Mansaray v. Barr ( 2019 )

17-1548
Mansaray v. Barr
BIA
A090 347 386
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 8th day of July, two thousand nineteen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 GERARD E. LYNCH,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 LANSANA MANSARAY,
14 Petitioner,
15
16 v. 17-1548
17 NAC
18 WILLIAM P. BARR, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Marc Reiter, Esq., Pittsburgh,
24 PA.
25
26 FOR RESPONDENT: Chad A. Readler, Acting Assistant
27 Attorney General; Kohsei Ugumori,
28 Senior Litigation Counsel; David
29 Kim, Trial Attorney, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 Washington, DC.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DISMISSED.
5 Petitioner Lansana Mansaray, a native and citizen of
6 Sierra Leone, seeks review of an April 11, 2017, decision of
7 the BIA denying his motion to reopen. In re Lansana Mansaray,
8 No. A 090 347 386 (B.I.A. Apr. 11, 2017). We assume the
9 parties’ familiarity with the underlying facts and procedural
10 history in this case.
11 “We review the denial of motions to reopen immigration
12 proceedings for abuse of discretion, mindful that motions to
13 reopen ‘are disfavored.’” Ali v. Gonzales, 448 F.3d 515, 517
14 (2d Cir. 2006) (quoting INS v. Doherty, 502 U.S. 314, 322-23
15 (1992)). There is a one-year deadline for motions to reopen
16 removal proceedings to apply for lawful immigrant status
17 based on a Violence Against Women Act (“VAWA”) visa self-
18 petition filed by an alien physically present in the United
19 States. 8 U.S.C. § 1229a(c)(7)(C)(iv). The parties do not
20 dispute that Mansaray’s motion to reopen was untimely.
21 However, the BIA has discretion to “waive this time limitation
22 in the case of an alien who demonstrates extraordinary
2
1 circumstances or extreme hardship to the alien’s child.” 8
2 U.S.C. § 1229a(c)(7)(C)(iv)(III).
3 Pursuant to 8 U.S.C. § 1252(a)(2)(B), “no court shall
4 have jurisdiction to review . . . (ii) any other decision
5 or action of the Attorney General . . . the authority for
6 which is specified under this subchapter to be in the
7 discretion of the Attorney General.” Waiver of the time
8 limitation for battered spouses is specified to be “in the
9 Attorney General’s discretion.” 8 U.S.C.
10 § 1229a(c)(7)(C)(iv)(III). Furthermore, the use in
11 § 1252(a)(2)(B)(ii)of the term “‘this subchapter’ refers to
12 subchapter II of Chapter 12 of Title 8 of the United States
13 Code, which includes §§ 1151-1381.” Sanusi v. Gonzales,
14 445 F.3d 193, 198 (2d Cir. 2006). Accordingly, our
15 jurisdiction to review the BIA’s decision on denying a
16 waiver of the time limitation is limited to “constitutional
17 claims or questions of law.” 8 U.S.C. § 1252(a)(2)(B),
18 (D). We dismiss the petition because Mansaray has not
19 raised a colorable constitutional claim or question of law.
20 To invoke our jurisdiction, any constitutional claim or
21 question of law must be “colorable.” Barco-Sandoval v.
22 Gonzales, 516 F.3d 35, 40 (2d Cir. 2008) (“[W]e lack
3
1 jurisdiction to review any legal argument that is so
2 insubstantial and frivolous as to be inadequate to invoke
3 federal-question jurisdiction.”). The agency may commit
4 legal error when its discretionary decision “is made without
5 rational justification,” Xiao Ji Chen v. U.S. Dep’t of
6 Justice, 471 F.3d 315, 329 (2d Cir. 2006), and its fact-
7 finding may be flawed by an error of law when “facts important
8 to [the discretionary] determination . . . have been totally
9 overlooked and others have been seriously mischaracterized,”
10 Mendez v. Holder, 566 F.3d 316, 323 (2d Cir. 2009).
11 The BIA’s written decision as to its discretionary
12 choice is not without “rational justification” because it
13 discussed and did not overlook the relevant evidence. The
14 BIA reviewed statements from Mansaray’s friends and his
15 pastor and a letter from a caseworker for Mansaray’s sons,
16 and acknowledged a police complaint relating to Mansaray’s
17 wife. The BIA also acknowledged Mansaray’s letter alleging
18 that he and his children had been abused by his wife and that
19 his conviction for endangering the welfare of children was
20 based on lies and was a result of absent-mindedness. The BIA
21 found that Mansaray’s criminal conviction was relevant to its
22 discretionary determination and explained that it declined to
4
1 credit Mansaray’s allegations about the conviction because
2 Mansaray had pleaded guilty. Because the BIA considered all
3 of the evidence and gave a rational explanation for its
4 decision, Mansaray has not raised a colorable question of
5 law, and we lack jurisdiction to further review the BIA’s
6 discretionary determination not to waive the time limitation
7 for the motion to reopen. See 8 U.S.C.
8 § 1229a(c)(7)(C)(iv)(III).
9 For the foregoing reasons, the petition for review is
10 DISMISSED.
11 FOR THE COURT:
12 Catherine O’Hagan Wolfe,
13 Clerk of Court
5