09-2892-ag

McKenzie v. Holder BIA Vomacka,IJ A037 141 191 

### UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 

# SUM MARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARYO RDER 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 14 day of September, two thousand ten. th 5 6 PRESENT: 7 GUIDO CALABRESI, 8 PETER W. HALL, 9 DENNY CHIN, 10 C ircuit Judges . 11

_______________________________________ 12 13 NIGEL PAUL MCKENZIE, 14 Petitioner , 15 16 v. 09-2892-ag 17 18 ERIC H. HOLDER, JR., U.S. ATTORNEY 19 GENERAL, BOARD OF IMMIGRATION APPEALS, 20 Respondents . 21

______________________________________ 22 23 FOR PETITIONER: Vivian M. Williams, New York, New 24 York. 25 26 FOR RESPONDENTS: Tony West, Assistant Attorney 27 General; Ernesto H. Molina, Jr., 28 Assistant Director ; Drew C. 29 Brinkman, Trial Attorney, Office of 30 Immigration Litigation, Washington 31 D.C.2 1 UPON DUE CONSIDERATION of this petition for review of a 2 Board of Immigration Appeals (“BIA”) decision, it is hereby 3 ORDERED, ADJUDGED, AND DECREED that the petition for review 4 is DENIED. 5 Petitioner Nigel Paul McKenzie, a native and citizen of 6 Guyana, seeks review of the May 29, 2009, order of the BIA 7 affirming the January 6, 2009, decision of Immigration Judge 8 (“IJ”) Alan A. Vomacka denying his application for a waiver 9 of inadmissibility under former Immigration and Nationality 1 0 Act § 212(c) (repealed 1996) and his application for 1 1 withholding of removal and relief under the Convention 1 2 Against Torture (“CAT”). In re Nigel Paul McKenzie , No. 1 3 A037 141 191 (B.I.A. May 29, 2009), aff’gNo. A037 141 191 1 4 (Immig. Ct. N.Y. City Jan. 6, 2009). We assume the parties’ 1 5 familiarity with the underlying facts and procedural history 1 6 in this case. 1 7 Under the circumstances of this case, we review the 1 8 decision of the IJ as supplemented by the BIA. See Yan Chen 19 v. Gonzales , 417 F.3d 268, 271 (2d Cir. 2005). The 2 0 applicable standards of review are well-established. 21 See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder , 562 2 2 F.3d 510, 513 (2d Cir. 2009).3 1 Under 8 U.S.C. § 1252(a)(2)(C), “no court shall have 2 jurisdiction to review any final order of removal against an 3 alien who is removable by reason of having committed a 4 criminal offense covered in [INA] section 212(a)(2).” Here, 5 the Notice to Appear charged McKenzie with inadmissibility 6 under INA § 212(a)(2)(A)(i)(II) based on his conviction for 7 a controlled substance violation. Therefore, we are without 8 jurisdiction to consider the BIA’s removal order. 9 8 U.S.C. § 1252(a)(2)(C); see also Noble v. Keisler , 505 1 0 F.3d 73, 77 (2d Cir. 2007). We similarly lack jurisdiction 1 1 to consider the BIA’s discretionary denial of McKenzie’s 1 2 application for a waiver of inadmissibility under former INA 1 3 § 212(c). See 8 U.S.C. § 1252(a)(2)(B)(ii); see also 14 Nethagani v. Mukasey , 532 F.3d 150, 154 n.2 (2d Cir. 2008). 1 5 Notwithstanding these provisions, we retain jurisdiction to 1 6 consider any “constitutional claims or questions of law” 1 7 raised in McKenzie’s petition for review. 8 U.S.C. 1 8 § 1252(a)(2)(D). 1 9 McKenzie argues that the BIA erred by failing to 2 0 consider his children’s medical history, the separation of 2 1 his family, and the financial difficulties and hardship his 2 2 family would face if he were deported in assessing his4 1 eligibility for a waiver of inadmissibility. To the 2 contrary, the BIA explicitly referred to “evidence of 3 hardship to the respondent and family if deportation 4 occurs,” as well as noting that McKenzie’s “two youngest 5 children suffer from serious medical conditions” and that 6 “removal will unquestionably cause them hardship since they 7 could be deprived of his financial and emotional support.” 8 Thus, McKenzie is essentially disputing the weight that the 9 BIA chose to give to each of these factors, and, as noted 1 0 above, the Court lacks jurisdiction to consider that 1 1 argument. See 8 U.S.C. § 1252(a)(2)(B); Nethagani , 532 F.3d 1 2 at 154 n.2. McKenzie also argues that the IJ erred by 1 3 giving “undue weight” to issues that arose after he 1 4 “initially pleaded to allegations giving rise to the charges 1 5 of deportability.” Again, he is merely disputing the 1 6 correctness of the IJ’s discretionary balancing of the 1 7 equities. See 8 U.S.C. § 1252(a)(2)(B). Furthermore as the 1 8 government asserts, McKenzie “cites no law to support the 1 9 novel proposition that an Immigration Judge may not consider 2 0 facts arising after an alien pleads to charges of 2 1 removability when adjudicating the alien’s claims for relief 2 2 from removal.”5 1 With respect to his application for withholding of 2 removal and CAT relief, McKenzie argues that the BIA 3 committed legal error by applying a “more than 50%” 4 likelihood standard to his claims for withholding of removal 5 and CAT relief. This argument raises a question of law 6 which we retain jurisdiction to review. See Barco-Sandoval 7 v. Gonzales , 516 F.3d 35, 39-41 (2d Cir. 2008). However, 8 the record indicates that the BIA applied the correct “more 9 likely than not standard” to those claims. See Gao v. 10 Gonzales , 424 F.3d 122, 128-29 (2d Cir. 2005); INS v. 11 Cardoza-Fonseca , 480 U.S. 421, 423 (1987). Furthermore, 1 2 McKenzie failed to exhaust his argument that he demonstrated 1 3 a nexus to a protected ground based on his cousin’s alleged 1 4 “entrapment” by not raising that issue before the BIA. See 15 Foster v. INS , 376 F.3d 75, 78 (2d Cir. 2004). Finally, 1 6 McKenzie’s argument that the IJ’s decision was contradictory 1 7 with respect to whether he demonstrated sufficient 1 8 rehabilitation is again a dispute over the IJ’s exercise of 1 9 discretion, and we are therefore without jurisdiction to 2 0 consider it. See 8 U.S.C. § 1252(a)(2)(B), (C). 2 1 For the foregoing reasons, the petition for review is 2 2 DENIED. As we have completed our review, any stay of6 1 removal that the Court previously granted in this petition 2 is VACATED, and any pending motion for a stay of removal in 3 this petition is DISMISSED as moot. Any pending request for 4 oral argument in this petition is DENIED in accordance with 5 Federal Rule of Appellate Procedure 34(a)(2), and Second 6 Circuit Local Rule 34.1(b). 7 FOR THE COURT: 8 Catherine O’Hagan Wolfe, Clerk 9