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 ON 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 20th day of May, two thousand sixteen.

PRESENT: JOSÉ A. CABRANES,

CHESTER J. STRAUB,

RAYMOND J. LOHIER, JR.,

Circuit Judges.

_____________________________________

RANA MOHAMMAD IRFAN,

Petitioner,

v. 14-3175

LORETTA E. LYNCH, UNITED STATES 

ATTORNEY GENERAL,

Respondent.

_____________________________________

FOR PETITIONER: MEREDITH E. KALMAN (Disha Chandiramani and Kerry 

W. Bretz, on the brief), Bretz & Coven, LLP, New York, 

NY.

FOR RESPONDENT: LINDSAY M. MURPHY, 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.
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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 Rana Mohammad Irfan, a native and citizen of Pakistan, seeks review of a July 29, 

2014 decision of the BIA affirming the April 30, 2013 decision of an Immigration Judge (“IJ”) denying 

adjustment of status and waivers of admissibility. In re Rana Mohammad Irfan, No. A076 551 093

(B.I.A. July 29, 2014), aff’g No. A076 551 093 (Immig. Ct. New York City Apr. 30, 2013). 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 show 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 where extreme hardship 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 committed 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 hardship to his spouse (e.g., her reasonably good health, 

the unlikelihood that any financial difficulties would be extreme, and her son’s approaching eighteenth 

birthday) and cited those portions of the record and the IJ’s decision that informed its assessment of 

the facts (e.g., Irfan’s wife’s work experience and the paucity of evidence 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 Irfan’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 

favoring 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 his 
3

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 claim 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 beyond our power of review. Barco-Sandoval, 516 F.3d at 39 

(internal quotation marks omitted).