Santiago v. Barr ( 2020 )

19-3004-ag
Santiago v. Barr
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 for the Second Circuit,
2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
3 New York, on the 2nd day of November, two thousand twenty.
4
5 PRESENT:
6 JOHN M. WALKER, JR.,
7 RAYMOND J. LOHIER, JR.,
8 Circuit Judges,
9 TIMOTHY C. STANCEU, *
10 Judge.
11 _____________________________________
12
13 CONSTANTINO SANTIAGO, AKA
14 CONSTANTINO SANTIAGO-SANTIAGO,
15 Petitioner,
16
17 v. 19-3004-ag
18
19 WILLIAM P. BARR, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Glenn L. Formica, Formica, P.C., New Haven, CT.
* Chief Judge Timothy C. Stanceu, of the United States Court of International Trade,
sitting by designation.
1
2 FOR RESPONDENT: Jeffrey Bossert Clark, Acting Assistant Attorney
3 General, Civil Division; Nancy E. Friedman,
4 Senior Litigation Counsel; Sharon M. Clay, Trial
5 Attorney, Office of Immigration Litigation,
6 United States Department of Justice, Washington,
7 DC.
8 UPON DUE CONSIDERATION of this petition for review of a Board of
9 Immigration Appeals (BIA) decision, it is hereby ORDERED, ADJUDGED, AND
10 DECREED that the petition for review is DISMISSED.
11 Petitioner Constantino Santiago, a native and citizen of Mexico, seeks review of a
12 September 5, 2019 decision of the BIA affirming an April 3, 2019 decision of an
13 Immigration Judge (IJ) denying Santiago’s application for cancellation of removal. We
14 assume the parties’ familiarity with the underlying facts and prior record of
15 proceedings, to which we refer only as necessary to explain our decision to dismiss.
16 We have reviewed the IJ’s decision as supplemented by the BIA. See Wala v.
17 Mukasey, 511 F.3d 102, 105 (2d Cir. 2007). “Obtaining . . . cancellation of removal is a
18 two-step process. First, an alien must prove eligibility by showing that he meets the
19 statutory eligibility requirements. . . . Second, assuming an alien satisfies the statutory
20 requirements, the Attorney General in his discretion decides whether to grant or deny
21 relief.” Rodriguez v. Gonzales, 451 F.3d 60, 62 (2d Cir. 2006) (per curiam); see also 8
22 U.S.C. § 1229a(c)(4)(A). Our jurisdiction to review a denial of discretionary relief is
23 limited to colorable constitutional claims and questions of law. See Barco-Sandoval v.
2
1 Gonzales, 516 F.3d 35, 39–40 (2d Cir. 2008).
2 Santiago does not raise a colorable question of law. He argues that the agency
3 does not have the authority to deny cancellation of removal as a matter of discretion
4 where an applicant is statutorily eligible for relief. His argument is foreclosed by the
5 clear language of 8 U.S.C. § 1229b(b)(1), which indicates that the agency “may cancel
6 removal” of an applicant who satisfies the eligibility requirements. See Bugayong v.
7 INS, 442 F.3d 67, 73 (2d Cir. 2006) (noting in a similar statute that “the use of the
8 permissive ‘may’ . . . indicates . . . a threshold finding that an IJ must ordinarily make
9 before reaching the ultimate, and separate, determination as to whether he should
10 exercise his discretion in favor of a petitioner”). Because the agency has this
11 discretionary authority even if an applicant is eligible for relief under the statute, it is
12 irrelevant that the IJ considered a conviction that occurred more than “10 years
13 immediately preceding the date of [the] application.” See 8 U.S.C. § 1229b(b)(1)(A),
14 (B). The agency did not erroneously rely on evidence of the conviction to find that
15 Santiago had not shown good moral character such that he was rendered ineligible; it
16 denied relief solely as a matter of discretion.
17 Santiago also argues that it was improper for the IJ to consider pending charges
18 arising from his 2016 arrest in exercising the IJ’s discretion to deny relief. Santiago’s
19 argument is unavailing. The agency may “consider[] an applicant’s anti-social
20 conduct—whether leading to a conviction . . . or no legal judgment whatsoever—as an
3
1 adverse factor in evaluating an application for discretionary relief.” Wallace v.
2 Gonzales, 463 F.3d 135, 139 (2d Cir. 2006) (per curiam). We otherwise lack jurisdiction
3 to consider the agency’s weighing of the positive and adverse factors in exercising its
4 discretion. See Argueta v. Holder, 617 F.3d 109, 113 (2d Cir. 2010) (per curiam).
5 Further, Santiago’s argument that the IJ failed to consider evidence of his
6 rehabilitation is without merit. The IJ explicitly considered the evidence of Santiago’s
7 rehabilitation but found that Santiago’s history involving alcohol abuse outweighed it.
8 Essentially, Santiago’s dispute is with the agency’s weighing of equities in the exercise
9 of discretion, which is not reviewable. See id. Finally, although Santiago
10 hypothesizes that the IJ may have made a misstatement regarding an exhibit such that
11 the case should be remanded to perfect the record, he does not identify any evidence
12 missing from the record or otherwise explain what the error is. We therefore decline to
13 remand the case.
14 We have considered Santiago’s remaining arguments and conclude that they are
15 without merit. For the foregoing reasons, the petition for review is DISMISSED.
16 FOR THE COURT:
17 Catherine O’Hagan Wolfe,
18 Clerk of Court
4