21-6318 Poku v. Garland BIA Straus, IJ A074 916 914

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 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 25th day of January, two thousand twenty-three.

PRESENT: ROBERT D. SACK, JOSEPH F. BIANCO, EUNICE C. LEE, Circuit Judges. _____________________________________

NANA OWUSU POKU, Petitioner,

v. 21-6318

MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: GLENN L. FORMICA, FORMICA P.C., New Haven, CT.

FOR RESPONDENT: LINDA Y. CHENG, Trial Attorney, Office of Immigration Litigation (Anthony P. Nicastro, Assistant Director, on the brief), for Brian M. Boynton, Principal Deputy Assistant Attorney General, Civil Division, United States Department of Justice, Washington, DC.

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 Nana Owusu Poku, a native and citizen of Ghana,

seeks review of a May 20, 2021 decision of the BIA, affirming a

June 28, 2018 decision of an Immigration Judge (“IJ”), which denied

his application to adjust to lawful permanent resident status. In

re Nana Owusu Poku, No. A074 916 914 (B.I.A. May 20, 2021), aff’g

No. A074 916 914 (Immigr. Ct. Hartford June 28, 2018). 1 We assume

the parties’ familiarity with the underlying facts, the procedural

history, and the issues on appeal, to which we refer only as

necessary to explain our decision.

We have reviewed both the IJ’s and the BIA’s decisions. See

Wangchuck v. Dep’t of Homeland Sec.,

(2d Cir.

2006). Our jurisdiction to review a denial of discretionary

relief, including waivers of inadmissibility and adjustment to

lawful permanent resident status, is limited to colorable

constitutional claims and questions of law. See

(i)(2), 1252(a)(2)(B), (D); Bugayong v. INS,

,

71–72 (2d Cir. 2006). “For jurisdiction to attach, the

1 Poku seeks to adjust his status under the I-130 petition of his adult son, who is a United States citizen.

2 petitioner’s argument must be more than a ‘quarrel[ ] over the

correctness of the factual findings or justification for the

discretionary choices.’” Marquez v. Garland,

(2d Cir. 2021) (quoting Xiao Ji Chen v. U.S. Dep’t of Just.,

(2d Cir. 2006)). Moreover, “we lack jurisdiction to

review any legal argument that is so insubstantial and frivolous

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

Barco-Sandoval v. Gonzales,

(2d Cir. 2007).

The adjustment of status Poku seeks is a “a two-step process,

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

the adjustment, and second, an exercise of discretion by the

Attorney General as to whether to grant such relief.” Singh v.

Gonzales,

(2d Cir. 2006) (internal quotation

marks and citation omitted). Because, as Poku acknowledges, he

previously committed multiple immigration frauds, he is

inadmissible. See

(a)(6)(C)(i). Nevertheless, the

agency has the discretion to waive that basis of inadmissibility

if the noncitizen demonstrates that “refusal of admission to the

United States . . . would result in extreme hardship” to certain

qualifying relatives.

§ 1182(i)(1).

The agency found there was “no doubt that [Poku] . . . ha[d]

met his burden of proof to show extreme hardship” based on the

impact of his removal on his legal permanent resident spouse and

their teenage United States citizen son, who had been diagnosed

3 with autism. Certified Administrative Record (“CAR”) at 71.

However, in what the IJ described as a “very difficult decision,”

id. at 73, the agency denied Poku’s adjustment of status as a

matter of discretion because his history of immigration fraud

outweighed his positive equities. As set forth below, Poku’s

claims of constitutional and legal error are not colorable and are

therefore insufficient to invoke this Court’s jurisdiction to

review the agency’s denial of discretionary relief.

