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17-2678 

Espinal v. Sessions 

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 

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At a stated term of the United States Court of Appeals for the 

Second Circuit, held at the Thurgood Marshall United States 

Courthouse, 40 Foley Square, in the City of New York, on the 

29th day of August, two thousand eighteen. 

PRESENT: 

BARRINGTON D. PARKER,

PETER W. HALL, 

RAYMOND J. LOHIER, JR.,

Circuit Judges. 

_____________________________________ 

RAFAEL ERNESTO ESPINAL,

AKA RAFAEL E. BETANCOURT, 

 Petitioner, 

v. No. 17-2678-ag 

 

JEFFERSON B. SESSIONS III, 

UNITED STATES ATTORNEY GENERAL, 

 Respondent. 

_____________________________________ 

FOR PETITIONER: JM Mariotti, New York, N.Y. 

FOR RESPONDENT: Brendan P. Hogan, Trial Attorney, 

Office of Immigration Litigation, 

Civil Division, Chad A. Readler, 

Assistant Attorney General, Song 

Park, Senior Litigation Counsel, for

Jefferson B. Sessions III, United 

States Attorney General, Washington, 

D.C.
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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 DISMISSED. 

 Petitioner Rafael Ernesto Espinal, a native and citizen of 

the Dominican Republic, seeks review of a July 26, 2017 decision 

of the BIA dismissing Espinal’s appeal of an October 3, 2016, 

decision of an Immigration Judge (“IJ”) ordering his removal and 

denying his applications for relief from removal. In re Rafael 

Ernesto Espinal, No. A 073 136 517 (B.I.A. July 26, 2017), aff’g

No. A 073 136 517 (Immig. Ct. N.Y. City Oct. 3, 2016). We assume 

the parties’ familiarity with the underlying facts and procedural 

history in this case.

 Our jurisdiction to review Espinal’s removal order is limited 

to “constitutional claims or questions of law,” which we review de 

novo. 8 U.S.C. § 1252(a)(2)(D); see id. § 1252(a)(2)(B), (C); 

Pierre v. Holder, 588 F.3d 767, 772 (2d Cir. 2009). To invoke our 

jurisdiction, such claims must be “colorable.” Barco-Sandoval v. 

Gonzales, 516 F.3d 35, 40 (2d Cir. 2008) (“[W]e lack jurisdiction 

to review any legal argument that is so insubstantial and frivolous 

as to be inadequate to invoke federal-question jurisdiction.” 

(citation omitted)). Because the BIA’s decision “closely tracks” 

the IJ’s decision, we review both decisions together. See Richmond 

v. Holder, 714 F.3d 725, 728 (2d Cir. 2013) (quoting Lecaj v. 

Holder, 616 F.3d 111, 114 (2d Cir. 2010)). 
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 As an initial matter, Espinal argues that the agency erred in 

sustaining the fraud-or-willful-misrepresentation ground of 

removability because the record did not reflect that the former 

Immigration and Naturalization Service rescinded his lawful 

permanent resident (“LPR”) status and because the Government did 

not prove by clear and convincing evidence that he had 

intentionally misrepresented a material fact during the 

adjustment-of-status process. In essence, he argues that he did 

not need a waiver pursuant to 8 U.S.C. § 1227(a)(1)(H) because, 

absent proof of fraud, he never lost his LPR status and therefore 

did not need a waiver to retain it. Regardless of the disposition 

of that argument, Espinal conceded removability for aggravated 

felony and controlled substance offenses. Accordingly, he is 

independently removable on those grounds and requires a waiver 

under former § 1182(c). See 8 U.S.C. §§ 1255(a), 1182(c) (repealed 

1996). 

 Both requested waivers, under §§ 1182(a)(2)(c) (repealed 

1996) and 1227(a)(1)(H), are discretionary and involve a two-part 

analysis. First, the agency assesses an applicant’s statutory 

eligibility for the waiver; second, the agency determines whether 

to exercise discretion in the applicant’s favor. See Ahmed v. 

Holder, 624 F.3d 150, 153-54 (2d Cir. 2010) (per curiam); AvendanoEspejo v. Dep’t of Homeland Sec., 448 F.3d 503, 505 (2d Cir. 2006) 
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(per curiam). Unlike the question of eligibility, the exercise of 

discretion is not reviewable absent an error of law, such as when 

the agency overlooks facts or mischaracterizes evidence. See 

Mendez v. Holder, 566 F.3d 316, 323 (2d Cir. 2009); see also id.

at 320 (noting that “we lack jurisdiction at the second stage to 

review the Attorney General’s decision to grant or deny relief, 

made entirely in his discretion”). Because the agency found or 

assumed statutory eligibility but concluded that Espinal did not 

merit relief as a matter of discretion, we lack jurisdiction to 

consider further Espinal’s petition absent a constitutional claim 

or question of law regarding the agency’s exercise of discretion. 

 Espinal argues that the IJ ignored evidence of the equities 

that weigh positively in his favor, particularly his family ties 

and gainful employment. The agency commits a legal error if it 

overlooks facts or mischaracterizes evidence, id. at 323, but there 

is no such error here. The IJ considered the affidavits from 

Espinal’s family, employer, and friends; tax payments; financial 

and employment records; and children’s medical documents. Although 

Espinal contends that the IJ did not completely and fairly balance 

those equities against the negative factors, the IJ’s weighing and 

balancing of evidence are precisely the determinations we lack 

jurisdiction to review. See 8 U.S.C. § 1252(a)(2)(B)(i); Saloum v. 
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U.S. Citizenship & Immigration Servs., 437 F.3d 238, 244 (2d Cir. 

2006) (per curiam).

 Finally, Espinal’s argument that the IJ reached “speculative 

conclusions” about “uncorroborated allegations” of domestic 

violence and child abuse “found in medical records dating back to 

2009” is a mischaracterization of the record in this case. Espinal 

submitted the medical evaluation of his son, which identified a 

history of abuse by Espinal. Moreover, the BIA determined that, 

even absent this factor, Espinal’s “protracted criminal history” 

supported the IJ’s discretionary denial. 

 For the foregoing reasons, the petition for review is 

DISMISSED. 

FOR THE COURT: 

Catherine O’Hagan Wolfe, 

Clerk of Court