Azam CHOWDHOURY, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent.
No. 11-3901-ag.
United States Court of Appeals, Second Circuit.
Sept. 5, 2012.
496 F. Appx. 182
PRESENT: REENA RAGGI, DEBRA ANN LIVINGSTON, and RAYMOND J. LOHIER, JR., Circuit Judges.
Judy Resnick, Esq., Far Rockaway, NY, for Petitioner. Brendan Hogan, Trial Attorney, Stuart Delery, Acting Assistant Attorney General, Song Park, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, D.C., for Respondent.
Azam Chowdhoury, a native and citizen
Chowdhoury argues that the IJ (1) committed legal error in giving preclusive effect to the state court judgment of annulment with respect to whether Chowdhoury‘s marriage was fraudulent, and (2) violated his due process rights in refusing to permit his witnesses to testify. Chowdhoury further contends that (3) the BIA erred in failing to review de novo the IJ‘s finding that Chowdhoury had not carried his burden of proof. Assuming that these arguments present questions of law that we have jurisdiction to review, see
First, the IJ explicitly stated that she regarded the annulment as strong evidence relevant to, but not determinative of, whether Chowdhoury entered into his marriage in good faith. Chowdhoury‘s argument is meritless in any event because, in finding that Chowdhoury failed to carry his burden of proof, the BIA based its determination solely on its assessment of the evidence Chowdhoury introduced, “[i]rrespective of the judgment of annulment.” In re Azam Chowdhoury, No. A046 764 540, slip op. at *2 (B.I.A.). Thus, even if the IJ erred in applying the law, such error did not infect the agency‘s decision. See Lin Zhong v. U.S. Dep‘t of Justice, 480 F.3d 104, 122 (2d Cir.2007) (reiterating that when BIA issues an opinion that “constitutes the final agency determination, [a review court] may consider only those issues that formed the basis for that decision“).
Second, Chowdhoury did not indicate during the August 2007 master calendar hearing that he intended to offer witness testimony. Further, at the merits hearing, Chowdhoury‘s counsel told the IJ that it would not be necessary to call the six witnesses on his witness list. Thus, he cannot now complain that the agency denied him a meaningful opportunity to elicit testimonial evidence from those witnesses. See Ali v. Mukasey, 529 F.3d 478, 490 (2d Cir.2008).
Finally, insofar as Chowdhoury argues that the agency should have credited his testimony, given it more weight, and not expected him to submit additional evidence to carry his burden, Chowdhoury effectively challenges only the agency‘s determinations regarding weight and credibility of the evidence. See Contreras-Salinas v. Holder, 585 F.3d 710, 713-15 (2d Cir.2009) (concluding that credibility determinations and relative weight accorded to record evidence are not questions of law). We lack jurisdiction to review what was essentially a factual finding, despite Chowdhoury‘s efforts to recast his arguments as legal questions. See Boluk v. Holder, 642 F.3d 297, 304 (2d Cir.2011); see also Xiao Ji Chen v. U.S. Dep‘t of Justice, 471 F.3d 315, 330 (2d Cir.2006) (holding that petitioner cannot “secure review by using the rhetoric of a ‘constitutional claim’ or ‘question of law’ to disguise what is essentially a quarrel about fact-finding or the exercise of discretion“).
For the foregoing reasons, the petition for review is DENIED IN PART and DISMISSED IN PART. Petitioner‘s request for oral argument is DENIED. See Fed. R.App. P. 34(a)(2); 2d Cir. Local R. 34.1(b).