Li v. Garland

L
     20-301
     Li v. Garland
                                                                          BIA
                                                                     Horton, IJ
                                                                  A214 624 045
                          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
 2   for the Second Circuit, held at the Thurgood Marshall
 3   United States Courthouse, 40 Foley Square, in the City of
 4   New York, on the 13th day of May, two thousand twenty-one.
 5
 6   PRESENT:
 7            JON O. NEWMAN,
 8            MICHAEL H. PARK,
 9            STEVEN J. MENASHI,
10                 Circuit Judges.
11   _____________________________________
12
13   ZENGKUI LI, AKA ZENG KUI LI,
14            Petitioner,
15
16                   v.                                  20-301
17
18   MERRICK B. GARLAND, UNITED
19   STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                 Jean Wang, Wang Law Office, PLLC,
24                                   Flushing, NY.
25
26   FOR RESPONDENT:                 Ethan P. Davis, Acting Assistant
27                                   Attorney General; Anthony C. Payne,
28                                   Assistant Director; Colette J.
29                                   Winston, Trial Attorney, Office of
 1                                    Immigration Litigation, United
 2                                    States Department of Justice,
 3                                    Washington, DC.

 4       UPON DUE CONSIDERATION of this petition for review of a

 5   Board of Immigration Appeals (“BIA”) decision, it is hereby

 6   ORDERED, ADJUDGED, AND DECREED that the petition for review

 7   is DENIED in part and DISMISSED in remaining part.

 8       Petitioner Zengkui Li, a native of the People’s Republic

 9   of China and a citizen of Canada, seeks review of a January

10   21, 2020 decision of the BIA affirming an August 21, 2019

11   decision    of    an    Immigration      Judge     (“IJ”)     denying   his

12   application      for   adjustment   to    lawful    permanent     resident

13   status.    In re Zengkui Li, No. A 214 624 045 (B.I.A. Jan 21,

14   2020), aff’g No. A 214 624 045 (Immig. Ct. N.Y.C. Aug 21,

15   2019).      We    assume   the    parties’       familiarity     with   the

16   underlying facts and procedural history.

17       We have reviewed the IJ’s decision as supplemented by

18   the BIA.     See Yan Chen v. Gonzales, 

417 F.3d 268

, 271 (2d

19   Cir. 2005).       The agency may adjust the status of certain

20   aliens with immediately available immigrant visas to that of

21   lawful     permanent    residents.         See     8 U.S.C.     § 1255(a).

22   “[A]djustment of status [is] . . . a two-step process,

23   involving first, proof of an alien’s statutory eligibility

                                         2
 1   for the adjustment, and second, an exercise of discretion by

 2   the Attorney General as to whether to grant such relief.”

 3   Singh v. Gonzales, 

468 F.3d 135

, 138 (2d Cir. 2006) (internal

 4   quotation marks omitted).       The agency concluded that Li was

 5   eligible to adjust but that he did not merit adjustment as a

 6   matter of discretion.      In determining whether an alien should

 7   be permitted to adjust to lawful status as a matter of

 8   discretion, the agency weighs the alien’s positive attributes

 9   against any negative factors.         See Wallace v. Gonzales, 463

10 F.3d 135

, 137-39 (2d Cir. 2006); Matter of Arai, 13 I&N Dec.

11   494, 496 (B.I.A. 1970).

12       Our     jurisdiction   to   review    the   agency’s   denial    of

13   adjustment of status is limited to colorable constitutional

14   claims and questions of law.          See 8 U.S.C. § 1252(a)(2)(B),

15   (D); Guyadin v. Gonzales, 

449 F.3d 465

, 468-69 (2d Cir. 2006).

16   We review constitutional claims and questions of law de novo.

17   Pierre v. Holder, 

588 F.3d 767

, 772 (2d Cir. 2009).               When

18   assessing      jurisdiction,     we       “study    the       arguments

19   asserted . . .    to   determine,     regardless   of   the   rhetoric

20   employed in the petition, whether it merely quarrels over the

21   correctness of the factual findings or justification for the

22   discretionary choices, in which case the court would lack

                                       3
 1   jurisdiction or whether it instead raises a ‘constitutional

 2   claim’ or ‘question of law,’ in which case the court could

 3   exercise jurisdiction to review those particular issues.”

 4   Xiao Ji Chen v. U.S. Dep’t of Justice, 

471 F.3d 315

, 329 (2d

 5   Cir. 2006); see also Barco-Sandoval v. Gonzales, 

516 F.3d 35

,

 6   40-41 (2d Cir. 2008).

 7       We deny the petition as to Li’s due process claims.             Li

 8   argues that the IJ violated due process by conducting the

 9   hearing by videoteleconference (“VTC”).           The use of VTC in

10   immigration    proceedings    is    permissible    as   long   as   it

11   “accord[s]     with    the    constitutional      requirements      of

12   the Due Process Clause.”      Aslam v. Mukasey, 

537 F.3d 110

, 115

13   (2d Cir. 2008).     To establish a due process claim, the alien

14   must show that he was denied the opportunity to be heard “in

15   a meaningful manner,” Burger v. Gonzales, 

498 F.3d 131

, 134

16   (2d Cir. 2007), and that the “alleged shortcomings have

17   prejudiced    the   outcome   of   his   case,”   Garcia-Villeda    v.

18   Mukasey, 

531 F.3d 141

, 149 (2d Cir. 2008).

19       Li first contends that the IJ used VTC without obtaining

20   his consent, noting that he twice objected to the use of VTC.

