Garcia v. Wilkinson

Opinion

19-2729 Garcia v. Wilkinson BIA

Straus, IJ

A047 369 752

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 2 the Second Circuit, held at the Thurgood Marshall United States 3 Courthouse, 40 Foley Square, in the City of New York, on the 4th 4 day of March, two thousand twenty-one. 5 6 PRESENT: 7 ROBERT A. KATZMANN, 8 SUSAN L. CARNEY, 9 WILLIAM J. NARDINI, 10 Circuit Judges. 11 _____________________________________ 12 13 PAUL ANDRE JUDE MARIANO GARCIA, 14 Petitioner, 15 16 v. 19-2729 17 18 ROBERT M. WILKINSON, ACTING 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 1 21 _____________________________________ 22 23 FOR PETITIONER: Dalia H. Fuleihan, Esq., New Haven 24 Legal Assistance Association, New 25 Haven, CT. 26 27 FOR RESPONDENT: Keith I. McManus, Assistant Director; 28 Rachel L. Browning, Trial Attorney,

1 Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Acting Attorney General Robert M. Wilkinson is automatically substituted for former Acting Attorney General Jeffrey A. Rosen as Respondent.

1 Office of Immigration Litigation, 2 United States Department of Justice, 3 Washington, DC.

4 UPON DUE CONSIDERATION of this petition for review of a Board 5 of Immigration Appeals (“BIA”) decision, it is hereby ORDERED, 6 ADJUDGED, AND DECREED that the petition for review is DENIED. 7 Petitioner Paul Andre Jude Mariano Garcia, a native and 8 citizen of Trinidad and Tobago, seeks review of an August 1, 2019 9 decision of the BIA affirming a February 22, 2019 decision of an 10 Immigration Judge (“IJ”), ordering his removal and denying his 11 application for cancellation of removal. In re Paul Andre Jude 12 Mariano Garcia, No. A 047 369 752 (B.I.A. Aug. 1, 2019), aff’g No. 13 A 047 369 752 (Immig. Ct. Hartford Feb. 22, 2019). We have reviewed 14 both the IJ’s and the BIA’s opinions “for the sake of 15 completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 16 528 (2d Cir. 2006). We assume the parties’ familiarity with the 17 underlying facts and procedural history in this case, to which we 18 refer only as necessary to explain our decision. 19 At the outset, we reject Garcia’s argument that the agency 20 lacked jurisdiction over his removal proceedings because his 21 initial notice to appear (“NTA”) did not include a hearing date or 22 time. In Banegas Gomez v. Barr, 922 F.3d 101 (2d Cir. 2019), we 23 held that “an NTA that omits information regarding the time and 24 date of the initial removal hearing is nevertheless adequate to

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1 vest jurisdiction in the Immigration Court, at least so long as a 2 notice of hearing specifying this information is later sent to the 3 alien,” id. at 112. Garcia received a subsequent notice of hearing 4 specifying the date and time and he appeared at the hearing as 5 directed. As a result, the agency properly had jurisdiction over 6 the removal proceedings. 7 Removability 8 Garcia challenges the agency’s conclusion that he was 9 removable for violating a protective order under 8 U.S.C. 10 § 1227(a)(2)(E)(ii). That subsection provides,

11 [a]ny alien who at any time after admission is enjoined under 12 a protection order issued by a court and whom the court 13 determines has engaged in conduct that violates the portion 14 of a protection order that involves protection against 15 credible threats of violence, repeated harassment, or bodily 16 injury to the person or persons for whom the protection order 17 was issued is deportable. 18 19 8 U.S.C. § 1227(a)(2)(E)(ii). Garcia argues that the BIA erred in

20 not applying the traditional categorical approach to determine 21 whether his state offense matched the ground of removal in 22 § 1227(a)(2)(E)(ii). See Mellouli v. Lynch, 135 S. Ct. 1980, 1986 23 (2015) (“The categorical approach historically taken in 24 determining whether a state conviction renders an alien removable 25 . . . looks to the statutory definition of the offense of 26 conviction . . . .”). Instead, following the BIA’s own precedent, 27 the BIA considered “probative and reliable evidence regarding what

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1 a State court has determined about the alien’s violation” in 2 determining the applicability of § 1227(a)(2)(E)(ii). Matter of 3 Obshatko, 27 I. & N. Dec. 173, 176–77 (BIA 2017); see also Matter 4 of Medina-Jimenez, 27 I. & N. Dec. 399, 401 (BIA 2018). 5 This Court has not determined whether § 1227(a)(2)(E)(ii) is 6 subject to the categorical approach or to a circumstance-specific 7 analysis. The wording of the provision, however, supports the 8 latter, because it requires that the agency or reviewing court 9 assess the “conduct” of the individual rather than the type of 10 conviction. See Nijhawan v. Holder, 557 U.S. 29, 38–39 (2009) 11 (holding that a statute requires “a circumstance-specific 12 approach” where it refers to “conduct involved ‘in’ the commission 13 of the offense of conviction, rather than to the elements of the 14 offense”); Diaz-Quirazco v. Barr, 931 F.3d 830, 841 (9th Cir. 2019) 15 (“[W]hether the alien has been ‘convicted’ is not the critical 16 question of § 1227(a)(2)(E)(ii).”). Cf. Mellouli, 135 S. Ct. at 17 1986 (noting that the categorial approach is appropriate where the 18 “conviction, not conduct, [is] the trigger for immigration 19 consequences”). 20 In light of this, we find no error in the agency’s 21 determination that Garcia is removable. The transcript of Garcia’s 22 plea hearing in state court makes clear that he repeatedly harassed 23 a protected person in violation of a protective order in effect

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1 against him. Accordingly, his violation triggers removability 2 under § 1227(a)(2)(E)(ii). 3 Cancellation of Removal 4 Garcia challenges the agency’s denial of the discretionary 5 relief of cancellation of removal under 8 U.S.C. § 1229b. In 6 reviewing a matter of discretionary relief, our jurisdiction is 7 limited to constitutional claims and questions of law, 8 U.S.C. 8 § 1252(a)(2)(B)(i), (D), which include “the application of a legal 9 standard to undisputed or established facts,” Guerrero-Lasprilla 10 v. Barr, 140 S. Ct. 1062, 1067 (2020). See also Barco-Sandoval 11 v. Gonzales, 516 F.3d 35, 39-40 (2d Cir. 2008). Where a petition 12 “merely quarrels over the correctness of the factual findings or 13 justification for the discretionary choices, . . . the court . . 14 . lack[s] jurisdiction” over the petition for review. Xiao Ji Chen 15 v. U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d Cir. 2006). Garcia 16 raises neither constitutional claims nor questions of law over 17 which we have jurisdiction. 18 Garcia’s arguments all pertain to how the IJ balanced the 19 evidence in reaching its decision. These aspects of the IJ’s 20 decision are beyond our review. See Argueta v. Holder, 617 F.3d 21 109, 113 (2d Cir. 2010) (noting that it is an “unreviewable 22 argument that the IJ balanced improperly those factors that the IJ 23 could consider”).

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1 To begin, Garcia argues that the IJ failed to consider 2 evidence of his positive equities. Even if we could consider this 3 argument, we note that it does not accurately describe the record. 4 The IJ expressly “balance[d] the respondent’s equities against the 5 adverse factors.” Cert. Admin. R. at 137. 6 Garcia further charges that the IJ committed factual error by 7 finding that the petitioner did not show rehabilitation and 8 committed legal error by requiring that he demonstrate such 9 rehabilitation. Again, however, we cannot consider the 10 petitioner’s former argument. The latter argument is belied by 11 the record, which shows that the IJ did not impose such a 12 requirement. Rather, the IJ merely considered lack of 13 rehabilitation as one of several factors relevant to its 14 discretionary analysis. See In re C-V-T-, 22 I. & N. Dec. 7, 11 15 (B.I.A. 1998) (noting that an IJ has broad discretion in what 16 adverse qualities to consider in determining cancellation of 17 removal). 18 Finally, Garcia argues that the IJ did not properly credit 19 evidence that he would face discrimination based on his sexual 20 orientation if he is returned to Trinidad and Tobago. In support, 21 he points to the IJ’s statement that, although it “did not find 22 any evidence of harm to deportees, . . . [Garcia] may certainly 23 face discrimination” upon his return. Cert. Admin. R. at 150.

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1 This argument too asks that we reassess the weight that the IJ 2 assigned to particular evidence, a review that we are not 3 authorized to conduct. See Barco-Sandoval, 516 F.3d at 39-40; see 4 also Argueta, 617 F.3d at 112–13; Carcamo v. U.S. Dep’t of Justice, 5 498 F.3d 94, 98 (2d Cir. 2007). 6 Due Process Claim 7 We reject Garcia’s final argument that he was denied a full 8 and fair hearing at the agency in violation of due process. To 9 establish such a violation, “an alien must show that she was denied 10 a full and fair opportunity to present her claims or that [she 11 was] otherwise deprived . . . of fundamental fairness.” Burger 12 v. Gonzales, 498 F.3d 131, 134 (2d Cir. 2007) (internal quotation 13 marks and citation omitted). Garcia contends that the IJ’s 14 demeanor and questioning style during his hearing revealed the 15 IJ’s predisposition to rule against Garcia. He also contends that 16 the IJ did not meaningfully review the evidence. 17 Upon review, we conclude that the record does not support 18 these characterizations and that the IJ’s questioning and 19 consideration of evidence did not violate due process. 20 For the foregoing reasons, the petition for review is 21 DENIED.

22 FOR THE COURT: 23 Catherine O’Hagan Wolfe, 24 Clerk of Court