12-4152-ag
Alvarez 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.

       At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 15th day of October, two thousand thirteen.

PRESENT: ROBERT D. SACK,
                 BARRINGTON D. PARKER,
                 REENA RAGGI,
                                 Circuit Judges.
----------------------------------------------------------------------
JAVIER ALVAREZ,
                                 Petitioner,

                        v.                                                 No. 12-4152-ag

ERIC H. HOLDER, JR., United States Attorney General,
                                 Respondent.
----------------------------------------------------------------------

FOR PETITIONER:                                  Frederic S. Rosengarten, Howard            M.
                                                 Rosengarten P.C., New York, New York.

FOR RESPONDENT:                                  Stuart F. Delery, Acting Assistant Attorney
                                                 General,      Civil      Division,     Melissa
                                                 Neiman-Kelting, Senior Litigation Counsel,
                                                 Office of Immigration Litigation, Christopher
                                                 Buchanan,    Trial    Attorney,    Office of
                                                 Immigration Litigation, Civil Division, United
                                                 States Department of Justice, Washington, D.C.
         Petition for review of a Board of Immigration Appeals order denying cancellation

of removal.

         UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the petition for review of the order issued on September 19, 2012,

is DENIED.

         Javier Alvarez, a native and citizen of Peru, seeks review of a Board of

Immigration Appeals (“BIA”) order affirming the March 8, 2011 decision of Immigration

Judge (“IJ”) Mary M. Cheng denying cancellation of removal.       In re Javier Alvarez, No.

A044 708 141 (B.I.A. Sept. 19, 2012), aff’g No. A044 708 141 (Immig. Ct. N.Y.C, Mar.

8, 2011).1    Under the circumstances of this case, we review the IJ’s decision as modified

by the BIA.     See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.

2005).     We review findings of fact—“including those underlying the immigration

court’s determination that an alien has failed to satisfy his burden of proof”—under the

“substantial evidence” standard, Chuilu Liu v. Holder, 575 F.3d 193, 196 (2d Cir. 2009)

(internal quotation marks omitted), which requires that the findings be supported by

“reasonable, substantial and probative evidence in the record,” Lin Zhong v. U.S. Dep’t of

Justice, 480 F.3d 104, 116 (2d Cir. 2007) (internal quotation marks omitted); see

8 U.S.C. § 1252(b)(4)(B).      We review de novo questions of law, including our own

subject-matter jurisdiction.   See Fuller v. BIA, 702 F.3d 83, 85 (2d Cir. 2012); Severino


1
 IJ Noel Anne Ferris presided over Alvarez’s removal proceedings from 2006 until the
case was transferred to IJ Cheng on December 15, 2010. J.A. 138. We note this fact
because each of these IJs presided over one or more of the proceedings at issue.
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v. Mukasey, 549 F.3d 79, 82 (2d Cir. 2008).       We assume the parties’ familiarity with the

underlying facts and record of the prior proceedings, which we reference only as

necessary to explain our decision to deny the petition.

       Alvarez challenges the BIA’s determination that he failed to establish eligibility

for cancellation of removal as a nonpermanent resident under § 240A(b)(1) of the

Immigration and Naturalization Act (“INA”), which permits the Attorney General to

cancel removal of an alien who, among other criteria, “has been physically present in the

United States for a continuous period of not less than 10 years immediately preceding”

either the date of the application for cancellation of removal, 8 U.S.C. § 1229b(b)(1)(A),

or service of a Notice to Appear, id. § 1229b(d)(1).       Alvarez does not deny that on the

record presented, the IJ and the BIA could conclude that he failed to establish continuous

presence in the United States from May 15, 1996, through May 15, 2006, the date he was

served with a Notice to Appear.     See Pet’r’s Br. 10; J.A. 439.      Rather, Alvarez faults

the IJ for (1) failing to instruct him as to the evidence necessary to corroborate his claim

of continuous presence and (2) denying him an opportunity to explain his inability to

produce such evidence.     Pet’r’s Br. 10–11.      Alvarez submits that these errors denied

him due process, and he seeks remand for rehearing.       Id. at 5.

       We have jurisdiction to review nondiscretionary determinations of an applicant’s

statutory eligibility for cancellation of removal.    See 8 U.S.C. § 1252(a)(2)(D); Rosario

v. Holder, 627 F.3d 58, 61, 62 (2d Cir. 2010).       Moreover, insofar as Alvarez argues that

he was denied due process, he presents a constitutional challenge also subject to our


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jurisdiction.   See Morris v. Holder, 676 F.3d 309, 313–14 (2d Cir. 2012); Rosario v.

Holder, 627 F.3d at 61.

