Dhavamani v. Garland ( 2023 )

22-6244
Dhavamani v. Garland
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 25th day of April, two thousand twenty-
three.
PRESENT:
JOHN M. WALKER, JR.,
RICHARD C. WESLEY,
BETH ROBINSON,
Circuit Judges.
_____________________________________
ARUN PRAKASH DHAVAMANI,
Petitioner,
v. 22-6244
MERRICK B. GARLAND, UNITED
STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Daniel E. Jackson, Corfu, NY.
FOR RESPONDENT: Brian M. Boynton, Principal Deputy Assistant
Attorney General, Civil Division, Jonathan A.
Robbins, Assistant Director, Office of
Immigration Litigation, Roberta O. Roberts,
Trial Attorney, Office of Immigration
Litigation, United States Department of
Justice, Washington, DC.
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 DISMISSED.
Petitioner Arun Prakash Dhavamani, a native and citizen of India, seeks
review of a May 3, 2022 decision of the BIA affirming a December 8, 2021 decision
of an Immigration Judge (“IJ”) denying his application for cancellation of
removal. 1 In re Arun Prakash Dhavamani, No. A 205 969 924 (B.I.A. May 3, 2022),
aff’g No. A 205 969 924 (Immig. Ct. Batavia Dec. 8, 2021). We assume the parties’
familiarity with the underlying facts and procedural history.
A nonpermanent resident, like Dhavamani, may have his removal cancelled
if he has been physically present in the United States for a continuous period of
ten years, has good moral character, does not have certain convictions, and
1 Dhavamani has not challenged the agency’s denial of his application for asylum, withholding
of removal, and relief under the Convention Against Torture.
2
establishes that his qualifying relatives would suffer “exceptional and extremely
unusual hardship” if he were removed. 8 U.S.C. § 1229b(b)(1). If a
nonpermanent resident meets these statutory eligibility requirements, then the IJ
makes a discretionary determination whether to grant or deny
cancellation. Rodriguez v. Gonzales, 451 F.3d 60, 62 (2d Cir. 2006).
Our jurisdiction to review the agency’s denial of cancellation of removal is
limited to constitutional claims and questions of law. 8 U.S.C. § 1252(a)(2)(B)(i),
(D); Patel v. Garland, 142 S. Ct. 1614, 1625 (2022) (holding that Ҥ 1252(a)(2)(B)(i)
does not stop at just the grant or denial of relief; it extends to any judgment
‘regarding’ that ultimate decision”); Barco-Sandoval v. Gonzales, 516 F.3d 35, 39 (2d
Cir. 2008) (holding that we lack jurisdiction to review “the correctness of an IJ’s
fact-finding” or the “wisdom” of the IJ’s exercise of discretion). A colorable
question of law may arise if the agency applies the wrong legal standard, Barco-
Sandoval, 516 F.3d at 40–41, or “totally overlook[s]” or “seriously
mischaracterize[s]” evidence, Mendez v. Holder, 566 F.3d 316, 323 (2d Cir. 2009), but
not where the applicant “quarrels over the correctness of the factual findings or
justification for the discretionary choices,” Xiao Ji Chen v. U.S. Dep’t of Justice, 471
F.3d 315, 329 (2d Cir. 2006).
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We have reviewed both the IJ’s and the BIA’s decisions “for the sake of
completeness,” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.
2006), and conclude that Dhavamani has not raised a colorable question of law as
to the IJ’s refusal to exercise discretion.
The agency denied Dhavamani’s application for cancellation of removal
upon finding that he did not establish the requisite good moral character or
exceptional and extremely unusual hardship to his qualifying relatives. The
agency further determined that Dhavamani did not merit relief as a matter of
discretion. The IJ denied relief as a matter of discretion on the ground that
Dhavamani’s acts of traveling interstate for purposes of engaging in illicit sexual
conduct were negative factors that outweighed any positive equities. 2
Dhavamani argues that the IJ erred by placing more weight on a detective’s
statements from a pre-trial criminal hearing than his own testimony in his removal
hearing. However, the IJ did not err by considering the pre-trial hearing
transcript. See Felzcerek v. I.N.S., 75 F.3d 112, 116 (2d Cir. 1996) (noting that the
Federal Rules of Evidence do not strictly apply in removal proceedings).
2These acts were the basis of criminal charges against Dhavamani. The agency’s findings were
based on the sworn testimony of a detective in connection with those charges rather than on the
fact of his conviction. See United States v. Dhavamani, No. 20-4306, 2021 WL 4786614 (4th Cir.
2021) (affirming Dhavamani’s conviction in part, and vacating in part).
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Dhavamani does not argue that the IJ’s reliance on the pre-hearing trial transcript
was fundamentally unfair or not in accordance with due process, and instead
contests the weight the IJ afforded to the testimony.
Dhavamani’s argument that the IJ weighed the detective’s statements
“merely quarrels over the . . . justification for the discretionary choices.” Xiao Ji
Chen, 471 F.3d at 329; see also id. at 342 (“[T]he weight to afford . . . evidence lies
largely within the discretion of the IJ” (quotation marks omitted)); Guyadin v.
Gonzales, 449 F.3d 465, 468–69 (2d Cir. 2006) (finding no “jurisdiction to review any
claim that an IJ or the BIA erred in weighing the factors relevant to” a denial of
relief as a matter of discretion). Accordingly, Dhavamani failed to assert a
colorable question of law challenging the agency’s denial of cancellation as a
matter of discretion. See Barco-Sandoval, 516 F.3d at 40–41.
For the foregoing reasons, the petition for review is DISMISSED. All
pending motions and applications are DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
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