21   His argument misses the mark.            The statute distinguishes

22   between video and telephone conferencing and requires consent

                                        4
 1   only for the use of the latter.    See 8 U.S.C. § 1229a(b)(2)(B)

 2   (“An evidentiary hearing on the merits may only be conducted

 3   through a telephone conference with the consent of the alien

 4   involved after the alien has been advised of the right to

 5   proceed in person or through video conference.”).

 6       Li next contends that the BIA applied the wrong legal

 7   standard by analyzing whether the use of VTC was “facially

 8   unfair” rather than whether he had an opportunity to be heard.

 9   Li mischaracterizes the BIA’s language.     While the BIA noted

10   that the use of VTC “does not render an immigration hearing

11   facially unfair,” it went on to state that due process in the

12   immigration context requires a full and fair hearing with a

13   meaningful opportunity to be heard.      The BIA then dismissed

14   the due process claim because Li failed to explain how the

15   use of VTC denied him a full and fair hearing or prevented

16   the IJ from fairly considering his case.

17       Li further argues his due process rights were violated

18   because there were repeated technical problems with the VTC,

19   leading the IJ to reschedule his hearing three times.          Li

20   claims that he suffered prejudice because the VTC failures

21   inhibited   the   IJ’s   ability   to   analyze   his   nonverbal

22   communication and caused many disruptions in his testimony,

                                    5
 1   which prevented the IJ from fairly assessing his credibility.

 2   Li fails to establish prejudice because the IJ’s adverse

 3   credibility determination was not based on nonverbal cues.

4    Rather, the IJ found Li not credible because his testimony

5    was   “vague,    evasive,       and    contradictory.”           Li   did   not

6    demonstrate that an in-person hearing would have remedied

 7   these defects in his testimony.

 8         Li also argues that the agency violated his due process

 9   rights by relying on an Interpol Red Notice stating that Li

10   is wanted for prosecution in China for illegally trafficking

11   38 people to England.         He alleges that the notice contained

12   factual errors and was not relevant to his eligibility to

13   adjust status.       Li has not identified an error of law in the

14   admission of the notice.              The Federal Rules of Evidence do

15   not   apply     in    removal     proceedings        and      “[e]vidence    is

16   admissible provided that it does not violate the alien’s right

17   to due process of law.”               Zhen Nan Lin v. U.S. Dep’t of

18   Justice, 

459 F.3d 255

, 268 (2d Cir. 2006).                    Due process is

19   satisfied      “if    the   evidence        is    probative     and   its   use

20   is fundamentally fair, fairness in this context being closely

21   related   to    the    reliability          and   trustworthiness      of   the

22   evidence.”      

Aslam, 537 F.3d at 114

(internal quotation marks

                                             6
 1   omitted).

 2         Li argues that the notice is unreliable because it is

 3   not directly from the Chinese government.         While an Interpol

 4   notice is not a formal international arrest warrant, it is

 5   reliable when offered “for what it purports to be—namely, a

 6   request by a member country . . . to provisionally arrest a

 7   specifically     identified   person . . .    pending    extradition

 8   based on a valid national arrest warrant for a crime that is

9    not political in nature.”      Matter of W-E-R-B-, 27 I&N Dec.

10   795, 798–99 (B.I.A. 2020).

11         Li also argues that the notice contained factual errors.

12   But the agency declined to exercise its discretion because it

13   found Li not to be credible based on his vague and evasive

14   responses to questions about the existence of the notice.

15         Thus, Li’s claim that the notice was not relevant to his

16   adjustment application also fails because his credibility is

17   relevant to whether adjustment is warranted as a matter of

18   discretion.    See Matter of Marin, 16 I&N Dec. 581, 584 (B.I.A.

19   1978) (holding that, in exercising its discretion, the agency

20   can   consider   adverse   factors   such    as   “the   nature   and

21   underlying circumstances of the exclusion ground at issue,

22   the presence of additional significant violations of this

                                      7
 1   country’s    immigration   laws,   the   existence   of   a   criminal

 2   record and, if so, its nature, recency, and seriousness, and

 3   the presence of other evidence indicative of a respondent’s

 4   bad character or undesirability as a permanent resident of

 5   this country”).

 6          Finally, Li failed to establish prejudice because the

 7   agency did not rely solely on the notice but also noted Li’s

 8   evasiveness on other issues including his travel in and out

 9   of Canada and to Europe.       See 

Garcia-Villeda, 531 F.3d at

10

  149.

11          We dismiss the petition in remaining part to the extent

12   Li challenges the adverse credibility determination or the

13   agency’s weighing of his equities.       He argues that he was not

14   evasive in response to questions, that the IJ gave undue

15   weight to his lack of knowledge about the Interpol notice,

16   and that he did not intend to be evasive when he gave vague

17   testimony.    Further, Li argues that his purported evasiveness

18   was in response to questions regarding nonmaterial issues

19   that the IJ should not have considered when assessing his

20   credibility.    We do not have jurisdiction to review these

21   arguments because Li “merely quarrels over the correctness of

22   the factual findings or justification for the discretionary

                                        8
1   choices.”     Xiao Ji 

Chen, 471 F.3d at 329

; see also Xiu Xia

2   Lin v. Mukasey, 

534 F.3d 162

, 165–66 (2d Cir. 2008) (adverse

3   credibility     determination    are   factual   determinations);

4   

Guyadin, 449 F.3d at 468-69

.

5       For the foregoing reasons, the petition for review is

6   DENIED in part and DISMISSED in remaining part.

7                                   FOR THE COURT:
8                                   Catherine O’Hagan Wolfe,
9                                   Clerk of Court




                                     9

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