19

- 2729 Garcia v. Wilkinson BIA Straus , IJ A 047 369 752 **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 O N ANY PARTY NOT REPRESENTED BY COUNSEL.** 
**At a stated term of the United States Court of Appeals for** 

### 1 **the Second Circuit, held at the Thurgood Marshall United States**  

### 2 **Courthouse, 40 Foley Square, in the City of New York, on the**  **4 th**  

### 3 **da y of**  **March , two thousand**  **twenty -**  **one .**  

### 4 5 **PRESENT:** 

### 6 **ROBERT A .**  **KATZMANN ,**  

### 7 **SUSAN L. CARNEY ,**  

### 8 **WILLIAM J. NARDINI**  **,** 

### 9 **Circuit Judges.** 

### 10

**_____________________________________** 

### 11 12 **PAUL ANDRE JUDE MARIANO GARCIA ,**  

### 13 **Petitioner ,**  

### 14 15

**v. 19** 
**- 2729**  

### 16 17 **ROBERT M**  **. WILKINSON ,**  **ACTING** 

### 18 **UNITED STATES ATTORNEY**  **GENERAL ,**  

### 19 **Respondent .**  **1** 

### 20

**_____________________________________** 

### 21 22 **FOR PETITIONER :**  Dalia H. Fuleihan , Esq., New Haven 

### 23 Legal Assistance Association, N ew 

### 24 Haven , CT

. 

### 25 26 **FOR RESPONDENT:** Keith I . McManus , Assistant Director; 

### 27 Rachel L. Browning , Trial Attorney, 

### 28

1 Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Acting Attorney General Robert M. Wilkinson is automatically substituted for former Acting Attorney General Jeffrey A. Rosen as Respondent.

### 2 Office of Immigration Litigation, 

### 1 United States Department of Justice, 

### 2 Washington, D C. 

### 3
UPON DUE CONSIDERATION of this petition for review of a Board 

### 4
of Immigration Appeals (“BIA”) decision, it is hereby ORDERED, 

### 5
ADJUDGED, AND DECREED that the petitio n for review is DENIED

. 

### 6

Petitioner Paul Andre Jude Mariano Garcia , a native and 

### 7

citizen of Trinidad and Tobago , seeks review of a n August 1, 2019 

### 8

decision of the BIA affirming a February 22, 2019 decision of an 

### 9
Immigration Judge (“IJ”) , ordering his removal and denying his 

### 10
application for cancellation of removal

. In re Paul Andre Jude 

### 11

Mariano Garcia , No. A 047 369 752 (B.I.A. Aug. 1, 2019 ), aff’g No. 

### 12

A 047 369 752 (Immig. Ct. Hartford Feb. 22, 201 9 ). We have reviewed 

### 13
both the IJ’s and the BIA’s opinions “for the sake of 

### 14
completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 

### 15

528 (2d Cir. 2006). We assume the parties’ familiarity with the 

### 16
underlying facts and procedural history in this case , to which we 

### 17
refer only as necessary to explain our decision

. 

### 18

At the outset , we reject Garcia’s argument that the agency 

### 19
lacked jurisdiction over his removal proceedings because his 

### 20

initial n otice to a ppear ( “NTA” ) did not include a hearing date or 

### 21

time

. In Banegas Gomez v. Barr , 922 F.3d 101 (2d Cir. 2019 ) , we 

### 22

held that “ an NTA that omits information regarding the time and 

### 23
date of the initial removal hearing is nevertheless adequate to 

### 24

### 3 vest jurisdiction in the Immigration Court, at least so long as a 

### 1
notice of hearing specifying this information is later sent to the 

### 2

alien , ” id. at 112. Garcia received a subsequent notice of hearing 

### 3
specifying the date and time and he appeared at the hearing as 

### 4

directed

. As a result, the agency properly had jurisdiction over 

### 5
the removal proceedings. 

### 6
Removability 

### 7

Garcia challenges the agency’s conclusion that he was 

### 8

removable for violating a protective order under 8 U.S.C. 

