Garcia v. Wilkinson

G
     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

                                               2
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

                                                  3
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

                                               4
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”).

                                           5
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.

                                                   6
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

                                           7

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