Poku argues that the agency violated his due process rights

by relying on what Poku surmised were notes from a prior bond

proceeding that were not part of the administrative record. Poku

primarily takes issue with the IJ’s reference to his “false

testimony [at the bond hearing] to the court about who [he is]

living with, despite the fact that he[] told the court today that

he’s been living with his wife since she arrived in 2001.” Id. at

83. However, “[p]arties claiming denial of due process in

immigration cases must, in order to prevail, allege some cognizable

prejudice fairly attributable to the challenged process.” Garcia-

Villeda v. Mukasey,

(2d Cir. 2008) (internal

quotation marks and citations omitted). Here, even assuming

arguendo it was error for the agency to rely on testimony from the

bond hearing, Poku “fails to demonstrate how the alleged

shortcomings have prejudiced the outcome of his case,”

since

he admitted the same facts on the record in his removal

4 proceedings. For example, he acknowledged that he told an

immigration officer that he was living together with his wife even

though it “wasn’t true.” CAR at 148–49. Therefore, because of

the absence of any cognizable prejudice from the alleged procedural

error, this claim provides no constitutional basis for this Court’s

exercise of jurisdiction. See Carcamo v. U.S. Dep’t of Just.,

(2d Cir. 2007) (“[Petitioner’s] talismanic invocation

of the language of due process is insufficient to confer

jurisdiction on this Court, as [petitioner] must allege at least

a colorable constitutional violation.” (internal quotation marks

and citation omitted)).

Poku also argues that the agency failed to issue a fully

reasoned decision or articulate the legal standard on which the

decision was based. The agency may commit legal error if its

discretionary decision “was made without rational justification,”

Xiao Ji Chen,

, and “we require a certain minimum

level of analysis from the IJ and BIA opinions,” Poradisova v.

Gonzales,

(2d Cir. 2005). Poku’s argument finds

no support in the record. The IJ cited the adjustment statute,

noted the requirements for showing both eligibility and that a

favorable exercise of discretion was warranted, referenced the

extreme hardship requirement for a fraud waiver, and considered

the positive and negative factors relevant to the exercise of

discretion. Moreover, Poku ignores the BIA’s incorporation by

5 reference of its own precedent, including Matter of Silva-Trevino,

, 836–37 (BIA 2016), which the BIA noted

“discuss[es] the framework for evaluating discretionary

determinations.” CAR at 3. In doing so, the BIA “agree[d] with

the Immigration Judge that [Poku] did not warrant adjustment of

status as a matter of discretion because his lengthy history of

immigration fraud outweighs the positive factors in his case.”

The BIA, like the IJ, then specifically discussed the positive

and negative factors. 2 See

at 3–4. In short, because it is

clear from the record that the agency both articulated and applied

the correct legal standard, Poku’s argument fails to raise a

reviewable “question of law.” See Gui Yin Liu v. INS,

, 720–21 (2d Cir. 2007) (per curiam). In essence, Poku merely

challenges the agency’s fact-finding and balancing of the

discretionary factors, neither of which we have jurisdiction to

review. See Patel v. Garland,

, 1622–23 (2022).

2 Poku also seems to claim that the agency did not properly articulate the standard for the fraud waiver under

(i). As a threshold matter, Poku waived this argument by not presenting it before the BIA. See Foster v. INS,

, 77–78 (2d Cir. 2004) (per curiam). In any event, this contention is meritless. Although the IJ’s oral ruling did not include a statutory citation, the phrase “extreme hardship,” see CAR at 71, is a clear reference to

(i)(1), which establishes the “extreme hardship” standard. Furthermore, such an omission would not constitute a constitutional or legal defect authorizing jurisdiction to review because the agency denied adjustment not based on the absence of an extreme hardship, but rather as a matter of discretion after balancing the positive and negative factors. See INS v. Bagamasbad,

(1976) (per curiam) (“As a general rule courts and agencies are not required to make findings on issues the decision of which is unnecessary to the results they reach.”).

6 Finally, Poku contends that the IJ impermissibly re-

adjudicated his previously approved visa petition, which was filed

by his adult U.S. citizen son who serves in the military. Poku’s

argument is that the IJ was wrong to consider one of his prior

marriages fraudulent because the visa petition would not have been

approved if that were the case. This contention has no merit.

The fact that the visa petition was prima facie approvable based

on Poku’s relationship to his U.S. citizen son is not inconsistent

with a subsequent finding that he did not warrant discretionary

relief because of past immigration fraud that was not considered

as part of the visa petition.

We have considered Poku’s remaining arguments and find them

insufficient to invoke our jurisdiction. For the foregoing

reasons, the petition for review is DISMISSED for lack of

jurisdiction.

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

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