Case Information
*1 10-345-ag Nathaniel v. Holder
BIA Weisel, IJ A035 400 809 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND 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 THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At а stated term of the United States Court of Appeals 1 2 for the Second Circuit, held at the Daniel Patrick Moynihan 3 United States Courthоuse, 500 Pearl Street, in the City of New York, on the 20 th day of May, two thousand eleven. 4 5 PRESENT:
6 JOSÉ A. CABRANES,
7
8 BARRINGTON D. PARKER, RICHARD C. WESLEY,
9 Circuit Judges .
10 _______________________________________
12 13
MAXIMIN PATRICK NATHANIAL, A.K.A.
“MAXIM PATRICK”
Petitioner , v. 10-345-ag NAC ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL
Respondent .
______________________________________
FOR PETITIONER: H. Raymond Fasano, Madeo & Fasano,
New York, New York.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Anthony W. Norwood, Senior *2 Litigation Counsel; Hillel R. Smith, Trial Attorney, Office of Immigration Litigation, Civil Division, Unitеd States Department of Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a Board of Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND DECREED that the petition for review is DENIED.
Petitioner Maximin Patrick Nathaniel, a native and citizеn of Trinidad, seeks review of a December 31, 2009, decision of the BIA reversing the February 12, 2007, decision of Immigration Judge (“IJ”) Robert D. Weisel granting Nathaniel а waiver of inadmissibility under section 212(h) of the Immigration and Nationality Act (“INA”). In re Maximin Patrick Nathaniel , No. A035 400 809 (B.I.A. Dec. 31, 2009), rev’g No. A035 400 809 (Immig. Ct. N.Y. City Fеb. 12, 2007). We assume the parties’ familiarity with the underlying facts and procedurаl history in this case.
Under the circumstances of this case, we review оnly
the decision of the BIA.
See Yan Chen v. Gonzales
, 417 F.3d
268, 271 (2d Cir. 2005). The applicable standards of review
are well-established.
See
8 U.S.C. § 1252(b)(4)(B);
Yanqin
Weng v. Holder
,
Because Nathaniel is challenging the denial оf
discretionary relief and because his final order of removal
was based on a criminal conviction covered by Immigration
and Natiоnality Act § 212(a)(2)(A)(i)(II) (relating to a
violation of a law relating to a controlled substance), our
jurisdiction is limited to review of constitutional clаims
and questions of law raised in petitions for review.
See
8 U.S.C. § 1252(a)(2)(B)-(D). Because Nathaniel argues that
the BIA violated its own regulations by engaging in
impermissible fаct-finding, we have jurisdiction to review
his claim.
See Padmore v. Holder
,
However, Nathaniel’s argument that the BIA violated
8 C.F.R. § 1003.1(d)(3)(iv) by engaging in fact-finding is
unavailing. Section 1003.1(d)(3)(iv) provides, in relevant
part, that “[e]xcept for taking administrative notice of
commonly known facts such as current events or the contents
of official documents, the [BIA] will not engage in
factfinding in the courts of deciding аppeals . . . . If
further factfinding is needed in a particular case, thе
[BIA] may remand the proceeding to the IJ . . . .” The
*4
regulation was intended tо restrict the introduction of new
evidence before the BIA, “not the reevaluation of evidence
obtained by the IJ previously.”
Belortaja v. Gonzales
, 484
F.3d 619, 625 (2d Cir. 2007);
see also Padmore
,
Here, the BIA did not find any new facts, but rather
observed that the IJ hаd not treated one of Nathaniel’s
alleged children as a qualifying relative because
Nathaniel’s name was not listed on her birth certificate,
and noted that the IJ had found that Nathaniel’s older son
had testifiеd that he often travels to Trinidad and that the
record did not suggest that Nathaniel’s daughter could not
do the same. Accordingly, because the BIA did nоt make new
factual determinations of disputed factual questions or rely
on facts outside of the record, the BIA did not engage in
factfinding in violation of 8 C.F.R. § 1003.1(d)(3)(iv).
See Padmore
,
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously grаnted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in acсordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk