     14-2779
     Kim v. Lynch
                                                                                                   BIA
                                                                                              Cheng, IJ
                                                                                           A091 253 226



                                  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 for the Second Circuit, held at
 2   the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
 3   York, on the 3rd day of November, two thousand fifteen.
 4
 5   PRESENT:
 6               DEBRA ANN LIVINGSTON,
 7               CHRISTOPHER F. DRONEY,
 8                     Circuit Judges,
                                     
 9               SIDNEY H. STEIN,
10                     District Judge.
11   _____________________________________
12
13   WON KYENG KIM, AKA XX KIM WON K,
14   AKA KYOUNG K. WON, AKA WONK YENG
15   KIM, AKA KYENG W. KIM, AKA KIM WON
16   KYONG, AKA KIM WON KYENG, AKA
17   KYENG KIMWON,
18
19                  Petitioner,
20
21                  v.                                                         14-2779
22
23   LORETTA E. LYNCH, UNITED STATES


     
      The Honorable Sidney H. Stein, of the United States District Court for the Southern District of
     New York, sitting by designation.
 1   ATTORNEY GENERAL,
 2
 3               Respondent.
 4   _____________________________________
 5   FOR PETITIONER:            DAVID K. S. KIM, Flushing, New York.
 6
 7   FOR RESPONDENT:                    HILLEL R. SMITH, Attorney; Joyce R. Branda,
 8                                      Acting Assistant Attorney General;
 9                                      Terri J. Scadron, Assistant Director,
10                                      Office of Immigration Litigation,
11                                      United States Department of
12                                      Justice, Washington, D.C.
13
14          UPON DUE CONSIDERATION of this petition for review of a Board of Immigration

15   Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND DECREED that the

16   petition for review is DISMISSED.

17          Petitioner Won Kyeng Kim, a native and citizen of South Korea, seeks review of a July 7,

18   2014, decision of the BIA affirming the December 27, 2012, decision of an Immigration Judge

19   (“IJ”) denying cancellation of removal as a matter of discretion and ordering Kim removed. In re

20   Won Kyeng Kim, No. A 091-253-226 (B.I.A. July 7, 2014), aff’g No. A 091-253-226 (Immig. Ct.

21   New York, N.Y. Dec. 27, 2012). We assume the parties’ familiarity with the underlying facts,

22   procedural history, and issues on appeal in this case.

23          We lack jurisdiction to review the agency’s denial of cancellation of removal as a matter of

24   discretion. 8 U.S.C. § 1252(a)(2)(B); Barco-Sandoval v. Gonzales, 516 F.3d 35, 38-40 (2d Cir.

25   2007). Nevertheless, we retain jurisdiction insofar as the petition for review raises “constitutional

26   claims or questions of law,” 8 U.S.C. § 1252(a)(2)(D), which we review de novo, Pierre v. Holder,

27   588 F.3d 767, 772 (2d Cir. 2009). To determine whether jurisdiction exists in a particular case,

28   we “study the arguments asserted,” and consider, “regardless of the rhetoric employed in the

29   petition, whether it merely quarrels over the correctness of the factual findings or justification for

                                                       2
1    the discretionary choices, in which case [we] lack jurisdiction, or whether it instead raises a

2    ‘constitutional claim’ or ‘question of law,’ in which case [we may] exercise jurisdiction to review

3    those particular issues.” Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d Cir. 2006).

4    “[W]e lack jurisdiction to review any legal argument that is so insubstantial and frivolous as to be

5    inadequate to invoke federal-question jurisdiction.” Barco-Sandoval, 516 F.3d at 40.

6           Kim argues that the agency erred as a matter of law in failing to consider all of his positive

7    equities, in weighing the positive and negative factors in his case, and in determining, on the basis

8    of the record, that he lacked remorse and failed to accept responsibility for his criminal behavior.

9    We lack jurisdiction to consider these contentions: they raise no colorable legal arguments and

10   thus merely challenge the agency’s factual findings and discretionary choices. See Carcamo v.

11   U.S. Dep’t of Justice, 498 F.3d 94, 98 (2d Cir. 2007) (“[A]bsent clear proof that the factual basis

12   for an IJ’s decision was unambiguously contradicted by the record, a petitioner raises no

13   ‘constitutional claim[ ] or question[ ] of law’ for us to review.” (quoting 8 U.S.C. § 1252(a)(2)(D))

14   (alterations in original)); Morales v. INS, 208 F.3d 323, 328 (1st Cir. 2000) (“Where, as here, the

15   Board has given reasoned consideration to the petition, and made adequate findings, we will not

16   require that it address specifically each claim the petitioner made or each piece of evidence the

17   petitioner presented.” (quoting Martinez v. INS, 970 F.2d 973, 976 (1st Cir. 1992))); Henry v. INS,

18   74 F.3d 1, 5 (1st Cir. 1996) (“Even in section 212(c) waiver cases, the Marin [equitable] factors are

19   only illustrative. They do not comprise an invariable checklist.”). Kim further argues that the

20   agency offered an insufficient rational explanation for its decision. Both the BIA and the IJ

21   carefully examined and weighed Kim’s positive and negative factors in reaching their decisions.




                                                      3
1    “[T]he BIA is not required to ‘write an exegesis on every contention.’” Mansour v. INS, 230 F.3d

2    902, 908 (7th Cir. 2000) (quoting Becerra-Jimenez v. INS, 829 F.2d 996, 1000 (10th Cir. 1987)).

3           We also lack jurisdiction to consider Kim’s frivolous argument that the agency committed

4    legal error in relying on the criminal complaints filed against him.        “[P]olice reports and

5    complaints, even if containing hearsay and not a part of the formal record of conviction, are

6    appropriately admitted for the purposes of considering an application for discretionary relief.”

7    Carcamo, 498 F.3d at 98; see also In re Grijalva, 19 I. & N. Dec. 713, 722 (BIA 1988) (“[T]he

8    admission into the record of the information contained in the police reports is especially

9    appropriate in cases involving discretionary relief from deportation, where all relevant factors

10   concerning an arrest and conviction should be considered to determine whether an alien warrants a

11   favorable exercise of discretion.”). Although the agency is “hesitant to give substantial weight to

12   an arrest report, absent a conviction or corroborating evidence of the allegations contained

13   therein,” In re Arreguin De Rodriguez, 21 I. & N. Dec. 38, 42 (BIA 1995), the IJ did not rely on

14   uncorroborated criminal complaints in Kim’s case, but rather considered only criminal complaints

15   that ultimately led to convictions. And, contrary to Kim’s contention, the allegations of domestic

16   violence in the criminal complaint that resulted in Kim’s conviction for disorderly conduct were

17   corroborated by the issuance of an order of protection to protect Kim’s wife.

18          Accordingly, because Kim’s arguments merely challenge the IJ’s factual findings, we lack

19   jurisdiction over his petition. See 8 U.S.C. § 1252(a)(2)(B); Barco-Sandoval, 516 F.3d at 38-40;

20   Xiao Ji Chen, 471 F.3d at 329.

21          For the foregoing reasons, the petition for review is DISMISSED.

22                                                FOR THE COURT:
23                                                Catherine O=Hagan Wolfe, Clerk

                                                     4
