false claim to United States citizenship”). 12 Finally, Alvarado Mejia argues for the first time in his reply brief that the BIA erred 13 in considering as a distinct negative factor that he was previously a recipient of 14 discretionary relief (temporary protected status) that he lost because of his most recent 15 criminal conviction. “[A]rguments not made in an appellant’s opening brief 16 are waived even if . . . raised . . . in a reply brief.” JP Morgan Chase Bank v. Altos Hornos de 17 Mex., S.A. de C.V., 412 F.3d 418, 428 (2d Cir. 2005). But even if the argument were 18 preserved, there is no basis for us to conclude that this is an impermissible factor or that
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1 the BIA completely overlooked the relationship between the revocation and his 2 conviction in weighing those factors. 3 In sum, Alvarado Mejia has not advanced a colorable legal or constitutional 4 challenge to the agency’s determination that adjustment of status and cancellation of 5 removal would be denied as a matter of discretion. See Xiao Ji Chen, 471 F.3d at 329; Barco- 6 Sandoval, 516 F.3d at 40–41. We therefore need not reach the BIA’s alternative conclusion 7 that Alvarado Mejia was not entitled to equitable tolling of the filing deadline for his 8 motion to reopen based on a claim of ineffective assistance of counsel. See INS 9 v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general rule courts and agencies are not 10 required to make findings on issues the decision of which is unnecessary to the results 11 they reach.”). 12 For the foregoing reasons, the petition for review is DISMISSED. All pending 13 motions and applications are DENIED and stays VACATED.
14 FOR THE COURT: 15 Catherine O’Hagan Wolfe, 16 Clerk of Court