    10-3237-ag
    Novoa v. Holder
                                                                                  BIA
                                                                          A091 956 855
                       UNITED STATES COURT OF APPEALS
                           FOR THE SECOND CIRCUIT

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         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Daniel Patrick Moynihan
    United States Courthouse, 500 Pearl Street, in the City of
    New York, on the 3rd day of April, two thousand twelve.

    PRESENT:
             ROBERT A. KATZMANN,
             REENA RAGGI,
             RAYMOND J. LOHIER, JR.,
                  Circuit Judges.
    _______________________________________
    ALEJANDRO NOVOA TORRES, AKA ALEJANDRO
    NOVOA-TORRES,
             Petitioner,

                      v.                                   10-3237-ag
                                                           NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    ______________________________________

    FOR PETITIONER:               Jon E. Jessen, Stamford, CT.

    FOR RESPONDENT:               Tony West, Assistant Attorney
                                  General; Richard M. Evans, Assistant
                                  Director; Nancy E. Friedman, Senior
                                  Litigation Counsel, Office of
                                  Immigration Litigation, Civil
                                  Division, United States Department
                                  of Justice, Washington, D.C.
    UPON DUE CONSIDERATION of this petition for review of a

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

ORDERED, ADJUDGED, AND DECREED that the petition for review

is DENIED.

    Petitioner Alejandro Novoa Torres, a native and citizen

of Mexico, seeks review of a July 12, 2010 order of the BIA

denying his motion for reconsideration.     In re Alejandro

Novoa Torres, No. A091 956 855 (B.I.A. July 12, 2010).        We

assume the parties’ familiarity with the underlying facts

and procedural history in this case.

    We review the BIA’s denial of a motion for

reconsideration for abuse of discretion.     See Jin Ming Liu

v. Gonzales, 439 F.3d 109, 111 (2d Cir. 2006).     Our review

is limited to the BIA’s denial of the motion to reconsider,

and we are “precluded from passing on the merits of the

underlying exclusion proceedings.”     Ke Zhen Zhao v. U.S.

Dep’t of Justice, 265 F.3d 83, 90 (2d Cir. 2001).

    Novoa Torres was removable because of a controlled

substance conviction, which triggers the jurisdiction-

stripping provision of 8 U.S.C. § 1252(a)(2)(C).     Similarly,

the agency’s decision to deny a waiver of inadmissibility

under former section 212(c) of the Immigration and


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Nationality Act is a discretionary decision that we lack

jurisdiction to review.    8 U.S.C. § 1252(a)(2)(B)(ii); see

also Avendano-Espejo v. Dep’t of Homeland Sec., 448 F.3d

503, 505 (2d Cir. 2006).   These limits on our jurisdiction

extend to our review of the BIA’s denial of reconsideration.

See Durant v. INS, 393 F.3d 113, 115-16 (2d Cir. 2004); Khan

v. Gonzales, 495 F.3d 31, 35-37 (2d Cir. 2007).

Accordingly, our jurisdiction is limited to “constitutional

claims” and “questions of law.”    8 U.S.C. § 1252(a)(2)(D).

    The government argues that Novoa Torres does not

present a question of law because his motion for

reconsideration repeated arguments the BIA had previously

rejected.   However, because Novoa Torres’s motion asserted

that the BIA had made specific errors in its prior decision,

we consider whether the BIA abused its discretion in

rejecting Novoa Torres’s arguments.

    Novoa Torres’s motion for reconsideration argued that

the agency erred as a matter of law because the immigration

judge (“IJ”) applied an erroneous standard in deciding

whether to exercise discretion by considering whether Novoa

Torres had established “unusual or outstanding equities,”

rather than by considering the totality of the


                               3
circumstances.     The BIA found no error because it concluded

that the “unusual or outstanding equities” standard was

appropriate.     We have jurisdiction to determine whether the

agency applied a legally erroneous standard.      See Barco-

Sandoval v. Gonzales, 516 F.3d 35, 39 (2d Cir. 2008).

    In considering whether to exercise its discretion to

grant a section 212(c) waiver of inadmissibility, an IJ must

“balanc[e] ... the social and humane considerations

presented in an alien’s favor against the adverse factors

evidencing his undesirability as a permanent resident.”

Matter of Edwards, 20 I. & N. Dec. 191, 195 (BIA 1990).

“[A]s the negative factors grow more serious, it becomes

incumbent upon the alien to introduce additional offsetting

favorable evidence, which in some cases may have to involve

unusual or outstanding equities.”     Id.   In Matter of

Buscemi, 19 I. & N. Dec. 628 (BIA 1988), the BIA stated that

“an alien who demonstrates unusual or outstanding equities,

as required, merely satisfies the threshold test for having

a favorable exercise of discretion considered in his case.”

Id. at 634.    In Matter of Edwards, the BIA noted that its

statement in Matter of Buscemi could be “misleading, as it

might be read to imply that a full examination of an alien’s


                                4
equities can somehow be pretermitted.”    20 I. & N. Dec. at

196 n. 3.   To the contrary, the BIA said, “a proper

determination as to whether an alien has demonstrated

unusual or outstanding equities can only be made after a

complete review of the favorable factors in his case.”     Id.

    Here, although the agency used the “misleading”

language from Matter of Buscemi, the IJ applied the proper

standard from Matter of Edwards in reviewing and balancing

all of the relevant factors.   Accordingly, we conclude that

the BIA did not abuse its discretion in denying

reconsideration based on its conclusion that the IJ did not

apply the wrong standard.1

    Novoa Torres’s motion for reconsideration also argued

that the agency’s fact-finding was flawed as a matter of law

as the agency ignored the facts that his wife was pregnant

and that he had paid taxes since 1988.2   While the agency

       1
        Although we find no error in the standard applied,
  we note that the BIA’s statement that Matter of Sotelo-
  Sotelo, 23 I. & N. Dec. 201 (BIA 2001), did not apply to
  Novoa Torres’s case because he sought a § 212(c) waiver
  of inadmissibility rather than cancellation of removal is
  belied by the language in Matter of Sotelo-Sotelo noting
  that the standards are the same. See id. at 205.
       2
        Because our review is limited to the BIA’s denial
  of reconsideration we consider only the factors
  identified in both the motion for reconsideration and the
  brief to this Court.
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may commit an error of law where it “totally overlook[s]”

facts important to a discretionary determination, we detect

no such error of law in this case.     Mendez v. Holder, 566

F.3d 316, 322-23 (2d Cir. 2009).     The IJ did not overlook

the fact that Novoa Torres’s wife was pregnant because no

evidence of her pregnancy was presented to the IJ.     Further,

the IJ explicitly noted that Novoa Torres had paid taxes and

the IJ’s error in stating that Novoa Torres had filed tax

returns since 1998 when, in fact, he had filed them since

1988, was a minor error which did not constitute an error of

law.    See Mendez, 566 F.3d at 323 (“[T]he agency does not

commit an ‘error of law’ every time an item of evidence . .

. is described with imperfect accuracy.”).     Because the

appropriate standard was applied and the relevant factors

were considered, the BIA did not abuse its discretion in

rejecting Novoa Torres’s request for reconsideration.

       For the foregoing reasons, the petition for review is

DENIED.

                              FOR THE COURT:
                              Catherine O’Hagan Wolfe, Clerk




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