Case Information
*1 ‐ ‐ Sessions UNITED STATES COURT OF APPEALS THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 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 NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At stated term United States Second Circuit, held Thurgood Marshall States Courthouse, Foley Square, City New York, th day March, two thousand seventeen.
PRESENT: ROBERT D. SACK,
RAYMOND LOHIER, JR.,
Circuit Judges ,
GREGORY H. WOODS,
District Judge * ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ JAVIER MORALES DURATE,
Petitioner ag JEFFERSON SESSIONS, III, UNITED STATES ATTORNEY GENERAL,
Respondent ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ * Gregory H. Woods, District Southern District sitting designation.
FOR PETITIONER: P AUL G ROTAS (Gary Yerman, on brief ), N.Y. RESPONDENT: C HRISTOPHER B UCHANAN Trial Attorney, Office of Immigration Litigation, Civil Division, (Stuart F. Delery, Acting Assistant Attorney General, Civil Division, Melissa Neiman Kelting, Senior Litigation Counsel, Office of Immigration Litigation, brief ), Department of Justice, Washington, D.C.
UPON DUE CONSIDERATION of review of a Board of Immigration (“BIA”) HEREBY ORDERED, ADJUDGED, DECREED review
Javier (“Morales”) a native citizen Guatemala. He asks us to review January 19, 2012 affirming decision an Immigration (“IJ”) to adjustment discretion to order removed. Javier Durate, No. A029 283 931 Jan. 2012), aff’g A029 (Immigr. Ct. N.Y.C. Oct. 2010). Here, review BIA. Yang assume parties’ familiarity facts prior proceedings, to refer only necessary to explain our dismiss petition.
As general matter, jurisdiction review denial an application adjust status. U.S.C. § 1252(a)(2)(B)(i); Guyadin retain review “constitutional claims questions law.” U.S.C. § 1252(a)(2)(D). those questions, de novo. Pierre To assess petitioner raises constitutional challenge *3 question law over which have jurisdiction, “study the argument[] asserted[] [and] . . . determine, regardless the rhetoric employed the petition, whether it merely quarrels over the correctness the factual findings or justification for discretionary choices, which case the court would lack jurisdiction.” Xiao Ji Chen F.3d argues that have for three each reject.
First, he that committed legal error considering arrests and convictions that are not statutory grounds for inadmissibility. But agency may past criminal conduct, whether not it renders alien inadmissible, deciding relief discretion. See, e.g., Wallace F.3d 2006); Grijalva, I. & N. Dec. therefore reject argument basis for jurisdiction, amounts mere disagreement discretionary choice and balancing equities. Guyadin,
Second, illegally failed offer “basis for her determination [Morales] has ‘a serious respect laws States.’” It true commits legal error when its “made without rational justification,” “facts important [the discretionary] determination . have been totally overlooked others been seriously mischaracterized,” Mendez explained rested (1) Morales’s repeated arrests drinking driving (2) acknowledgement he driver’s license while driving. That evidence justified points *4 misconstrued overlooked. at 329; Mendez,
Finally, erred declined consider presence adult children because there was “no indication [they] any [immigration] States.” BIA’s rely IJ’s finding children. Because finding formed part final under review, cannot it. Yang, (reviewing BIA).
For foregoing petition completed review, temporary stay removal previously granted this VACATED, pending motion stay removal DISMISSED moot. COURT:
Catherine O = Hagan Wolfe, Clerk