Marquez v. Garland, 13f4th108

Jose Esteban Marquez, a lawful permanent resident, pleaded guilty in 2006 to endangering the welfare of a child under N.Y. Penal Law § 260.10(1) (received probation and order of protection).
In 2017 the government initiated removal proceedings under 8 U.S.C. § 1227(a)(2)(E)(i) (conviction for a “crime of child abuse, child neglect, or child abandonment”).
The Board of Immigration Appeals (in Matter of Soram, 2010) construed the federal removal ground to include state endangerment statutes that do not require proof of actual harm if they require a sufficient risk of harm.
The Immigration Judge sustained removability, denied Marquez’s cancellation-of-removal application (weighing convictions, testimony, and uncorroborated arrest reports), and the BIA affirmed.
Marquez petitioned for review arguing (1) Soram’s interpretation should not apply retroactively to his 2006 plea and (2) the IJ erred by relying on uncorroborated arrest reports in denying cancellation of removal.
The Second Circuit held Soram applies retroactively (so Marquez is removable) and dismissed review of the cancellation denial for lack of jurisdiction because the agency’s discretionary weighing of arrest reports is unreviewable.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a BIA decision construing "crime of child abuse" (Matter of Soram) applies retroactively to a 2006 guilty plea	Soram announces a new rule and applying it retroactively to Marquez’s 2006 conviction would be unfair	Soram fills a gap in an unsettled area of law and should apply retroactively to preserve uniform immigration law	Soram applies retroactively; Marquez is removable under § 1227(a)(2)(E)(i) (court relied on factors from Lugo and related precedent)
Whether the IJ erred by relying on uncorroborated arrest reports when denying cancellation of removal (and whether the court can review that reliance)	The IJ improperly relied on arrest reports in contravention of BIA precedent (In re Arreguin de Rodriguez)	The agency may admit and weigh uncorroborated arrest reports in discretionary determinations; such discretionary weighing is not judicially reviewable	Court lacks jurisdiction to review the discretionary denial of cancellation; petition dismissed as to that claim

Matthews v. Barr, 927 F.3d 606 (2d Cir. 2019) (upholding BIA construction that endangerment statutes can be "crime of child abuse")
Landgraf v. USI Film Prods., 511 U.S. 244 (1994) (retroactivity principles for judicial and legislative actions)
De Niz Robles v. Lynch, 803 F.3d 1165 (10th Cir. 2015) (framework on agency adjudication vs. rulemaking and retroactivity)
Lugo v. Holder, 783 F.3d 119 (2d Cir. 2015) (five-factor test for retroactive application of agency rules)
Obeya v. Sessions, 884 F.3d 442 (2d Cir. 2018) (discussing when BIA decisions announce new rules)
Ming Xia Chen v. BIA, 435 F.3d 141 (2d Cir. 2006) (reviewing both IJ and BIA reasoning where BIA adopts IJ reasoning)
Barco-Sandoval v. Gonzales, 516 F.3d 35 (2d Cir. 2008) (limits on judicial review of discretionary cancellation denials)
Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315 (2d Cir. 2006) (distinguishing reviewable legal questions from nonreviewable discretionary fact-weighing)
Guyadin v. Gonzales, 449 F.3d 465 (2d Cir. 2006) (discussing nonreviewability of discretionary determinations involving weighing of factors)
Wallace v. Gonzalez, 463 F.3d 135 (2d Cir. 2006) (IJ may consider anti-social conduct and arrest reports in discretionary immigration relief)