         08-6145-ag
         Macias v. Holder

                                 UNITED STATES COURT OF APPEALS
                                       F OR T HE S ECOND C IRCUIT

                                               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 Daniel Patrick Moynihan
         United States Courthouse, 500 Pearl Street, in the City of
         New York, on the 2 nd day of February, two thousand and ten.

         Present: RICHARD C. WESLEY,
                  GERARD E. LYNCH,
                                Circuit Judges,
                  MARK R. KRAVITZ
                                District Judge. *
         ______________________________ ____________________

         MICHAEL JAVIER MACIAS-BRITO,

                                       Petitioner,

                        - v. -                                                (08-6145-ag)

         ERIC H. HOLDER, JR., United States
         Attorney General, **

                            Respondent.
         __________________________________________________




         *
            The Honorable Mark R. Kravitz, United States District Court for the
         District of Connecticut, sitting by designation.
         **
            Pursuant to Federal Rule of Appellate Procedure 43(c)(2), United States
         Attorney General Eric H. Holder, Jr., is substituted for former Attorney
         General Michael B. Mukasey as respondent in this case. The Clerk of the Court
         is respectfully directed to amend the official caption in this action to
         conform to the caption in this summary order.
     For Petitioner:             SANDRA GREENE, GreeneFitzgerald
                                 Advocates and Consultants, York,
                                 Pennsylvania.

     For Respondent:             STUART S. NICKUM, Trial
                                 Attorney, Office of Immigration
                                 Litigation (Tony West, Assistant
                                 Attorney General; Jennifer
                                 Paisner Williams, Senior
                                 Litigation Counsel, Office of
                                 Immigration Litigation, on the
                                 brief), Civil Division, U.S.
                                 Department of Justice,
                                 Washington, D.C.

 1       UPON DUE CONSIDERATION of this petition for review of a

 2   Board of Immigration Appeals (“BIA”) decision, IT IS HEREBY

 3   ORDERED, ADJUDGED, AND DECREED that the petition for review

 4   is DENIED in part and DISMISSED in part.

 5       Petitioner Michael Javier Macias-Brito, a native and

 6   citizen of Ecuador, seeks review of the November 17, 2008

 7   decision of the BIA, which affirmed the October 2, 2007

 8   decision of Immigration Judge (“IJ”) Gabriel C. Videla.     The

 9   IJ denied petitioner’s applications for cancellation of

10   removal and voluntary departure, held that petitioner had

11   waived the ability to seek a waiver of inadmissibility and

12   adjustment of status, and denied petitioner’s motion for

13   reconsideration.

14       We presume the parties’ familiarity with the underlying

15   facts and the procedural history of the case.   In the

16   petition for review, petitioner does not dispute the IJ’s


                                   2
 1   denial of his application for a cancellation of removal.

 2   Rather, he challenges the IJ’s conclusions relating to his

 3   ability to seek a waiver of inadmissibility and adjustment

 4   of status, and the IJ’s denial of his request for voluntary

 5   departure.

 6       Petitioner first contends that the IJ committed legal

 7   error by holding that petitioner had waived his ability to

 8   seek:   (1) a waiver of inadmissibility pursuant to § 212(h)

 9   of the Immigration and Nationality Act (“INA”), 8 U.S.C. §

10   1182(h); and (2) an adjustment of status pursuant to §

11   245(i) of the INA, id. § 1255(i).    The IJ reached these

12   conclusions based on the failure of petitioner’s counsel to

13   comply with the submission deadlines that he set during

14   petitioner’s administrative hearing.     We review such

15   decisions for abuse of discretion.     See Dedji v. Mukasey,

16   525 F.3d 187, 191 (2d Cir. 2008).

17       The transcript of petitioner’s hearing demonstrates

18   that, on January 19, 2007, the IJ directed petitioner’s

19   counsel to submit, by May 18, 2007, petitioner’s “adjustment

20   application and the waiver application and proof that he’s .

21   . . prima faci[e] eligible.”   The IJ made clear that May 18

22   would be the deadline for petitioner to submit his relevant

23   applications, and warned that the date would be the “final


                                    3
 1   date for all applications for relief.”             To the extent that

 2   the IJ’s instructions were ambiguous, it was incumbent upon

 3   counsel to seek clarification because petitioner bore the

 4   burden of demonstrating that he was entitled to relief.                 See

 5   8 C.F.R. § 1240.8.       Counsel failed to do so, and petitioner

 6   did not submit the materials by the May 18, 2008 deadline

 7   set by the IJ.      Under those circumstances, the IJ did not

 8   abuse his discretion in determining that petitioner waived

 9   the opportunity to submit applications for a waiver of

10   inadmissibility and an adjustment of status.              See id.

11   § 1003.31(c). 1    We further conclude that petitioner has not

12   identified any meritorious basis — constitutional or

13   otherwise — for finding that the IJ abused his discretion in

14   denying petitioner’s motion for reconsideration of these

15   issues.    Therefore, the petition for review is denied

16   insofar as it challenges the IJ’s decisions relating to

17   petitioner’s ability to seek a waiver of inadmissibility and

18   an adjustment of status.

19        Petitioner’s second principal contention is that the IJ


     1
        In his brief in support of the petition for review, petitioner raises a
     series of contentions relating to “procedures required for the submission of
     relief applications in removal proceedings adopted in 2006 by [United States
     Citizenship and Immigration Services] and [the Executive Office for
     Immigration Review].” Petitioner did not present these arguments to the BIA
     in his direct appeal of the IJ’s decision, and he therefore may not press them
     here. See Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 107 & n.1 (2d Cir.
     2007); see also Steevenez v. Gonzales, 476 F.3d 114, 117 (2d Cir. 2007)
     (citing 8 U.S.C. § 1252(d)(1)).

                                           4
 1   wrongly denied his application for voluntary departure

 2   pursuant to INA § 240B(b), 8 U.S.C. § 1229c(b).     Our

 3   jurisdiction over this aspect of the petition is limited to

 4   the examination of colorable constitutional and legal

 5   questions presented therein.    See Carcamo v. U.S. Dep’t of

 6   Justice, 498 F.3d 94, 97 (2d Cir. 2007) (citing 8 U.S.C. §§

 7   1229c(f), 1252(a)(2)(B)(i)).    At bottom, however, petitioner

 8   challenges the factual determinations of IJ.    When

 9   presenting such contentions, the “‘talismanic invocation of

10   the language of due process’ is insufficient to confer

11   jurisdiction on this Court.”    Id. at 98 (quoting Saloum v.

12   U.S. Citizenship & Immig. Servs., 437 F.3d 238, 243 (2d Cir.

13   2006)).   Consequently, the petition for review is dismissed

14   to the extent that it challenges the BIA’s denial of

15   petitioner’s application for voluntary departure.

16       We have reviewed all of petitioner’s arguments and find

17   them to be without merit.   Accordingly, the petition for

18   review is DENIED in part and DISMISSED in part, and the

19   pending motion for a stay of removal is DISMISSED as moot.
20
21                                  For the Court
22                                  Catherine O’Hagan Wolfe, Clerk
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