09-2892-ag

McKenzie v. Holder

BIA

Vomacka, IJ

A037 141 191

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 14 day of September, two thousand ten. th

5

6 PRESENT:

7 GUIDO CALABRESI,

8 PETER W. HALL,

9 DENNY CHIN,

10 Circuit 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

10 Act § 212(c) (repealed 1996) and his application for

11 withholding of removal and relief under the Convention

12 Against Torture (“CAT”). In re Nigel Paul McKenzie, No.

13 A037 141 191 (B.I.A. May 29, 2009), aff’g No. A037 141 191

14 (Immig. Ct. N.Y. City Jan. 6, 2009). We assume the parties’

15 familiarity with the underlying facts and procedural history

16 in this case.

17 Under the circumstances of this case, we review the

18 decision of the IJ as supplemented by the BIA. See Yan Chen

19 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The

20 applicable standards of review are well-established. 

21 See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562

22 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

10 F.3d 73, 77 (2d Cir. 2007). We similarly lack jurisdiction

11 to consider the BIA’s discretionary denial of McKenzie’s

12 application for a waiver of inadmissibility under former INA

13 § 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). 

15 Notwithstanding these provisions, we retain jurisdiction to

16 consider any “constitutional claims or questions of law”

17 raised in McKenzie’s petition for review. 8 U.S.C.

18 § 1252(a)(2)(D). 

19 McKenzie argues that the BIA erred by failing to

20 consider his children’s medical history, the separation of

21 his family, and the financial difficulties and hardship his

22 family would face if he were deported in assessing his
4

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

10 above, the Court lacks jurisdiction to consider that

11 argument. See 8 U.S.C. § 1252(a)(2)(B); Nethagani, 532 F.3d

12 at 154 n.2. McKenzie also argues that the IJ erred by

13 giving “undue weight” to issues that arose after he

14 “initially pleaded to allegations giving rise to the charges

15 of deportability.” Again, he is merely disputing the

16 correctness of the IJ’s discretionary balancing of the

17 equities. See 8 U.S.C. § 1252(a)(2)(B). Furthermore as the

18 government asserts, McKenzie “cites no law to support the

19 novel proposition that an Immigration Judge may not consider

20 facts arising after an alien pleads to charges of

21 removability when adjudicating the alien’s claims for relief

22 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,

12 McKenzie failed to exhaust his argument that he demonstrated

13 a nexus to a protected ground based on his cousin’s alleged

14 “entrapment” by not raising that issue before the BIA. See

15 Foster v. INS, 376 F.3d 75, 78 (2d Cir. 2004). Finally,

16 McKenzie’s argument that the IJ’s decision was contradictory

17 with respect to whether he demonstrated sufficient

18 rehabilitation is again a dispute over the IJ’s exercise of

19 discretion, and we are therefore without jurisdiction to

20 consider it. See 8 U.S.C. § 1252(a)(2)(B), (C). 

21 For the foregoing reasons, the petition for review is

22 DENIED. As we have completed our review, any stay of
6

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