17-2678 Espinal v. Sessions 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.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 29th day of August, two thousand eighteen.

PRESENT: BARRINGTON D. PARKER, PETER W. HALL, RAYMOND J. LOHIER, JR., Circuit Judges. _____________________________________

RAFAEL ERNESTO ESPINAL, AKA RAFAEL E. BETANCOURT, Petitioner, v. No. 17-2678-ag

JEFFERSON B. SESSIONS III, UNITED STATES ATTORNEY GENERAL,

Respondent. _____________________________________

FOR PETITIONER: JM Mariotti, New York, N.Y.

FOR RESPONDENT: Brendan P. Hogan, Trial Attorney, Office of Immigration Litigation, Civil Division, Chad A. Readler, Assistant Attorney General, Song Park, Senior Litigation Counsel, for Jefferson B. Sessions III, United States Attorney General, Washington, D.C. 1 UPON DUE CONSIDERATION of this petition for review of a Board

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

ADJUDGED, AND DECREED that the petition for review is DISMISSED.

Petitioner Rafael Ernesto Espinal, a native and citizen of

the Dominican Republic, seeks review of a July 26, 2017 decision

of the BIA dismissing Espinal’s appeal of an October 3, 2016,

decision of an Immigration Judge (“IJ”) ordering his removal and

denying his applications for relief from removal. In re Rafael

Ernesto Espinal, No. A 073 136 517 (B.I.A. July 26, 2017), aff’g

No. A 073 136 517 (Immig. Ct. N.Y. City Oct. 3, 2016). We assume

the parties’ familiarity with the underlying facts and procedural

history in this case.

Our jurisdiction to review Espinal’s removal order is limited

to “constitutional claims or questions of law,” which we review de

novo.

(a)(2)(D); see

§ 1252(a)(2)(B), (C);

Pierre v. Holder,

(2d Cir. 2009). To invoke our

jurisdiction, such claims must be “colorable.” Barco-Sandoval v.

Gonzales,

(2d Cir. 2008) (“[W]e lack jurisdiction

to review any legal argument that is so insubstantial and frivolous

as to be inadequate to invoke federal-question jurisdiction.”

(citation omitted)). Because the BIA’s decision “closely tracks”

the IJ’s decision, we review both decisions together. See Richmond

v. Holder,

(2d Cir. 2013) (quoting Lecaj v.

Holder,

(2d Cir. 2010)). 2 As an initial matter, Espinal argues that the agency erred in

sustaining the fraud-or-willful-misrepresentation ground of

removability because the record did not reflect that the former

Immigration and Naturalization Service rescinded his lawful

permanent resident (“LPR”) status and because the Government did

not prove by clear and convincing evidence that he had

intentionally misrepresented a material fact during the

adjustment-of-status process. In essence, he argues that he did

not need a waiver pursuant to

(a)(1)(H) because,

absent proof of fraud, he never lost his LPR status and therefore

did not need a waiver to retain it. Regardless of the disposition

of that argument, Espinal conceded removability for aggravated

felony and controlled substance offenses. Accordingly, he is

independently removable on those grounds and requires a waiver

under former § 1182(c). See

(a), 1182(c) (repealed

1996).

Both requested waivers, under §§ 1182(a)(2)(c) (repealed

1996) and 1227(a)(1)(H), are discretionary and involve a two-part

analysis. First, the agency assesses an applicant’s statutory

eligibility for the waiver; second, the agency determines whether

to exercise discretion in the applicant’s favor. See Ahmed v.

Holder,

(2d Cir. 2010) (per curiam); Avendano-

Espejo v. Dep’t of Homeland Sec.,

(2d Cir. 2006) 3 (per curiam). Unlike the question of eligibility, the exercise of

discretion is not reviewable absent an error of law, such as when

the agency overlooks facts or mischaracterizes evidence. See

Mendez v. Holder,

(2d Cir. 2009); see also

(noting that “we lack jurisdiction at the second stage to

review the Attorney General’s decision to grant or deny relief,

made entirely in his discretion”). Because the agency found or

assumed statutory eligibility but concluded that Espinal did not

merit relief as a matter of discretion, we lack jurisdiction to

consider further Espinal’s petition absent a constitutional claim

or question of law regarding the agency’s exercise of discretion.

Espinal argues that the IJ ignored evidence of the equities

that weigh positively in his favor, particularly his family ties

and gainful employment. The agency commits a legal error if it

overlooks facts or mischaracterizes evidence,

, but there

is no such error here. The IJ considered the affidavits from

Espinal’s family, employer, and friends; tax payments; financial

and employment records; and children’s medical documents. Although

Espinal contends that the IJ did not completely and fairly balance

those equities against the negative factors, the IJ’s weighing and

balancing of evidence are precisely the determinations we lack

jurisdiction to review. See

(a)(2)(B)(i); Saloum v.

4 U.S. Citizenship & Immigration Servs.,

, 244 (2d Cir.

2006) (per curiam).

Finally, Espinal’s argument that the IJ reached “speculative

conclusions” about “uncorroborated allegations” of domestic

violence and child abuse “found in medical records dating back to

2009” is a mischaracterization of the record in this case. Espinal

submitted the medical evaluation of his son, which identified a

history of abuse by Espinal. Moreover, the BIA determined that,

even absent this factor, Espinal’s “protracted criminal history”

supported the IJ’s discretionary denial.

For the foregoing reasons, the petition for review is

DISMISSED.

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

5