         11-2092-ag
         King v. Holder
                                                                                        BIA
                                                                                   Straus, IJ
                                                                               A047 569 681


                               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
 2       the Second Circuit, held at the Daniel Patrick Moynihan United
 3       States Courthouse, 500 Pearl Street, in the City of New York, on
 4       the 29th day of March, two thousand twelve.
 5
 6       PRESENT:
 7                 ROBERT D. SACK,
 8                 DEBRA ANN LIVINGSTON,
 9                 GERARD E. LYNCH,
10                      Circuit Judges.
11       _____________________________________
12
13       DEVON IAN KING,
14                 Petitioner,
15
16                        v.                              11-2092-ag
17
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                 Respondent.
21       _______________________________________
22
23       FOR PETITIONER:                Glenn L. Formica, Formica, P.C., New
24                                      Haven, Connecticut.
25
26       FOR RESPONDENT:                Tony West, Assistant Attorney General;
27                                      Greg D. Mack, Senior Litigation Counsel;
28                                      Manuel A. Palau, Trial Attorney, Civil
29                                      Division, United States Department of
30                                      Justice, Washington, D.C.
31
 1        UPON DUE CONSIDERATION of this petition for review of a Board

 2   of Immigration Appeals (“BIA”) decision, it is hereby ORDERED,

 3   ADJUDGED, AND DECREED that the petition for review is DENIED.

 4        Petitioner Devon Ian King, a native and citizen of Jamaica,

 5   seeks review of an April 25, 2011, order of the BIA, affirming the

 6   January 11, 2010, decision of Immigration Judge (“IJ”) Michael W.

 7   Straus,     which     denied     his     application     for     a     waiver   of

 8   inadmissibility.      In re Devon Ian King, No. A047 569 681 (B.I.A.

 9   Apr. 25, 2011), aff’g No. A047 569 681 (Immig. Ct. Hartford, Conn.

10   Jan. 11, 2010).        We assume the parties’ familiarity with the

11   underlying facts and procedural history of this case.

12        We have reviewed both the IJ’s and BIA’s decisions “for the

13   sake of completeness.”         See Zaman v. Mukasey, 514 F.3d 233, 237 (2d

14   Cir. 2008) (internal quotation marks omitted).                   The applicable

15   standards    of     review     are    well   established.        See    8   U.S.C.

16   § 1252(b)(4)(B); Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

17   Because King is challenging the denial of discretionary relief

18   under 8 U.S.C. § 1182(i), we have jurisdiction to review only

19   constitutional       claims     and     questions   of    law.          8   U.S.C.

20   § 1252(a)(2)(B), (D).

21        King argues that the IJ erred by finding him inadmissible on

22   grounds of fraud or willful misrepresentation under 8 U.S.C.

23   § 1182(a)(6)(C)(i). Petitioner did not raise this issue before the

24   BIA, which consequently did not address it.              “[W]e are precluded


                                              2
 1   from considering this challenge because [Petitioner] failed to

 2   raise this issue before the BIA, and the government raises issue

 3   exhaustion as an affirmative defense.”         Khan v. Gonzales, 495 F.3d

 4   31, 36 (2d Cir. 2007).

 5           King also asserts that the BIA improperly relied on Matter of

 6   Mendez-Moralez, 21 I. & N. Dec. 296, 299-300 (B.I.A. 1996), a case

 7   involving a waiver application under 8 U.S.C. § 1182(h), in

 8   balancing the equities within the context of its discretionary

 9   determination under 8 U.S.C. § 1182(i).1           Mendez-Moralez requires

10   an “Immigration Judge [to] balance the adverse factors evidencing

11   an alien’s undesirability as a permanent resident with the social

12   and humane considerations presented on his behalf to determine

13   whether the grant of relief in the exercise of discretion appears

14   to be in the best interests of this country.”              Id. at 300.

15           We need not reach the question whether the BIA correctly

16   applied the standard from Mendez-Moralez to Petitioner’s case,

17   because the only negative equities considered by either the IJ or

18   the BIA were the various misrepresentations Petitioner made in

19   seeking to remain in this country.        The BIA has made clear that

20   fraud or misrepresentation in seeking an immigration benefit may

21   “properly [be] considered . . . as an adverse factor in denying .

22   .   .   relief   under   section   [1182(i)]   .   .   .    as   a   matter   of



               1
                This contention raises a question of law, over which we
         may exercise jurisdiction. See 8 U.S.C. § 1252(a)(2)(D).

                                          3
 1   discretion.”   Matter of Cervantes-Gonzales, 22 I. & N. Dec. 560,

 2   569 (B.I.A. 1999).    Petitioner does not challenge the actual

 3   weighing of his misrepresentations against the positive equities

 4   involved in his case, and, even if he did, we would have no

 5   jurisdiction to review the IJ’s and BIA’s discretion in weighing

 6   these equities.   See 8 U.S.C. § 1252(a)(2)(B).   Accordingly, the

 7   rule of Cervantes-Gonzales is dispositive.2

 8        For the foregoing reasons, the petition for review is DENIED.

 9   As we have completed our review, any stay of removal that the Court

10   previously granted in this petition is VACATED, and the pending

11   motion for a stay of removal in this petition is DISMISSED as moot.

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




            2
              Because we affirm the BIA’s determination that Petitioner
       would not be entitled to discretionary relief under 8 U.S.C.
       § 1182(i) even had he shown extreme hardship, we do not reach
       the question whether the IJ erred in concluding that Petitioner
       failed to show such hardship.

                                     4
