Ledesma v. Holder
450 F. App'x 51
2d Cir.2011Background
- Ledesma, a Dominican Republic citizen, seeks review of a BIA order reversing IJ’s grant of cancellation of removal.
- BIA sua sponte reconsidered the IJ’s favorable discretionary decision without notice and denied cancellation.
- Ledesma challenges due process and regulatory compliance, arguing BIA review exceeded statutory scope and violated rights.
- BIA’s discretionary determination relied on Ledesma’s sexual-misconduct conviction and its overall criminal history.
- The Board balanced positive/negative discretionary factors, concluding his criminal history weighed strongly against relief.
- Court dismisses the statutory-eligibility question as unnecessary to resolve given the discretionary denial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of BIA’s sua sponte review | Ledesma contends due process and regulations were violated by sua sponte review. | BIA may review issues de novo and has authority to reconsider discretionary determinations. | No due process violation; sua sponte review permissible. |
| BIA’s use of the conviction’s facts in discretion | Record insufficient to support a discretionary denial under the factual circumstances. | BIA properly considered the factual circumstances of the conviction in exercising discretion. | Proper to consider facts; not abuse of discretion. |
| Statutory ineligibility under the categoric approach | Conviction should categorize Ledesma as a violent aggravated felon affecting eligibility. | Court need not decide categorically here; focus is on discretionary denial. | Not reached; petition denied on discretionary grounds. |
| Explicit discussion of factors by BIA | BIA failed to explicitly address positive factors and mischaracterized history. | BIA is not required to parse every piece of evidence; presumption of consideration applies. | Not error; factor-balancing within discretion permitted. |
Key Cases Cited
- Padmore v. Holder, 609 F.3d 62 (2d Cir. 2010) (review of discretionary determinations and constitutional claims in removal proceedings)
- Yuen Jin v. Mukasey, 538 F.3d 143 (2d Cir. 2008) (no due process right to discretionary relief)
- Nolasco v. Holder, 637 F.3d 159 (2d Cir. 2011) (prejudice and rights protected by regulation must be shown)
- Matter of C-V-T-, 22 I. & N. Dec. 7 (B.I.A. 1998) (BIA may consider factors beyond conviction in discretionary decisions)
- Zhi Yun Gao v. Mukasey, 508 F.3d 86 (2d Cir. 2007) (agency not required to parse every piece of evidence on record)
- Rosario v. Holder, 627 F.3d 58 (2d Cir. 2010) (court lacks jurisdiction to review factor-balancing at core of agency discretion)
- Matter of A-S-B-, 24 I. & N. Dec. 493 (B.I.A. 2008) (agency may balance discretionary factors de novo on review)
- Chery v. Ashcroft, 347 F.3d 404 (2d Cir. 2003) (sexual crimes involving minors inherently pose substantial risk of physical force)