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.,

,

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,

(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,”

. 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

(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,

, 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,

, 176–77 (BIA 2017); see also Matter

4 of Medina-Jimenez,

(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,

, 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,

(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,

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,

(2020). See also Barco-Sandoval

11 v. Gonzales,

(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,

(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,

(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-,

, 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,

; see

4 also Argueta, 617 F.3d at 112–13; Carcamo v. U.S. Dep’t of Justice,

5

(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,

(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