     17-1548
     Mansaray v. Barr
                                                                                   BIA
                                                                           A090 347 386
                             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 TO 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 Thurgood Marshall
 3   United States Courthouse, 40 Foley Square, in the City of
 4   New York, on the 8th day of July, two thousand nineteen.
 5
 6   PRESENT:
 7            JOSÉ A. CABRANES,
 8            GERARD E. LYNCH,
 9            SUSAN L. CARNEY,
10                 Circuit Judges.
11   _____________________________________
12
13   LANSANA MANSARAY,
14            Petitioner,
15
16                      v.                                       17-1548
17                                                               NAC
18   WILLIAM P. BARR, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                    Marc Reiter, Esq., Pittsburgh,
24                                      PA.
25
26   FOR RESPONDENT:                    Chad A. Readler, Acting Assistant
27                                      Attorney General; Kohsei Ugumori,
28                                      Senior Litigation Counsel; David
29                                      Kim, Trial Attorney, Office of
30                                      Immigration Litigation, United
31                                      States Department of Justice,
32                                      Washington, DC.
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 DISMISSED.

5         Petitioner Lansana Mansaray, a native and citizen of

6    Sierra Leone, seeks review of an April 11, 2017, decision of

7    the BIA denying his motion to reopen.            In re Lansana Mansaray,

8    No. A 090 347 386 (B.I.A. Apr. 11, 2017).                 We assume the

9    parties’ familiarity with the underlying facts and procedural

10   history in this case.

11        “We review the denial of motions to reopen immigration

12   proceedings for abuse of discretion, mindful that motions to

13   reopen ‘are disfavored.’”           Ali v. Gonzales, 448 F.3d 515, 517

14   (2d Cir. 2006) (quoting INS v. Doherty, 502 U.S. 314, 322-23

15   (1992)).    There is a one-year deadline for motions to reopen

16   removal proceedings to apply for lawful immigrant status

17   based on a Violence Against Women Act (“VAWA”) visa self-

18   petition filed by an alien physically present in the United

19   States.    8 U.S.C. § 1229a(c)(7)(C)(iv).            The parties do not

20   dispute    that   Mansaray’s    motion      to   reopen   was   untimely.

21   However, the BIA has discretion to “waive this time limitation

22   in   the   case   of   an   alien    who   demonstrates   extraordinary

                                           2
1    circumstances or extreme hardship to the alien’s child.”                8

2    U.S.C. § 1229a(c)(7)(C)(iv)(III).

3           Pursuant to 8 U.S.C. § 1252(a)(2)(B), “no court shall

4    have jurisdiction to review . . . (ii) any other decision

5    or action of the Attorney General . . . the authority for

6    which is specified under this subchapter to be in the

7    discretion of the Attorney General.”         Waiver of the time

8    limitation for battered spouses is specified to be “in the

9    Attorney General’s discretion.”          8 U.S.C.

10   § 1229a(c)(7)(C)(iv)(III).       Furthermore, the use in

11   § 1252(a)(2)(B)(ii)of the term “‘this subchapter’ refers to

12   subchapter II of Chapter 12 of Title 8 of the United States

13   Code, which includes §§ 1151-1381.”          Sanusi v. Gonzales,

14   445 F.3d 193, 198 (2d Cir. 2006).          Accordingly, our

15   jurisdiction to review the BIA’s decision on denying a

16   waiver of the time limitation is limited to “constitutional

17   claims or questions of law.”         8 U.S.C. § 1252(a)(2)(B),

18   (D).    We dismiss the petition because Mansaray has not

19   raised a colorable constitutional claim or question of law.

20          To invoke our jurisdiction, any constitutional claim or

21   question of law must be “colorable.”                 Barco-Sandoval v.

22   Gonzales,    516   F.3d   35,   40   (2d   Cir.     2008)   (“[W]e   lack

                                          3
1    jurisdiction     to   review   any       legal   argument    that    is   so

2    insubstantial and frivolous as to be inadequate to invoke

3    federal-question jurisdiction.”).                The agency may commit

4    legal error when its discretionary decision “is made without

5    rational   justification,”     Xiao       Ji   Chen   v.   U.S.   Dep’t   of

6    Justice, 471 F.3d 315, 329 (2d Cir. 2006), and its fact-

7    finding may be flawed by an error of law when “facts important

8    to [the discretionary] determination . . . have been totally

9    overlooked and others have been seriously mischaracterized,”

10   Mendez v. Holder, 566 F.3d 316, 323 (2d Cir. 2009).

11           The BIA’s written decision as to its discretionary

12   choice is not without “rational justification” because it

13   discussed and did not overlook the relevant evidence.                     The

14   BIA   reviewed   statements    from      Mansaray’s    friends      and   his

15   pastor and a letter from a caseworker for Mansaray’s sons,

16   and acknowledged a police complaint relating to Mansaray’s

17   wife.    The BIA also acknowledged Mansaray’s letter alleging

18   that he and his children had been abused by his wife and that

19   his conviction for endangering the welfare of children was

20   based on lies and was a result of absent-mindedness.                The BIA

21   found that Mansaray’s criminal conviction was relevant to its

22   discretionary determination and explained that it declined to

                                          4
1    credit Mansaray’s allegations about the conviction because

2    Mansaray had pleaded guilty.    Because the BIA considered all

3    of the evidence and gave a rational explanation for its

4    decision, Mansaray has not raised a colorable question of

5    law, and we lack jurisdiction to further review the BIA’s

6    discretionary determination not to waive the time limitation

7    for    the    motion   to      reopen.      See    8    U.S.C.

8    § 1229a(c)(7)(C)(iv)(III).

9          For the foregoing reasons, the petition for review is

10   DISMISSED.

11                                FOR THE COURT:
12                                Catherine O’Hagan Wolfe,
13                                Clerk of Court




                                     5
