         10-3527-ag
         Llanos-Fernandez 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 for the Second Circuit, held at the
2        Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on
3        the 14th day of March, two thousand twelve.

 4       Present:
 5                DEBRA ANN LIVINGSTON,
 6                RAYMOND J. LOHIER, JR.,
 7                         Circuit Judges,
 8                JED S. RAKOFF,
 9                         District Judge.*
10       _____________________________________________

11       EDISON IGNACIO LLANOS-FERNANDEZ, A/K/A EDISON JARA-FERNANDEZ,

12                    Petitioner,

13                                  v.                                   No. 10-3527-ag

14       ERIC H. HOLDER, JR., UNITED STATES ATTORNEY GENERAL,

15                Respondent.
16       _____________________________________________

17       For Petitioner:                       GLENN L. FORMICA, Elyssa N. Williams, Formica, P.C., New
18                                             Haven, Conn.

19       For Respondent:                       LAURA HALLIDAY HICKEIN, Trial Attorney, Office of
20                                             Immigration Litigation, Civil Division (Tony West, Assistant

                 *
                The Honorable Jed S. Rakoff, of the United States District Court for the Southern District
         of New York, sitting by designation.

                                                                1
 1                                      Attorney General, Civil Division; Jennifer P. Levings, Senior
 2                                      Litigation Counsel, Office of Immigration Litigation, on the
 3                                      brief), U.S. Department of Justice, Washington, D.C.

 4          UPON DUE CONSIDERATION of this petition for review of a Board of Immigration

 5   Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, and DECREED that the petition

 6   for review is DISMISSED.

 7          Edison Ignacio Llanos-Fernandez, a native and citizen of Ecuador, seeks review of an August

 8   3, 2010, order of the BIA affirming the November 9, 2009, decision of Immigration Judge (“IJ”)

 9   Michael W. Straus, denying his application for adjustment of status and waiver of inadmissibility.

10   In re Llanos-Fernandez, No. A077 667 913 (B.I.A. Aug. 3, 2010), aff’g No. A077 667 913 (Immig.

11   Ct. Hartford, Conn., Nov. 9, 2009). We assume the parties’ familiarity with the underlying facts and

12   procedural history in this case. Because the BIA adopted the IJ’s decision, emphasizing particular

13   aspects of that decision without rejecting any of its reasoning, we review the IJ’s decision as

14   supplemented by the BIA. See Singh v. Gonzales, 468 F.3d 135, 137 (2d Cir. 2006).

15          We generally lack jurisdiction to review the discretionary denial of an adjustment

16   application. See 8 U.S.C. § 1252(a)(2)(B); Ling Yang v. Mukasey, 514 F.3d 278, 279–80 (2d Cir.

17   2008) (per curiam). However, we retain jurisdiction to review colorable constitutional claims or

18   questions of law, such as an IJ’s determination that an alien is statutorily ineligible to adjust his

19   immigration status. See 8 U.S.C. § 1252(a)(2)(D); Sepulveda v. Gonzales, 407 F.3d 59, 62–63 (2d

20   Cir. 2005) (an alien’s statutory eligibility for relief is a question of law). When the IJ denies an

21   adjustment application based on both eligibility and discretionary reasons, the discretionary reason

22   will bar review if it is based on factors independent from the IJ’s eligibility determination. See Ling

23   Yang, 514 F.3d at 280.


                                                       2
 1          Llanos-Fernandez contends that the IJ erred by finding him ineligible to adjust his

 2   immigration status to that of a lawful permanent resident pursuant to § 245 of the Immigration and

 3   Nationality Act. Although the IJ found that Llanos-Fernandez was ineligible for adjustment of

 4   status, the IJ also denied the application in the alternative as a matter of discretion. He based his

 5   discretionary denial on independent grounds, including the seriousness of Llanos-Fernandez’s

 6   criminal convictions, Llanos-Fernandez’s other criminal conduct for which he was not convicted,

 7   and the lack of evidence that he had been rehabilitated. Because the IJ’s discretionary denial was

 8   based on factors independent from his eligibility determination, “including criminal conduct for

 9   which [Llanos-Fernandez] was not convicted, . . . . we lack jurisdiction over this determination.”

10   Ling Yang, 514 F.3d at 280.

11          For the foregoing reasons, the petition for review is DISMISSED. As we have completed

12   our review, any stay of removal that the Court previously granted in this petition is VACATED, and

13   any pending motion for a stay of removal in this petition is DISMISSED as moot.

14                                                         FOR THE COURT:
15                                                         Catherine O’Hagan Wolfe, Clerk


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