### 9

§ 1 227(a)(2)(E)(ii )

. That subsection provides , 

### 10

[a] ny alien who at any time after admission is enjoined under 

### 11 a protection order issued by a court and whom the court 

### 12 determines has engaged in conduct that violates the portion 

### 13 of a protection order that involves protection against 

### 14 credible thr eats of violence, repeated harassment, or bodily 

### 15 injury to the person or persons for whom the protection order 

### 16 was issued is deportable. 

### 17 18 8 U.S.C. § 1227(a)(2)(E)(ii). Garcia argues that the BIA erred in 

### 19
not applying the traditional categorical approach t o determin e 

### 20
whether his state offense matched the ground of removal in 

### 21

§ 1 227(a)(2)(E)(ii )

. See Mellouli v. Lynch , 135 S. Ct. 1980, 1986 

### 22
(2015) (“The categorical approach historically taken in 

### 23
determining whether a state conviction renders an alien removable 

### 24

. . . looks to the statutory definition of the offense of 

### 25

conviction

. . . . ”). Instead, following the BIA’s own precedent, 

### 26

the BIA c onsidered “probative and reliable evidence regarding what 

### 27

### 4 a State court has determined about the alien’s violation” in 

### 1
determining the applicability of § 1227(a)(2)(E)(ii). Matter of 

### 2

Obshatko , 27 I. & N. Dec. 173, 176

– 77 (BIA 2017) ; see also Matter 

### 3

of Med ina

- Jimenez , 27 I. & N. Dec. 399, 401 (BIA 2018). 

### 4

Th is Court has not determined whether § 1227(a)(2)(E)(ii) is 

### 5
subject to the categorical approach or to a circumstance

- specific 

### 6
analysis . The wording of the provision , however, supports the 

### 7

latter , because it requires that the agency or reviewing court 

### 8

assess the “conduct” of the individual rather than the type of 

### 9

conviction. See Nijhawan v. Holder , 557 U.S. 29 , 38

– 39 (2009 ) 

### 10
(holding that a statute requires “ a circumstance

- specific 

### 11
approach ” where it r efer s to “ conduct involved ‘ in ’ the commission 

### 12

of the offense of conviction, rather than to the elements of the 

### 13

offense ”) ; Diaz

- Quirazco v. Barr , 931 F.3d 830, 841 (9th Cir. 2019) 

### 14

(“[W]hether the alien has been ‘convicted’ is not the critical 

### 15
question of § 1227(a)(2)(E)(ii)

. ”)

. Cf. Mellouli , 13 5 S

. Ct

. at 

### 16

1986 ( noting that the categorial approach is appropriate where the 

### 17
“conviction, not conduct, [is] the trigger for immigration 

### 18

consequences”)

. 

### 19
In light of this, w e find no error in the agency’s 

### 20

determination that Garcia is removable. The transcript of Garcia’s 

### 21
plea hearing in state court makes clear that he repeated ly harass ed 

### 22

a protected person in violation of a protective orde r in effect 

### 23

### 5 against him

. A ccordingly , his violation triggers removability 

### 1

under § 1227(a)(2)(E)(ii)

. 

### 2

Cancellation of Removal 

### 3
Garcia challenges the agency’s denial o f the discretionary 

### 4

relief of cancellation of removal under 8 U.S.C. § 1229b . In 

### 5
reviewing a matter of discretionary relief, our jurisdiction is 

### 6
limited to constitutional claims and question s of law , 8 U.S.C. 

### 7

§ 1252(a)(2)(B)(i), (D) , which include “the application of a legal 

### 8
standard to undisputed or established facts , ” G uerrero
- Lasprilla 

### 9

v. Barr , 140 S. Ct. 1062, 1067 (2020)

. See also Barco

- Sandoval 

### 10

v. Gonzales , 516 F.3d 35, 39

- 40 (2d Cir. 2008). Where a petition 

### 11

“ merely quarrels over the correctness of the factual findings or 

### 12
justification for the discretionary choices , . . . the court

. . 

