14

- 3175 BIA Irfan v. Lynch Vomacka

, IJ A076 551 093

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 the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 20 th da y of May , two thousand sixteen

.

PRESENT: J OSÉ A. C ABRANES
, C HESTER J. S TRAUB
, R

AYMOND J. L OHIER
, J R ., Circuit Judges.

_____________________________________

R

ANA M OHAMMAD I RFAN
,

Petitioner

,

v. 14

- 3175

L ORETTA E. L YNCH
, U NITED S TATES A TTORNEY G ENERAL
,
Respondent

.

_____________________________________

FOR PETITIONER : M EREDITH E. K ALMAN ( Disha Chandiramani and Kerry W. Bretz, on the brief ), Bretz & Coven, LLP, New York,
NY.

FOR RESPONDENT: L INDSAY M. M URPHY
, Trial Attorney (Benjamin C. Mizer, Principal Deputy Assistant Attorney General, and Cindy S. Ferrier, Assistant Director, on the brief ), U.S. Department of Justice, Civil Division, Washington, D.C.2 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 petitio n for review is DISMISSED

.

Petitioner Rana Mohammad Irfan , a native and citizen of Pakistan , seeks review of a July 29

, 201 4 decision of the BIA affirming the April 30 , 201 3 decision of an Immigration Judge (“IJ”) denying adjustment of status and waiver s of admissibility

. In re Rana Mohammad Irfan , No. A076 551 093 (B.I.A. July 29 , 201 4 ), aff’g No. A076 551 093 (Immig. Ct. New York City Apr

. 30 , 201 3 ). We assume the parties’ familiarity with the underlying facts and the case’s procedural history.

Irfan sought from the BIA a waiver of inadmissibility in order to pursue adjustment of status.

See 8 U.S.C. § 1255(a). The agency has discretion to waive the inadmissibility of an alien if removal of the applicant would result in extreme hardship to the applicant’s U .S. citizen spouse. 8 U.S.C. § 1182(h)(1)(B), (i). An agency finding that an applicant seeking a waiver failed to sh ow extreme hardship to a qualifying relative is a discretionary determination not subject to judicial review, Zhang v. Gonzales, 457 F.3d 172, 175

- 76 (2d Cir. 2006) ; similarly, we lack jurisdiction to review discretionary

denials in cases whe re extreme har dship is made out, Bugayong v. INS , 442 F.3d 67, 72

- 73 (2d Cir. 2006). We do, however, retain jurisdiction to review colorable constitutional claims and questions of law. See 8 U.S.C. § 1252(a)(2)(D); Barco

- Sandoval v. Gonzales, 516 F.3d 35, 39 (2d Cir. 2007 ).

Irfan first argues that the BIA com mitted legal error by failing to consider all of the evidence relevant to the hardship determination. This argument addresses itself not to any question of law, but to the BIA’s weighing of the evidence

— an operation we lack jurisdiction to review. It is true that

when facts critical to the inquiry into hardship are “totally overlooked” or “seriously mischaracterized” by the agency, “an error of law has occurred.” Mendez v. Holder , 566 F.3d 316, 323 (2d Cir. 2009). But nothing of the sort happened in this case. The BIA discussed the factors underlying its conclusion

that Irfan’s removal would not result in severe hard ship to his spouse (e.g. , her reasonably good health,

the unlikelihood tha t any financial difficulties would be extreme, and her son’s appro aching eighteenth birthday) and cite d those portions of the record and the IJ’s decision that inform ed its assessment of the facts (e.g., Irfan’s wife’s work experience and the pau city of ev idence showing that Irfan could not sell the family home except at a loss ). See A.R. at 4, 86

. It is of no moment that the agency conceivably could have discussed more evidence : “the agency does not commit an ‘error of law’ every time an item of evidence is not explicitly considered.” Mendez , 566 F.3d at 323. Accordingly, we conclude that we lack power to entertain Irfan’s argument.

The same is true of Irf an’s contention that the agency failed properly to take account of the positive equities in denying him a waiver. The BIA acknowledged the factors that favored Irfan’s

cause, see A.R. at 4, then determined, in its discretion, that they were outweighed by circumstances

favori ng removal

— for instance, Irfan’s 2008 bribery conviction , his attempts before the I.J. to minimize the crime’s severity, and the pattern of fraud and misrepresentation that has marked his3 dealings with immigration officials during the last two decades, see id. at 5. We lack jurisdiction to revisit the BIA’s balancing. 1

Nor do Irfan’s remaining arguments

— predicated on the Due Process Clause and the rule of SEC v. Chenery Corp. , 318 U.S. 80 (1943)

— raise any reviewable questions. These contentions simply restate, under different labeling, Irfan’s argument that the BIA failed meaningfully to consider all the

evidence. “[A] petitioner cannot use the rhetoric of a constitutional c laim or question of law to disguise what is essentially a quarrel about factfinding or the exercise of discretion.” Barco

- Sandoval

, 516 F.3d at 39 (alterations and internal quotation marks omitted).

We have reviewed all of Irfan’s arguments on appeal and find them to be without merit. For the foregoing reasons, the petition for review is DISMISSED for lack of jurisdiction

.

FOR THE COURT:

Catherine O ’ Hagan Wolfe, Clerk

1 Irfan devotes a section of his brief to the argument that the BIA erred in determining that the IJ’s adverse credibility determination was not clearly erroneous. This is a garden

- variety “quarrel about factfinding,” and, accordingly, it is be yond our power of review. Barco

- Sand oval , 516 F.3d at 39 (internal quotation marks omitted).