Li v. Garland ( 2021 )

20-301
Li v. Garland
BIA
Horton, IJ
A214 624 045
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
2 for the Second Circuit, held at the Thurgood Marshall
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 13th day of May, two thousand twenty-one.
5
6 PRESENT:
7 JON O. NEWMAN,
8 MICHAEL H. PARK,
9 STEVEN J. MENASHI,
10 Circuit Judges.
11 _____________________________________
12
13 ZENGKUI LI, AKA ZENG KUI LI,
14 Petitioner,
15
16 v. 20-301
17
18 MERRICK B. GARLAND, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Jean Wang, Wang Law Office, PLLC,
24 Flushing, NY.
25
26 FOR RESPONDENT: Ethan P. Davis, Acting Assistant
27 Attorney General; Anthony C. Payne,
28 Assistant Director; Colette J.
29 Winston, Trial Attorney, Office of
1 Immigration Litigation, United
2 States Department of Justice,
3 Washington, DC.
4 UPON DUE CONSIDERATION of this petition for review of a
5 Board of Immigration Appeals (“BIA”) decision, it is hereby
6 ORDERED, ADJUDGED, AND DECREED that the petition for review
7 is DENIED in part and DISMISSED in remaining part.
8 Petitioner Zengkui Li, a native of the People’s Republic
9 of China and a citizen of Canada, seeks review of a January
10 21, 2020 decision of the BIA affirming an August 21, 2019
11 decision of an Immigration Judge (“IJ”) denying his
12 application for adjustment to lawful permanent resident
13 status. In re Zengkui Li, No. A 214 624 045 (B.I.A. Jan 21,
14 2020), aff’g No. A 214 624 045 (Immig. Ct. N.Y.C. Aug 21,
15 2019). We assume the parties’ familiarity with the
16 underlying facts and procedural history.
17 We have reviewed the IJ’s decision as supplemented by
18 the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d
19 Cir. 2005). The agency may adjust the status of certain
20 aliens with immediately available immigrant visas to that of
21 lawful permanent residents. See 8 U.S.C. § 1255(a).
22 “[A]djustment of status [is] . . . a two-step process,
23 involving first, proof of an alien’s statutory eligibility
2
1 for the adjustment, and second, an exercise of discretion by
2 the Attorney General as to whether to grant such relief.”
3 Singh v. Gonzales, 468 F.3d 135, 138 (2d Cir. 2006) (internal
4 quotation marks omitted). The agency concluded that Li was
5 eligible to adjust but that he did not merit adjustment as a
6 matter of discretion. In determining whether an alien should
7 be permitted to adjust to lawful status as a matter of
8 discretion, the agency weighs the alien’s positive attributes
9 against any negative factors. See Wallace v. Gonzales, 463
10 F.3d 135, 137-39 (2d Cir. 2006); Matter of Arai, 13 I&N Dec.
11 494, 496 (B.I.A. 1970).
12 Our jurisdiction to review the agency’s denial of
13 adjustment of status is limited to colorable constitutional
14 claims and questions of law. See 8 U.S.C. § 1252(a)(2)(B),
15 (D); Guyadin v. Gonzales, 449 F.3d 465, 468-69 (2d Cir. 2006).
16 We review constitutional claims and questions of law de novo.
17 Pierre v. Holder, 588 F.3d 767, 772 (2d Cir. 2009). When
18 assessing jurisdiction, we “study the arguments
19 asserted . . . to determine, regardless of the rhetoric
20 employed in the petition, whether it merely quarrels over the
21 correctness of the factual findings or justification for the
22 discretionary choices, in which case the court would lack
3
1 jurisdiction or whether it instead raises a ‘constitutional
2 claim’ or ‘question of law,’ in which case the court could
3 exercise jurisdiction to review those particular issues.”
4 Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d
5 Cir. 2006); see also Barco-Sandoval v. Gonzales, 516 F.3d 35,
6 40-41 (2d Cir. 2008).
7 We deny the petition as to Li’s due process claims. Li
8 argues that the IJ violated due process by conducting the
9 hearing by videoteleconference (“VTC”). The use of VTC in
10 immigration proceedings is permissible as long as it
11 “accord[s] with the constitutional requirements of
12 the Due Process Clause.” Aslam v. Mukasey, 537 F.3d 110, 115
13 (2d Cir. 2008). To establish a due process claim, the alien
14 must show that he was denied the opportunity to be heard “in
15 a meaningful manner,” Burger v. Gonzales, 498 F.3d 131, 134
16 (2d Cir. 2007), and that the “alleged shortcomings have
17 prejudiced the outcome of his case,” Garcia-Villeda v.
18 Mukasey, 531 F.3d 141, 149 (2d Cir. 2008).
19 Li first contends that the IJ used VTC without obtaining
20 his consent, noting that he twice objected to the use of VTC.
21 His argument misses the mark. The statute distinguishes
22 between video and telephone conferencing and requires consent
4
1 only for the use of the latter. See 8 U.S.C. § 1229a(b)(2)(B)
2 (“An evidentiary hearing on the merits may only be conducted
3 through a telephone conference with the consent of the alien
4 involved after the alien has been advised of the right to
5 proceed in person or through video conference.”).
