Munoz v. Lynch
Opinion
SUMMARY ORDER
Petitioner Osvaldo Omar Munoz, a native and citizen of Argentina, seeks review of a February 10, 2015 decision of the Board of Immigration Appeals (“BIA”) affirming a September 18, 2012 decision of an Immigration Judge (“IJ”) denying Munoz’s application for cancellation of removal and ordering him removed to Argentina. In re Osvaldo Omar Munoz, No. A091 208 376 (B.I.A. Feb. 10, 2015), aff'g No. A091 208 376 (Immig. Ct. N.Y. City Sept. 18, 2012). The IJ concluded that Munoz’s conviction for endangering the welfare of a child was not an aggravated felony, so that he was eligible for cancellation of removal, but the IJ denied cancellation of removal on the ground that endangerment of a child under New York law is categorically child abuse under 8 U.S.C. § 1227(a)(2)(E)(i). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
We review the IJ’s and BIA’s opinions “for the sake of completeness.” Wangchuck v. DHS, 448 F.3d 524, 528 (2d Cir. 2006). We review the IJ’s factual findings for substantial evidence, and questions of law de novo. Yangin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
1. “[W]e require [petitioner to raise issues to the BIA in order to preserve them for judicial review.” Foster v. INS, 376 F.3d 75, 78 (2d Cir. 2004) (internal quotation marks and emphasis omitted). Failure to do so “constitutes a clear jurisdictional bar.” Id. at 77.
Munoz failed to preserve the issue of whether he was removable for a crime of child abuse under 8 U.S.C. § 1227(a)(2)(E)(i). Munoz’s arguments before the IJ focused almost exclusively on whether he was convicted of an aggravated felony, and only briefly mentioned the child abuse charge. His brief to the BIA challenged only the discretionary denial of cancellation of removal. And his notice of appeal stated only that the evidence of his sexual contact with a minor was insuffi *23 cient to show that he committed “abuse of a child.” The BIA deemed this brief reference to abuse of a child insufficient to challenge the IJ’s conclusion that Munoz was removable, and we agree. Accordingly, Munoz’s argument is unexhausted and we lack jurisdiction to consider it. 1
2. We generally lack jurisdiction to review discretionary denial of cancellation of removal, but retain jurisdiction to review constitutional claims or questions of law related to such a denial. 8 U.S.C. § 1252(a)(2)(B)(i), (D). An error of law includes “seriously mischaracteriz[ing]” or “totally overlooking]” evidence in the record. Mendez v. Holder, 566 F.3d 316, 323 (2d Cir. 2009).
The IJ did not “seriously mischaracterize” or “totally overlook” the evidence in the record. Munoz’s argument that the IJ and BIA committed error reduces to him arguing over how the IJ weighed the relevant factors to deny him cancellation of removal. We lack jurisdiction to review the IJ’s balancing of the equities for' such claims. Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 332 (2d Cir. 2006).
Accordingly, and finding no merit in Munoz’s other arguments, we hereby DENY the petition for review.
. We do not suggest that this argument would have had merit had it been made.
Reference
- Full Case Name
- Osvaldo Omar MUNOZ, AKA Juan Manuel Campos, Petitioner, v. Loretta E. LYNCH, United States Attorney General, Respondent
- Cited By
- 1 case
- Status
- Unpublished