23-6013 Acevedo v. Garland BIA Ruehle IJ A0209 200 702

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 8th day of March, two thousand twenty-four.

PRESENT: DEBRA ANN LIVINGSTON, Chief Judge, RICHARD C. WESLEY, DENNY CHIN, Circuit Judges. _____________________________________

JOEL ESTEBAN ACEVEDO,

Petitioner,

v. 23-6013

MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL,

Respondent. _____________________________________ FOR PETITIONER: Jose Perez, Law Offices of Jose Perez, P.C., Syracuse, NY.

FOR RESPONDENT: Brian M. Boynton, Principal Deputy Assistant Attorney General; Kohsei Ugumori, Senior Litigation Counsel; Nehal H. Kamani, Trial Attorney, Office of Immigration Litigation, 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 Joel Esteban Acevedo, a native and citizen of the Dominican Republic,

seeks review of a December 6, 2022, decision of the BIA affirming a June 25, 2019, decision

of an Immigration Judge (“IJ”) denying his application to adjust to lawful permanent

resident status based on his marriage to a U.S. citizen. In re Joel Esteban Acevedo, No.

A209 200 702 (B.I.A. Dec. 6, 2022), aff’g No. A209 200 702 (Immig. Ct. Buffalo June 25,

2019). We assume the parties’ familiarity with the underlying facts and procedural

history.

We have reviewed the IJ’s decision as supplemented by the BIA. See Yan Chen v.

Gonzales,

(2d Cir. 2005). Our jurisdiction to review the agency’s denial

of discretionary relief, including adjustment of status under

, is limited to 2 “constitutional claims or questions of law.”

(a)(2)(D) (referencing

§

1252(a)(2)(B)(i)); see Patel v. Garland,

(2022) (“Federal courts lack

jurisdiction to review facts found as part of discretionary-relief proceedings under § 1255

and other provisions enumerated in § 1252(a)(2)(B)(i).”); Ud Din v. Garland,

,

421–22 (2d Cir. 2023) (holding that discretionary denials of adjustment of status based on

factual findings are unreviewable). A challenge to the weight of the evidence or

balancing of factors does not raise a question of law. See Argueta v. Holder,

(2d Cir. 2010) (per curiam); Xiao Ji Chen v. U.S. Dep’t of Just.,

, 330–32, 342

(2d Cir. 2006) (holding that petitioner may not “us[e] the rhetoric of a ‘constitutional

claim’ or ‘question of law’ to disguise what is essentially a quarrel about fact-finding or

the exercise of discretion” and that the weight of the evidence is primarily a matter of

agency discretion).

A nonimmigrant, like Acevedo, may adjust to lawful permanent resident status at

the discretion of the Attorney General if he has been admitted to the United States, has

completed an application, is eligible to receive an immigrant visa, is admissible for

permanent residence, and a visa is immediately available.

(a); Matter of

Sesay,

, 438–40 (B.I.A. 2011) (explaining the eligibility requirements for

adjustment of status for fiancé visa holders). Adjustment is a two-step process

3 “involving first, proof of . . . 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). “In making discretionary determinations,

[the agency] balance[s] the equities and the adverse factors presented to decide whether

an alien merits a favorable exercise of discretion.” Matter of Sesay, 25 I. & N. at 443

(citation omitted). “Immigration [j]udges and th[e] Board have wide latitude in

addressing discretion.”

We lack jurisdiction to review the agency’s discretionary denial of adjustment

because Acevedo has not raised a constitutional claim or question of law. See Patel,

; Ud Din, 72 F.4th at 421–22.

First, Acevedo contends that the IJ erroneously found that he had destroyed his

wife’s phones (plural) because the record only reflects that he threw one phone against a

wall. This is not a serious mischaracterization as he concedes that his wife’s written

statement was that he had “broken phones in the past,” she testified he had once thrown

a phone against a wall, and the record reflected that he had attempted to grab a phone

on another occasion. See Mendez v. Holder,

(2d Cir. 2009) (“[T]he agency

does not commit an ‘error of law’ every time an item of evidence is not explicitly

considered or is described with imperfect accuracy . . . .”).

4 Second, he contends that the IJ ignored his acceptance of responsibility and should

have credited his version of events when discrepancies arose in the accounts of several

incidents. The IJ’s conclusion that Acevedo had minimized the incidents in comparison

to his wife’s testimony, thus crediting his wife’s version of events, is exactly the type of

fact-finding and weighing of the evidence that we lack jurisdiction to review. See

Argueta,

; Xiao Ji Chen, 471 F.3d at 330–32, 342. At bottom, Acevedo argues

that the IJ over-emphasized the incidents between him and his wife in weighing the

factors. Such arguments about the weight of evidence and the balancing of factors do

not implicate questions of law. See Argueta,

; Xiao Ji Chen,

.

For the foregoing reasons, the petition for review is DISMISSED. All pending

motions and applications are DENIED and stays VACATED.

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

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