Khan v. Garland ( 2021 )

20-2324-ag
Khan v. Garland
BIA
Farber, IJ
A042 158 406
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 29th day of September, two thousand twenty-one.
PRESENT: PIERRE N. LEVAL,
JOSÉ A. CABRANES,
ROSEMARY S. POOLER,
Circuit Judges.
_____________________________________
BIBI FAZEEMA KHAN, AKA FAZEEMA
BIBI KHAN,
Petitioner,
v. 20-2324-ag
MERRICK B. GARLAND, UNITED
STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Meer M. M. Rahman, New York, NY.
FOR RESPONDENT: Brian Boynton, Acting Assistant Attorney General;
Justin Markel, Senior Litigation Counsel; Andrew
Oliveira, Trial Attorney, Office of Immigration
Litigation, United States Department of Justice,
Washington, DC.
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UPON DUE CONSIDERATION of this petition for review of a decision of the Board of
Immigration Appeals (“BIA”), it is hereby ORDERED, ADJUDGED, AND DECREED that
the petition for review is DISMISSED.
Petitioner Bibi Fazeema Khan (“Khan”), a native and citizen of Guyana, seeks review of a
June 24, 2020, decision of the BIA affirming the August 7, 2019, decision of an Immigration Judge
(“IJ”) denying Khan’s application for adjustment of status as a matter of discretion and ordering her
removed. In re Bibi Fazeema Khan, No. A042 158 406 (B.I.A. June 24, 2020), aff’g No. A042 158 406
(Immig. Ct. N.Y. City Aug. 7, 2019). We assume the parties’ familiarity with the underlying facts and
procedural history.
Where, as in this case, the BIA adopts the decision of an IJ and provides additional reasons
for doing so, we consider both the IJ’s and the BIA’s opinions. Wangchuck v. Dep’t of Homeland Sec., 448
F.3d 524, 528 (2d Cir. 2006). Our review of the agency’s discretionary denial of adjustment of status
is limited to colorable constitutional claims and questions of law. See 8 U.S.C. § 1252(a)(2)(B), (D);
Guyadin v. Gonzales, 449 F.3d 465, 468-69 (2d Cir. 2006); see also Barco-Sandoval v. Gonzales, 516 F.3d 35,
40-41 (2d Cir. 2008). To determine whether jurisdiction exists, we “study the arguments asserted,”
and “determine, regardless of the rhetoric employed in the petition, whether it merely quarrels over
the correctness of the factual findings or justification for the discretionary choices, in which case [we]
would lack jurisdiction, or whether it instead raises a ‘constitutional claim’ or ‘question of law,’ in
which case [we] could exercise jurisdiction to review those particular issues.” Xiao Ji Chen v. U.S. Dep’t
of Justice, 471 F.3d 315, 329 (2d Cir. 2006).
In determining whether a noncitizen should be permitted to adjust to lawful status as a matter
of discretion, the agency weighs the noncitizen’s positive attributes against any negative factors. See
Guyadin, 449 F.3d at 468–69; Matter of Arai, 13 I. & N. Dec. 494, 496 (B.I.A. 1970). The agency’s
determination regarding the weight of these factors is outside the scope of our jurisdiction. See Guyadin,
449 F.3d at 469. Khan makes conclusory assertions that the agency’s decisions were arbitrary, departed
from agency procedures, rested on an impermissible basis, and failed to take into consideration all
relevant factors, but she does not provide any support for those arguments. Instead, her only specific
argument is that the agency should have given more weight to the IJ’s determination that her family
will suffer extreme hardship if she is removed. We lack jurisdiction to consider that argument. See
8 U.S.C. § 1252(a)(2)(B), (D); Guyadin, 449 F.3d at 468–69.
For the foregoing reasons, the petition for review is DISMISSED and Khan’s motion for a
stay of removal is DENIED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
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