Denys Digalov v. William Barr

• Court: Court of Appeals for the Fourth Circuit
• Decided: July 8, 2020
• Docket: 19-1956
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-1956

DENYS OLEKSANDROVYCH DIGALOV,

Petitioner,

v.

WILLIAM P. BARR, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals.

Submitted: June 17, 2020 Decided: July 8, 2020

Before GREGORY, Chief Judge, WILKINSON and RICHARDSON, Circuit Judges.

Petition dismissed in part and denied in part by unpublished per curiam opinion.

Jessica N. Sherman-Stoltz, SHERMAN-STOLTZ LAW GROUP, PLLC, Gum Spring, Virginia, for Petitioner. Joseph H. Hunt, Assistant Attorney General, Linda S. Wernery, Assistant Director, Walter Bocchini, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Denys Oleksandrovych Digalov, a native and citizen of Ukraine, petitions for

review of an order of the Board of Immigration Appeals (Board) sustaining the Department

of Homeland Security’s (DHS) appeal and reversing the immigration judge’s (IJ) grant of

Digalov’s application for cancellation of removal. The Attorney General moved to dismiss

the petition for lack of jurisdiction under 8 U.S.C. § 1252(a)(2)(B)(i) (2018), and we

deferred action on the motion pending briefing. For the reasons set forth below, we now

dismiss in part and deny in part the petition for review.

Under 8 U.S.C. § 1252(a)(2)(B)(i), entitled “Denials of discretionary relief,” “no

court shall have jurisdiction to review any judgment regarding the granting of relief under

section . . . 1229b,” which is the section governing cancellation of removal. * In this case,

the Board denied Digalov’s application for cancellation of removal as a matter of

discretion. Thus, we lack jurisdiction over the petition for review, except to the extent that

Digalov asserts questions of law or constitutional claims that fall within the exception set

forth in 8 U.S.C. § 1252(a)(2)(D) (2018) (stating that no provision limiting judicial review

“shall be construed as precluding review of constitutional claims or questions of law raised

upon a petition for review filed with an appropriate court of appeals”). See Higuit v.

Gonzales, 433 F.3d 417, 419 (4th Cir. 2006) (“[T]he REAL ID Act confers upon courts of

* As set forth in the Attorney General’s brief, we also lack jurisdiction “to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in section . . . 1227(a)(2)(A)(iii), (B), (C), or (D).” 8 U.S.C. § 1252(a)(2)(C) (2018). Digalov was found removable pursuant to 8 U.S.C. § 1227(a)(2)(B)(i) (2018), as an alien convicted of a controlled substance violation.

2 appeal a narrowly circumscribed jurisdiction to resolve constitutional claims or questions

of law raised by aliens seeking discretionary relief.”). On appeal, Digalov claims that he

raises two issues that fall under the jurisdictional exception set forth in 8 U.S.C.

§ 1252(a)(2)(D): (1) the Board committed legal error when it failed to address or consider

that Digalov and his qualifying relatives would suffer hardship if he is removed to Ukraine;

and (2) the Board applied the incorrect standard of review in overturning the IJ’s credibility

finding.

Digalov’s claim that the Board failed to address or consider the potential hardship

to him and his family in weighing the equities in his case does not raise a colorable question

of law under § 1252(a)(2)(D). Instead, he raises a factual challenge to how the agency

considered and weighed the equities in his case. “[C]ourts have recognized arguments such

as that an [IJ] or the [Board] incorrectly weighed evidence, failed to consider evidence or

improperly weighed equitable factors are not questions of law under § 1252(a)(2)(D).”

Jarbough v. Att’y Gen., 483 F.3d 184, 189 (3d Cir. 2007). Additionally, we have

“decline[d] to stretch reason to locate questions of law in what we have properly analyzed

as a factual determination.” Saintha v. Mukasey, 516 F.3d 243, 251 (4th Cir. 2008); see

Higuit, 433 F.3d at 420 (“We are not free to convert every immigration case into a question

of law, and thereby undermine Congress’s decision to grant limited jurisdiction over

matters committed in the first instance to the sound discretion of the Executive.”).

In any event, in weighing the equities and determining whether Digalov was entitled

to relief as a matter of discretion, the Board considered the presence of Digalov’s family

members in the United States as a positive equity. We have recognized that “[t]he Board

3 need not . . . write an exegesis on every contention. What is required is merely that it

consider the issues raised and announce its decision in terms sufficient to enable a

reviewing court to perceive that it has heard and thought and not merely reacted.” Casalena

v. INS, 984 F.2d 105, 107 (4th Cir. 1993) (internal quotation marks omitted). Because

Digalov fails to raise a colorable claim in this regard, we grant the motion to dismiss in

part and dismiss this portion of the petition for review.

Digalov next claims that the Board applied the incorrect standard of review in

overturning the IJ’s adverse credibility finding. “Whether the [Board] has applied the

proper standard of review is a question of law for purposes of our jurisdiction under 8

U.S.C. § 1252(a)(2)(D), which we review de novo.” Duncan v. Barr, 919 F.3d 209, 213

(4th Cir. 2019). Contrary to Digalov’s argument on appeal, however, the Board did not

overturn the IJ’s credibility finding. Although the Board discussed Digalov’s credibility,

it ultimately declined to reach the issue and instead concluded that cancellation of removal

was not warranted in the exercise of discretion. Moreover, based on our review of the

record, we conclude that the Board properly applied the standards of review set forth in 8

C.F.R. § 1003.1(d)(3) (2018). We therefore deny the motion to dismiss in part and deny

this portion of the petition for review.

We dispense with oral argument because the facts and legal contentions are

adequately presented in the materials before this court and argument would not aid the

decisional process.

PETITION DISMISSED IN PART AND DENIED IN PART