Nunez v. Holder , 522 F. App'x 54 ( 2013 )

12-1396
Nunez v. Holder
BIA
Abrams, IJ
A098 070 173
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
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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 7th
day of June, two thousand thirteen.
PRESENT:
PETER W. HALL,
GERARD E. LYNCH,
Circuit Judges,
PAUL A. ENGELMAYER,*
District Judge.
_______________________________________
YEFRIS NUNEZ, AKA JEFFREY NUNEZ, AKA
YEFRIS DE CARMEN CATILLO, AKA YEFRIS
CARMEN DE JESUS, AKA JEFFREY RODRIGUEZ,
AKA YEFRIS RODRIGUEZ, AKA JEFFREY DE
JESUS CATILLO, AKA YEFRIS DE JESUS
CATILLO,
Petitioner,
v. 12-1396
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
*
The Honorable Paul A. Engelmayer, of the United States District Court for the
Southern District of New York, sitting by designation.
FOR PETITIONER: H. Raymond Fasano, Youman, Madeo &
Fasano, LLP, New York, N.Y.
FOR RESPONDENT: Stuart F. Delery, Acting Assistant
Attorney General; David V. Bernal,
Assistant Director; Jesse M. Bless and
Claire Workman, Trial Attorneys, Office
of Immigration Litigation, United States
Department of Justice, Washington, D.C.
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
DENIED.
Yefris Nunez, a native and citizen of the Dominican
Republic, seeks review of a March 8, 2012, decision of the BIA,
reversing the January 19, 2011, decision of Immigration Judge
(“IJ”) Steven R. Abrams granting his applications for a waiver of
inadmissibility under section 212(i) of the Immigration and
Nationality Act (“INA”), and for adjustment of status. In re
Yefris Nunez, No. A098 070 173 (B.I.A. Mar. 8, 2012), rev’g No.
A098 070 173 (Immig. Ct. N.Y. City Jan. 19, 2011). We assume the
parties’ familiarity with the underlying facts and procedural
history in this case.
Under the circumstances of this case, we have considered the
decision of the BIA as well as those portions of the IJ’s
decision affirmed on appeal. See Yan Chen v. Gonzales, 417 F.3d
268, 271 (2d Cir. 2005). The applicable standards of review are
well-established. See 8 U.S.C. § 1252(b)(4)(B); see also Yanqin
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Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009). Because Nunez
challenges the denial of a discretionary waiver, our jurisdiction
is limited to addressing constitutional claims and questions of
law. See 8 U.S.C. §§ 1252(a)(2)(B) (limiting jurisdiction to
review discretionary denials), (D) (exceptions to jurisdictional
limitations), 1182(i)(2) (committing to the Attorney General’s
sole discretion the grant of a waiver under § 1182(i)(1)).
Nunez raises questions of law by arguing that the agency
erroneously reviewed the IJ’s factual findings de novo and
erroneously re-weighed those findings to reach a different
discretionary decision. We are not persuaded. The BIA is
limited to clear error review only with respect to the IJ’s
factual findings. 8 C.F.R. § 1003.1(d)(3)(i). The IJ’s comment
that a waiver would provide Nunez with an opportunity to “turn
his life around” did not amount to a factual finding. It was not
“[a] determination of what will occur in the future and the
degree of likelihood of the occurrence,” Hui Lin Huang v. Holder,
677 F.3d 130, 134 (2d Cir. 2012), but rather a recognition of the
obvious: that a waiver would provide Nunez with the opportunity
to rehabilitate himself in this country. Alternatively, to the
extent the IJ’s comment reflected a finding that Nunez was
willing to obtain employment if granted a waiver, the BIA did
defer to that finding and considered it as a positive equity.
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Nunez also asserts that the BIA accepted the IJ’s factual
findings in name only, because it could not have reached a
different discretionary determination to deny the waiver had it
properly deferred to the IJ’s findings. The BIA, however, does
not err when, as here, acting at its own discretion, it
recalculates the weight afforded to the same factors examined by
the IJ and reaches a different conclusion. See 8 C.F.R.
§ 1003.1(d)(3)(ii) (granting the BIA de novo review over the IJ’s
legal and discretionary determinations); Noble v. Keisler, 505
F.3d 73, 78 (2d Cir. 2007) (finding no error of law in the BIA’s
recalculation of the equities despite accepting the IJ’s factual
findings). Nunez’s argument on this point contests the BIA’s
discretionary weighing of the equities—a determination we are not
permitted to review. See Noble, 505 F.3d at 78.
For the foregoing reasons, the petition for review is DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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