     11-79
     Lima v. Holder


                          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.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 6th day of December, two thousand eleven.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                JON O. NEWMAN,
 9                GERARD E. LYNCH,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       JOSE B. LIMA,
14                Petitioner,
15
16                    -v.-                                               11-79
17
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       - - - - - - - - - - - - - - - - - - - -X
22
23       FOR PETITIONER:                       Anne Pilsbury, Brooklyn, New
24                                             York.
25
26       FOR APPELLEES:                        Tony West, Assistant Attorney
27                                             General, Civil Division; Cindy

                                                  1
 1                              S. Ferrier, Senior Litigation
 2                              Counsel; Sunah Lee, Trial
 3                              Attorney, Office of Immigration
 4                              Litigation, United States
 5                              Department of Justice,
 6                              Washington, D.C.
 7
 8            UPON DUE CONSIDERATION of this petition for review
 9   of a Board of Immigration Appeals (“BIA”) decision, IT IS
10   HEREBY ORDERED, ADJUDGED AND DECREED that the petition for
11   review is DISMISSED.
12
13
14        Jose Brigido Lima, a native and citizen of El Salvador,
15   petitions for review of a BIA decision affirming a ruling by
16   Immigration Judge (“IJ”) Joanna Miller Bukszpan, denying his
17   application for special rule cancellation of removal under
18   the Nicaraguan Adjustment and Central American Relief Act of
19   1997. We assume the parties’ familiarity with the
20   underlying facts, the procedural history, and the issues
21   presented for review.
22
23        The IJ and BIA rejected Lima’s application, finding [i]
24   that Lima did not establish that he was a person of good
25   moral character for the seven years preceding his
26   application, see 8 C.F.R. § 1240.66(b)(2)-(3), and [ii] that
27   in any event, an exercise of discretion in Lima’s favor was
28   not justified. For both determinations, they relied on
29   Lima’s failure to appear to face charges in connection with
30   a 1990 hit-and-run accident in California until 2004, a
31   period spanning almost the entire seven years during which
32   Lima was to demonstrate good moral character. Lima argues
33   that the IJ committed an error of law by overlooking his
34   reasons for absconding and that the BIA committed an error
35   of law by mischaracterizing his alleged efforts to resolve
36   the charges.
37
38   [1] Standard of Review
39        No court has jurisdiction to review discretionary
40   determinations of the BIA, including cancellation of
41   removal, 8 U.S.C. § 1229(b), except to the extent that the
42   petition raises a constitutional claim or question of law. 8
43   U.S.C. § 1252(a)(2)(B)(i), (2)(D); see Argueta v. Holder,
44   617 F.3d 109, 111-12 (2d Cir. 2010) (per curiam). Agency
45   determinations of moral character made under the catchall
46   provision, 8 U.S.C. § 1101(f)(9), are discretionary
47   determinations which are likewise reviewable for

                                  2
 1   constitutional claims or questions of law. See Sumbundu v.
 2   Holder, 602 F.3d 47, 55 (2d Cir. 2010) (leaving open the
 3   possibility that “moral character determinations under the
 4   catchall provision are . . . subject to substantial evidence
 5   review”). A petitioner cannot, however,“secure review by
 6   using the rhetoric of a ‘constitutional claim’ or ‘question
 7   of law’ to disguise what is essentially a quarrel about
 8   fact-finding or the exercise of discretion.” Xiao Ji Chen
 9   v. United States Dep’t of Justice, 471 F.3d 315, 330 (2d
10   Cir. 2006).
11
12        Moreover, a BIA determination that an applicant for
13   cancellation of removal who meets the basic standards of
14   eligibility will nevertheless be denied that relief in the
15   agency’s discretion is not reviewable. Mendez v. Holder,
16   566 F.3d 316, 320 (2d Cir. 2009).
17
18   [2] Challenge to Agency Factfinding
19        “[T]he agency does not commit an ‘error of law’ every
20   time an item of evidence is not explicitly considered or is
21   described with imperfect accuracy, but where . . . some
22   facts important to the [determination of a criterion for
23   eligibility for cancellation of removal] have been totally
24   overlooked and others have been seriously mischaracterized,
25   we conclude that an error of law has occurred.” Mendez, 566
26   F.3d at 323. In Mendez, a petition for review was granted
27   and remanded to the BIA when the opinion of an IJ made
28   obvious that the IJ had not considered a relevant fact. See
29   Id. at 322-23 (IJ opinion recited that the only evidence
30   regarding an asthma condition was a doctor’s letter, whereas
31   the petitioner testified as to other evidence of the
32   asthma’s severity).
33
34        Here, Lima argues that the IJ overlooked his testimony
35   that the reason he fled the accident was that he feared
36   deportation to El Salvador where his father and brother were
37   killed. Although the IJ acknowledged that Lima
38   “intentionally failed to appear at his criminal hearing in
39   1990 out of fear of being found guilty and deported,” no
40   mention was made of the Salvadoran murders. Lima challenges
41   as a mischaracterization the BIA’s statement that he “did
42   not face the criminal charges until he was arrested during
43   his immigration proceedings in 2004.” Lima testified that
44   he and his sister made efforts to contact the authorities in
45   California in order to deal with the charges.
46


                                  3
 1        In any event, the IJ decided both that Lima was
 2   ineligible for relief because he lacked good moral character
 3   and that Lima’s evasion of prosecution made it impossible to
 4   “justify an exercise of discretion in [Lima’s] favor.” That
 5   decision was upheld by the BIA, which in addition to
 6   upholding the IJ’s finding of lack of good moral character,
 7   “also f[ou]nd no error with the Immigration Judge’s
 8   discretionary denial of relief.” Since this discretionary
 9   decision, which we lack jurisdiction to review, Mendez, 566
10   F.3d at 319-320, independently supports the agency’s denial
11   of relief, we must dismiss the petition for lack of
12   jurisdiction.
13
14
15        We find no merit in Lima’s remaining arguments. For
16   the reasons stated above, the petition for review is
17   DISMISSED.
18
19
20                              FOR THE COURT:
21                              CATHERINE O’HAGAN WOLFE, CLERK
22




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