Pavan Vaswani v. Attorney General United States

• Court: Court of Appeals for the Third Circuit
• Decided: November 15, 2022
• Docket: 21-2904
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________

No. 21-2904 ____________

PAVAN MAHESH VASWANI, Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA ____________

On Petition for Review of a Decision of the Board of Immigration Appeals (A089-640-309) Immigration Judge: Emily Farrar-Crockett ____________

Submitted Under Third Circuit L.A.R. 34.1(a) (November 14, 2022)

Before: HARDIMAN, RESTREPO, and PORTER, Circuit Judges.

(Filed: November 15, 2022)

____________

OPINION * ____________

HARDIMAN, Circuit Judge.

Pavan Vaswani petitions for review of a final order of removal issued by the

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Board of Immigration Appeals. Vaswani contends the Board erred when it concluded that

he failed to prove his removal would cause “extreme hardship” to his U.S.-citizen

relatives. Because he challenges only factual and discretionary determinations, we lack

jurisdiction under 8 U.S.C. § 1252(a)(2)(B)(i). We will dismiss Vaswani’s petition.

I

A native and citizen of India, Vaswani entered the United States on a student visa

in 1998 and became a lawful permanent resident in 2007. In 2019, he was convicted of

wire fraud and conspiracy, sentenced to 18 months’ imprisonment, and ordered to pay

$5.8 million in restitution. The Department of Homeland Security charged Vaswani with

removability under 8 U.S.C. § 1227(a)(2)(A)(iii) because his convictions were for

aggravated felonies, and an Immigration Judge found him removable.

Vaswani later applied for adjustment of status under 8 U.S.C. § 1255(a) and

sought a waiver of inadmissibility under 8 U.S.C. § 1182(h), arguing that his removal

would cause extreme hardship to his wife, two children, and mother—all U.S. citizens.

An IJ conducted a hearing to evaluate the extreme-hardship claim, at which Vaswani and

his wife testified. They testified that Vaswani’s wife and children would not relocate to

India if he were removed, though his mother might. They also detailed the risks

Vaswani’s removal would pose to the physical and mental health of his four qualifying

relatives based on his wife’s and mother’s preexisting medical conditions and his two

school-aged children’s anxiety.

The IJ determined that this testimony failed to show hardships that, even when

combined, rise to the level of “extreme hardship.” So Vaswani was statutorily ineligible

2 for adjustment of status. Vaswani appealed to the Board of Immigration Appeals. After

reviewing the hardships Vaswani’s wife, children, and mother would face, the Board

dismissed the appeal, agreeing with the IJ that “the evidentiary record does not

demonstrate that the hardships to [Vaswani’s relatives], when considered individually

and in the aggregate, rise to the level of extreme hardship.” AR 9. Vaswani timely

petitioned for review.

II

Our jurisdiction over petitions for review of Board decisions is governed by 8

U.S.C. § 1252. We lack jurisdiction here because Vaswani challenges the Board’s

discretionary hardship determination without raising any colorable constitutional or legal

claim. See 8 U.S.C. § 1252(a)(2)(B)(i), (D); Cospito v. Att’y Gen., 539 F.3d 166, 170–71

(3d Cir. 2008) (per curiam).

Vaswani challenges only one finding by the Board: that he failed to demonstrate

his removal will result in extreme hardship to his qualifying relatives. Vaswani sought

relief under 8 U.S.C. § 1182(h)(1)(B), which provides the Attorney General discretion to

waive the application of certain criminal inadmissibility grounds if an alien’s removal

“would result in extreme hardship to the [alien’s] United States citizen or lawfully

resident spouse, parent, son, or daughter.” We lack jurisdiction to review challenges to

factual or discretionary decisions regarding § 1182(h) extreme-hardship determinations, 8

U.S.C. § 1252(a)(2)(B)(i); Patel v. Garland, 142 S. Ct. 1614, 1627 (2022), and retain

only the “narrowly circumscribed” jurisdiction under § 1252(a)(2)(D) to review

“colorable constitutional claims or questions of law,” Cospito, 539 F.3d at 170 (internal

3 quotation marks and citation omitted).

Vaswani raises no colorable constitutional or legal claim; he challenges only the

Agency’s factfinding and exercise of discretion. This challenge fails for the same reasons

we explained in Cospito. See 539 F.3d at 170–71. There, we held that we lacked

jurisdiction over a petition that argued the Agency gave insufficient weight to certain

evidence, ignored other evidence, failed to adequately consider the emotional impact of

removal, and evaluated hardships individually rather than jointly. Cospito, 539 F.3d at

170. Vaswani’s arguments that the Agency failed to “aggregate the ordinary hardships to

determine if they equal a determination of extreme hardship,” Vaswani Br. 10, and

“grossly misapplied the applicable legal standard,” Vaswani Br. 22, are indistinguishable

from those in Cospito.

Vaswani’s framing on appeal—purporting to dispute the Board’s “statutory

interpretation of the standard for extreme hardship” and alleging that the Board’s

“misapplication of the legal standard in question also constitutes a violation of due

process,” Vaswani Br. 1—cannot save his petition. Vaswani “may not dress up a claim

with legal clothing to invoke this Court’s jurisdiction.” Hernandez-Morales v. Att’y Gen.,

977 F.3d 247, 249 (3d Cir. 2020) (internal quotation marks and citation omitted); see also

Cospito, 539 F.3d at 170 (“A party cannot confer jurisdiction on this Court where none

exists simply by attaching a particular label to the claim raised in a petition for review.”).

Here, both the Board and IJ invoked the correct rule in concluding that he failed to show

the hardships, “when considered individually and in the aggregate, rise to the level of

extreme hardship.” See AR 9 (emphasis added); AR 79. Vaswani faults the Agency for

4 failing to properly apply the asserted aggregation rule, which calls into question only the

Agency’s factfinding and discretion.

For these reasons, we will dismiss the petition for review.