         10-345-ag
         Nathaniel v. Holder
                                                                                       BIA
                                                                                  Weisel, IJ
                                                                               A035 400 809


                                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
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 20th day of May, two thousand eleven.
 5
 6       PRESENT:
 7                JOSÉ A. CABRANES,
 8                BARRINGTON D. PARKER,
 9                RICHARD C. WESLEY,
10                      Circuit Judges.
11       _______________________________________
12
13       MAXIMIN PATRICK NATHANIAL, A.K.A.
14       “MAXIM PATRICK”
15                Petitioner,
16
17                             v.                               10-345-ag
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL
21                Respondent.
22       ______________________________________
23
24       FOR PETITIONER:                 H. Raymond Fasano, Madeo & Fasano,
25                                       New York, New York.
26
27       FOR RESPONDENT:                 Tony West, Assistant Attorney
28                                       General; Anthony W. Norwood, Senior
 1                           Litigation Counsel; Hillel R. Smith,
 2                           Trial Attorney, Office of
 3                           Immigration Litigation, Civil
 4                           Division, United States Department
 5                           of Justice, Washington, D.C.
 6
 7       UPON DUE CONSIDERATION of this petition for review of a

 8   Board of Immigration Appeals (“BIA”) decision, it is hereby

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

10   is DENIED.

11       Petitioner Maximin Patrick Nathaniel, a native and

12   citizen of Trinidad, seeks review of a December 31, 2009,

13   decision of the BIA reversing the February 12, 2007,

14   decision of Immigration Judge (“IJ”) Robert D. Weisel

15   granting Nathaniel a waiver of inadmissibility under section

16   212(h) of the Immigration and Nationality Act (“INA”).     In

17   re Maximin Patrick Nathaniel, No. A035 400 809 (B.I.A. Dec.

18   31, 2009), rev’g No. A035 400 809 (Immig. Ct. N.Y. City Feb.

19   12, 2007).   We assume the parties’ familiarity with the

20   underlying facts and procedural history in this case.

21       Under the circumstances of this case, we review only

22   the decision of the BIA.   See Yan Chen v. Gonzales, 417 F.3d

23   268, 271 (2d Cir. 2005).   The applicable standards of review

24   are well-established.   See 8 U.S.C. § 1252(b)(4)(B); Yanqin

25   Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).


                                   2
 1       Because Nathaniel is challenging the denial of

 2   discretionary relief and because his final order of removal

 3   was based on a criminal conviction covered by Immigration

 4   and Nationality Act § 212(a)(2)(A)(i)(II) (relating to a

 5   violation of a law relating to a controlled substance), our

 6   jurisdiction is limited to review of constitutional claims

 7   and questions of law raised in petitions for review.       See

 8   8 U.S.C. § 1252(a)(2)(B)-(D).       Because Nathaniel argues that

 9   the BIA violated its own regulations by engaging in

10   impermissible fact-finding, we have jurisdiction to review

11   his claim.    See Padmore v. Holder, 609 F.3d 62, 66-69 (2d

12   Cir. 2010) (holding that whether the BIA impermissibly made

13   factual findings is a reviewable question of law).

14       However, Nathaniel’s argument that the BIA violated

15   8 C.F.R. § 1003.1(d)(3)(iv) by engaging in fact-finding is

16   unavailing.   Section 1003.1(d)(3)(iv) provides, in relevant

17   part, that “[e]xcept for taking administrative notice of

18   commonly known facts such as current events or the contents

19   of official documents, the [BIA] will not engage in

20   factfinding in the courts of deciding appeals . . . .          If

21   further factfinding is needed in a particular case, the

22   [BIA] may remand the proceeding to the IJ . . . .”       The


                                     3
 1   regulation was intended to restrict the introduction of new

 2   evidence before the BIA, “not the reevaluation of evidence

 3   obtained by the IJ previously.”     Belortaja v. Gonzales, 484

 4   F.3d 619, 625 (2d Cir. 2007); see also Padmore, 609 F.3d at

 5   68 (finding that the BIA exceeded its authority when “the

 6   BIA decided to reverse the IJ . . . based on disputed

 7   material facts with respect to which the IJ reached no

 8   resolution.”).

 9       Here, the BIA did not find any new facts, but rather

10   observed that the IJ had not treated one of Nathaniel’s

11   alleged children as a qualifying relative because

12   Nathaniel’s name was not listed on her birth certificate,

13   and noted that the IJ had found that Nathaniel’s older son

14   had testified that he often travels to Trinidad and that the

15   record did not suggest that Nathaniel’s daughter could not

16   do the same.     Accordingly, because the BIA did not make new

17   factual determinations of disputed factual questions or rely

18   on facts outside of the record, the BIA did not engage in

19   factfinding in violation of 8 C.F.R. § 1003.1(d)(3)(iv).

20   See Padmore, 609 F.3d at 69.     Thus, Nathaniel’s claim that

21   the BIA erred as a matter of law fails, and we are without

22   jurisdiction to further review the BIA’s determination that


                                     4
 1   he did not establish “extreme hardship.”    See Bugayong v.

 2   INS, 442 F.3d 67, 73 (2d Cir. 2006) (“[A] finding of either

 3   ‘extreme hardship’ or ‘exceptional and unusual hardship’ is

 4   itself a discretionary determination that we have no

 5   jurisdiction to review.”).

 6       For the foregoing reasons, the petition for review is

 7   DENIED.   As we have completed our review, any stay of

 8   removal that the Court previously granted in this petition

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

10   this petition is DISMISSED as moot.    Any pending request for

11   oral argument in this petition is DENIED in accordance with

12   Federal Rule of Appellate Procedure 34(a)(2), and Second

13   Circuit Local Rule 34.1(b).

14                                 FOR THE COURT:
15                                 Catherine O’Hagan Wolfe, Clerk
16
17




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