     15-706
     Torres Peralta v. Sessions
                                                                                                   BIA
                                                                                           A096 579 450

                                  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
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   22nd day of February, two thousand seventeen.
 5
 6   PRESENT:
 7            JOSÉ A. CABRANES,
 8            GERARD E. LYNCH,
 9            RAYMOND J. LOHIER, JR.,
10                 Circuit Judges.
11   _____________________________________
12
13   RAFAEL ANTONIO TORRES PERALTA,
14            Petitioner,
15
16                       v.                                                    15-706
17                                                                             NAC
18   JEFF SESSIONS, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                          Lawrence Spivak, Jamaica, NY.
24
25   FOR RESPONDENT:                          Benjamin C. Mizer, Principal Deputy
26                                            Assistant Attorney General; John S.
27                                            Hogan, Assistant Director; Samuel P.
28                                            Go, Senior Litigation Counsel,
29                                            Office of Immigration Litigation,

      Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Jeff Sessions is
     automatically substituted for former Attorney General Loretta E. Lynch as Respondent.
1                                United States Department of Justice,
2                                Washington, DC.
3
4        UPON DUE CONSIDERATION of this petition for review of a

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

6    ORDERED, ADJUDGED, AND DECREED that the petition for review is

7    DENIED.

8        Petitioner Rafael Antonio Torres Peralta, a native and

9    citizen of the Dominican Republic, seeks review of a February

10   4, 2015, decision of the BIA denying his motion to reconsider.

11   In re Rafael Antonio Torres Peralta, No. A096 579 450 (B.I.A.

12   Feb. 4, 2015).   We assume the parties’ familiarity with the

13   underlying facts and procedural history in this case.

14       As an initial matter, because Torres Peralta has timely

15   petitioned for review of the denial of a motion to reconsider,

16   but not from the underlying decision for which reconsideration

17   was sought, we review only the denial of his motion to

18   reconsider.   See Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d

19   83, 89-90 (2d Cir. 2001).   We have reviewed the denial of his

20   motion to reconsider for abuse of discretion.   See Jian Hui Shao

21   v. Mukasey, 546 F.3d 138, 173 (2d Cir. 2008).      “A motion to

22   reconsider must specify errors of fact or law in the challenged

23   BIA decision and must be supported by pertinent authority.”

24   Id.; see 8 U.S.C. § 1229a(c)(6)(C); 8 C.F.R. § 1003.2(b)(1).

                                    2
1        Torres   Peralta   sought   reconsideration   of   the   BIA’s

2    decision that found him removable for attempting to gain

3    immigration benefits by entering into a fraudulent marriage and

4    that denied cancellation of removal based on his failure to

5    establish the requisite good moral character.     The BIA did not

6    abuse its discretion in concluding that Torres Peralta failed

7    to identify any error of law or fact in its prior decision.

8        Contrary to Torres Peralta’s contention, the agency did not

9    ignore material evidence or deprive him an opportunity to

10   explain inconsistencies in the record regarding the bona fides

11   of his marriage.   And thus he did not demonstrate an error of

12   law to this extent.

13       Moreover, as the BIA noted, Torres Peralta was not prima

14   facie eligible to adjust status based on a visa petition filed

15   on his behalf by his U.S. citizen son because the agency was

16   barred by statute from granting that petition.      See 8 U.S.C.

17   §§ 1154(c) (barring approval of visa petitions on behalf of

18   aliens who the agency has found previously engaged in marriage

19   fraud for immigration benefits), 1255(a) (requiring an

20   immediately available immigrant visa for adjustment of status).

21   And, finally, because Torres Peralta admitted that he made a

22   false statement to immigration officials regarding whether he

23   was living with his wife, he did not demonstrate an error of
                                   3
1    law or fact in the agency’s determination that he did not

2    demonstrate the requisite good moral character for cancellation

3    of removal.   See 8 U.S.C. § 1229b(b)(1)(B); see also Jian Hui

4    Shao, 546 F.3d at 173.

5        For the foregoing reasons, the petition for review is

6    DENIED. Any pending request for oral argument in this petition

7    is DENIED in accordance with Federal Rule of Appellate Procedure

8    34(a)(2), and Second Circuit Local Rule 34.1(b).

 9                                FOR THE COURT:
10                                Catherine O’Hagan Wolfe, Clerk




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