       Respondent nevertheless contends that we lack jurisdiction because Alvarez failed

to appeal the IJ’s continuous physical presence findings to the BIA, rendering his due

process claims unexhausted.     We disagree.       Because the BIA sua sponte addressed and

affirmed the IJ’s determination that Alvarez failed to establish the requisite physical

presence, we may review that issue.     See Gashi v. Holder, 702 F.3d 130, 136 (2d Cir.

2012) (finding argument exhausted by BIA’s disposition of issue though petitioner did

not raise it before BIA on appeal). Further, because Alvarez’s due process claims are

subsidiary to his challenge to the BIA’s continuous physical presence determination, we

may also review those claims.     See Gill v. INS, 420 F.3d 82, 86 (2d Cir. 2005) (“[W]e

enjoy broad discretion to consider subsidiary legal arguments that were not specifically

raised below.” (citation and internal quotation marks omitted)).        Because Alvarez’s

arguments lack merit, however, we deny the petition.

       In deciding whether a petitioner satisfies the continuous physical presence

requirement of INA § 240A(b)(1), an IJ may require that credible testimony be

corroborated “unless the applicant demonstrates that [he] does not have the evidence and

cannot reasonably obtain the evidence.” 8 U.S.C. § 1229a(c)(4)(B). In the asylum

context, where a similar corroboration rule applies, see id. § 1158(b)(1)(B)(ii), we have

held that the IJ must, either in its decision or otherwise in the record, (1) identify the

specific pieces of missing, relevant documentation and explain that this documentation


                                               4
was reasonably available; (2) give the petitioner an opportunity to explain any omission;

and (3) assess any explanation.      See Chuilu Liu v. Holder, 575 F.3d at 198.2           To

establish that he was denied due process in this regard, Alvarez must show that he was

“denied a full and fair opportunity to present [his] claims,” Burger v. Gonzales, 498 F.3d

131, 134 (2d Cir. 2007), and that he suffered “some cognizable prejudice fairly

attributable to the challenged process,” Garcia-Villeda v. Mukasey, 531 F.3d 141, 149

(2d Cir. 2008).   Alvarez fails to establish any error by the two IJs presiding over his

removal proceedings, let alone error of constitutional dimension.

       Here, the IJs repeatedly instructed Alvarez, who was represented throughout by

counsel, to submit evidence that he filed taxes and provided him with a list of necessary

documentation.    See J.A. 111, 117, 120, 123, 133.     Further, the IJs questioned Alvarez

as to his failure to produce these documents, providing him the opportunity to explain

their omission.   See id. at 116, 132–33.     Rather than assert, as he does now, that his

lack of immigration status prevented him from maintaining those records, he testified that

he did not consistently file business taxes due to financial difficulties, see id. at 117, and

that his new tax accountant delayed his submission of other business tax returns, see id. at

133. Alvarez did not explain why he did not provide IRS records of his tax history, or



2
  We do not here suggest that the corroboration rule in asylum cases necessarily applies
to requests for cancellation of removal. We note only that if the petitioner has not met
the requirements for asylum, he certainly does not meet the requirements for cancellation
of removal.

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why he did not provide his personal tax returns, given his testimony that he had paid

taxes annually since arriving in the United States.   See id. at 177.   IJ Cheng assessed

these explanations, but reasonably rejected them as a basis for excusing the absent

corroboration given that Alvarez received four continuances specifically for the purpose

of preparing his cancellation application, see id. at 111–12, 120–125, 133–35, 407–12,

and had over four years from the start of proceedings to obtain that evidence, see id. at

91–92, 96, 99, 203.     Thus, Alvarez’s claim that he was denied due process is clearly

belied by the record.    See Garcia-Villeda v. Mukasey, 531 F.3d at 149; Burger v.

Gonzales, 498 F.3d at 134.

       Because Alvarez did not submit his tax returns for the years 1998, 1999, 2000, and

2002, and the IJ reasonably determined that evidence to be available, the IJ did not err in

finding that Alvarez did not satisfy the physical presence requirement and denying

cancellation of removal on that basis.   See 8 U.S.C. §§ 1229a(c)(4)(B), 1229b(b)(1)(A);

Chuilu Liu v. Holder, 575 F.3d at 196, 198.




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      We have considered petitioner’s remaining arguments and conclude that they are

without merit.   Accordingly, the petition for review is DENIED.        As we have

completed our review, any stay of removal that the court previously granted in this

petition is VACATED, and any pending motion for a stay of removal in this petition is

DISMISSED as moot.



                                FOR THE COURT:
                                CATHERINE O’HAGAN WOLFE, Clerk of Court




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