### 13

. lack [s] jurisdict ion” over the petition for review. Xiao Ji Chen 

### 14

v. U.S. Dep ’ t of Justice , 471 F.3d 315, 329 (2d Cir. 2006) . Garcia 

### 15
raises neither constitutional claims nor questions of law over 

### 16
which we have jurisdiction. 

### 17

Garcia ’s arguments all pertain to how the IJ balanced the 

### 18

evidence in reaching its decision

. These aspects of the IJ’s 

### 19

decision are beyond our review. S ee Argueta v. Holder , 617 F.3d 

### 20

109, 113 (2d Cir. 2010) ( noting that it is an “ unreviewable 

### 21
argument that the IJ balanced improperly those factors that the IJ 

### 22

could consider” )

. 

### 23

### 6 To begin , Garcia argues that t he IJ failed to consider 

### 1
evidence of his positive equities . Even if we could consider this 

### 2
argument, we note that it does not accurately describe the record. 

### 3

The IJ expressly “balance[d] the respondent’s equities against the 

### 4

adverse factors.” Cert. A d m in . R. at 1 3 7

. 

### 5

Garcia further charges that the IJ committed factual error by 

### 6
finding that the petitioner did not show rehabilitation and 

### 7

committed legal error by requiring that he demonstrate such 

### 8

rehabilitation

. Again, however , we cannot consider the 

### 9
petitioner’s former argument. The latter argument is belied by 

### 10

the record, which shows that the IJ did not impose such a 

### 11
requirement

. Rather, the IJ merely considered lack of 

### 12

rehabilitation as one of several factors relevant to its 

### 13
discretionary analysis. See In re C

- V

- T

- , 22 I. & N. Dec. 7, 11 

### 14

(B

. I

. A

. 1998) ( noting that an IJ has broad discretion in what 

### 15
adverse qualities to consider in determining cancellation of 

### 16

removal ). 

### 17
Finally, Garcia argues that the IJ did not properly credit 

### 18

evidence that he would face discrimination based on his sexual 

### 19

orientation if he is return ed to Trinidad and Tobago

. In support, 

### 20
he points to the IJ’s statement that, although it “did not find 

### 21
any evidence of harm to deportees , . . . [Garcia] may certainly 

### 22

face discrimination” upon his return

. Cert. A d m in . R. at 1 50

. 

### 23

### 7 This argument too asks that we reassess the weight that the IJ 

### 1
assigned to particular evidence, a review that we are not 

### 2

authorized to conduct

. See Barco

- Sandova l , 516 F.3d at 39

- 40 ; see 

### 3
also Argueta , 617 F.3d at 112

– 13; Carcamo v. U.S. Dep’t of Justice , 

### 4

498 F.3d 94, 98 (2d Cir. 2007). 

### 5

Due Process Claim 

### 6

W e reject Garcia’s final argument that he was denied a full 

### 7
and fair hearing at the agency in violation of due process

. To 

### 8

establish such a violation, “ an alien must show that s he was denied 

### 9
a full and fair opportunity to present her claims or that [ s he 

### 10
was] otherwise deprived . . . of fundamental fairness.” Burger 

### 11

v. Gonzales , 498 F.3d 131, 134 (2d Cir. 2007) (internal quotation 

### 12

marks and citation omitted)

. Garcia contends that the IJ’s 

### 13
demeanor and questioning style during his hearing revealed the 

### 14

IJ’s predisposition to rule against Garcia

. He also contends that 

### 15

the IJ did not meaningfully review the evidence

. 

### 16
Upon review, w e conclude that the record does not support 

### 17

these characterizations and that the IJ’s questioning and 

### 18

consideration of evidence did not violate due process. 

### 19
For the foregoing reasons, the petition for review is 

### 20

DENIED

. 

### 21

FOR THE COURT: 

### 22 Catherine O ’ Hagan Wolfe , 

### 23 Cl erk of Court 

### 24