6 Li next contends that the BIA applied the wrong legal
7 standard by analyzing whether the use of VTC was “facially
8 unfair” rather than whether he had an opportunity to be heard.
9 Li mischaracterizes the BIA’s language. While the BIA noted
10 that the use of VTC “does not render an immigration hearing
11 facially unfair,” it went on to state that due process in the
12 immigration context requires a full and fair hearing with a
13 meaningful opportunity to be heard. The BIA then dismissed
14 the due process claim because Li failed to explain how the
15 use of VTC denied him a full and fair hearing or prevented
16 the IJ from fairly considering his case.
17 Li further argues his due process rights were violated
18 because there were repeated technical problems with the VTC,
19 leading the IJ to reschedule his hearing three times. Li
20 claims that he suffered prejudice because the VTC failures
21 inhibited the IJ’s ability to analyze his nonverbal
22 communication and caused many disruptions in his testimony,
5
1 which prevented the IJ from fairly assessing his credibility.
2 Li fails to establish prejudice because the IJ’s adverse
3 credibility determination was not based on nonverbal cues.
4 Rather, the IJ found Li not credible because his testimony
5 was “vague, evasive, and contradictory.” Li did not
6 demonstrate that an in-person hearing would have remedied
7 these defects in his testimony.
8 Li also argues that the agency violated his due process
9 rights by relying on an Interpol Red Notice stating that Li
10 is wanted for prosecution in China for illegally trafficking
11 38 people to England. He alleges that the notice contained
12 factual errors and was not relevant to his eligibility to
13 adjust status. Li has not identified an error of law in the
14 admission of the notice. The Federal Rules of Evidence do
15 not apply in removal proceedings and “[e]vidence is
16 admissible provided that it does not violate the alien’s right
17 to due process of law.” Zhen Nan Lin v. U.S. Dep’t of
18 Justice, 459 F.3d 255, 268 (2d Cir. 2006). Due process is
19 satisfied “if the evidence is probative and its use
20 is fundamentally fair, fairness in this context being closely
21 related to the reliability and trustworthiness of the
22 evidence.” Aslam, 537 F.3d at 114 (internal quotation marks
6
1 omitted).
2 Li argues that the notice is unreliable because it is
3 not directly from the Chinese government. While an Interpol
4 notice is not a formal international arrest warrant, it is
5 reliable when offered “for what it purports to be—namely, a
6 request by a member country . . . to provisionally arrest a
7 specifically identified person . . . pending extradition
8 based on a valid national arrest warrant for a crime that is
9 not political in nature.” Matter of W-E-R-B-, 27 I&N Dec.
10 795, 798–99 (B.I.A. 2020).
11 Li also argues that the notice contained factual errors.
12 But the agency declined to exercise its discretion because it
13 found Li not to be credible based on his vague and evasive
14 responses to questions about the existence of the notice.
15 Thus, Li’s claim that the notice was not relevant to his
16 adjustment application also fails because his credibility is
17 relevant to whether adjustment is warranted as a matter of
18 discretion. See Matter of Marin, 16 I&N Dec. 581, 584 (B.I.A.
19 1978) (holding that, in exercising its discretion, the agency
20 can consider adverse factors such as “the nature and
21 underlying circumstances of the exclusion ground at issue,
22 the presence of additional significant violations of this
7
1 country’s immigration laws, the existence of a criminal
2 record and, if so, its nature, recency, and seriousness, and
3 the presence of other evidence indicative of a respondent’s
4 bad character or undesirability as a permanent resident of
5 this country”).
6 Finally, Li failed to establish prejudice because the
7 agency did not rely solely on the notice but also noted Li’s
8 evasiveness on other issues including his travel in and out
9 of Canada and to Europe. See Garcia-Villeda, 531 F.3d at10 149.
11 We dismiss the petition in remaining part to the extent
12 Li challenges the adverse credibility determination or the
13 agency’s weighing of his equities. He argues that he was not
14 evasive in response to questions, that the IJ gave undue
15 weight to his lack of knowledge about the Interpol notice,
16 and that he did not intend to be evasive when he gave vague
17 testimony. Further, Li argues that his purported evasiveness
18 was in response to questions regarding nonmaterial issues
19 that the IJ should not have considered when assessing his
20 credibility. We do not have jurisdiction to review these
21 arguments because Li “merely quarrels over the correctness of
22 the factual findings or justification for the discretionary
8
1 choices.” Xiao Ji Chen, 471 F.3d at 329; see also Xiu Xia
2 Lin v. Mukasey, 534 F.3d 162, 165–66 (2d Cir. 2008) (adverse
3 credibility determination are factual determinations);
4 Guyadin, 449 F.3d at 468-69.
5 For the foregoing reasons, the petition for review is
6 DENIED in part and DISMISSED in remaining part.
7 FOR THE COURT:
8 Catherine O’Hagan Wolfe,
9 Clerk of Court
9