433 F. App'x 22
2d Cir.2011Background
- Nathaniel, a native and citizen of Trinidad, sought a waiver of inadmissibility under INA § 212(h).
- The BIA reversed the IJ’s February 12, 2007 grant of the waiver and denied relief on December 31, 2009.
- Nathaniel challenged the BIA decision in a petition for review filed in this Court.
- The court reviews only the BIA decision on questions of law and constitutional claims when discretionary relief is denied under § 212(a)(2)(A)(i)(II).
- Nathaniel argued the BIA impermissibly fact-found under 8 C.F.R. § 1003.1(d)(3)(iv); the court held the BIA did not undertake improper fact-finding.
- The court also held that even if the BIA’s findings were permissible, the denial of “extreme hardship” is discretionary and not subject to review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the BIA violated § 1003.1(d)(3)(iv) by fact-finding | Nathaniel claims BIA fact-found in reweighing evidence | BIA did not make new factual determinations; it reevaluated IJ record | No violation; no new factual determinations by BIA |
| Whether the court has jurisdiction to review the discretionary denial of §212(h) | Claims denial was improper as a matter of law | Review limited to legal and constitutional issues; discretionary denial not reviewable | Court lacks jurisdiction to review discretionary denial of hardship relief |
| Whether the BIA’s outcome on extreme hardship was reviewable | Extreme hardship findings should be reviewable | Extreme hardship determinations are discretionary | Discretionary; not reviewable by the court |
Key Cases Cited
- Yan Chen v. Gonzales, 417 F.3d 268 (2d Cir. 2005) (established standard for reviewing BIA decisions)
- Yanqin Weng v. Holder, 562 F.3d 510 (2d Cir. 2009) (confirms scope of review under 8 U.S.C. §1252(b)(4)(B))
- Belortaja v. Gonzales, 484 F.3d 619 (2d Cir. 2007) (BIA may not base decision on new evidence; may reevaluate IJ facts within record)
- Padmore v. Holder, 609 F.3d 62 (2d Cir. 2010) (BIA exceeded authority when reversing IJ on disputed material facts)
- Bugayong v. INS, 442 F.3d 67 (2d Cir. 2006) (extreme hardship finding is discretionary)