17-122-ag Adebola v. Sessions BIA Montante, IJ A076 189 462 

## 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 PROC EDURE 32.1 AND THIS COURT = S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMEN T FILED WITH THIS CO URT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATA BASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPR ESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, held at the 

### 1 Thurgood Marshall United States Courthouse, 40 Fole y Square, in the City of New York, on the 

### 2 15 th day of February, two thousand eighteen. 

### 3 4 PRESENT: 

### 5 RALPH K. WINTER, 

### 6 DEBRA ANN LIVINGSTON, 

### 7 DENNY CHIN, 

### 8 Circuit Judges. 

### 9

_____________________________________ 

### 10 11 A BIDEEN A DEBOLA , A KA J AMES P ARKER , 

### 12 Petitioner , 

### 13 14 v. 17-122-ag 

### 15 16 J EFFERSON B. S ESSIONS III, 

### 17 U NITED S TATES A TTORNEY G ENERAL , 

### 18 Respondent

. 

### 19

_____________________________________ 

### 20 21 For Petitioner: Ronald D. Richey, Law Office of Ronald D. Richey, 

### 22 Rockville, Maryland. 

### 23 24 For Respondent: Rebekah Nahas, Jane Tracey Schaffner, for Briena L. 

### 25 Strippoli, Office of Immigration Litigation, Chad A. 

### 26 Readler, Civil Division; United States Department of 

### 27 Justice, Washington, District of Columbia. 

### 28 29 302 Petition for review of a December 16, 2016 Board of Immigration Appeals (“BIA”) 

### 1 decision dismissing Petitioner’s appeal of an October 26, 2015 decisi on of an Immigration Judge 

### 2 (“IJ”) ordering Petitioner’s removal and denying adjustment of status. 

### 3 UPON DUE CONSIDERATION of this petition for review of a BIA decision, it is hereby 

### 4 ORDERED, ADJUDGED, AND DECREED that the petition for review is DISMISSED

. 

### 5 Petitioner Abideen Adebola, a native and citi zen of Nigeria, seeks review of a December 

### 6 16, 2016 decision of the BIA dismissing Adebola’s appeal of an October 26, 2015 decision of an 

### 7 IJ ordering Adebola’s removal and denying adjustment of status. In re Abideen Adebola, No. A 

### 8 076 189 462 (B.I.A. Dec. 16, 2016), aff’g No. A 076 189 462 (Immig. Ct. Buffalo Oct. 26, 2015). 

### 9 We assume the parties’ familiarity with the underlying facts, the procedural history of the case, 

### 10 and the issues on appeal. 

### 11 Our jurisdiction to review Adebola’s removal or der is limited to “constitutional claims or 

### 12 questions of law.” 8 U.S.C. § 1252(a)(2)(B), (C), (D). To invoke our jurisdiction, such claims 

### 13 must be “colorable.” Barco-Sandoval v. Gonzales , 516 F.3d 35, 40 (2d Cir. 2008) (“[W]e lack 

### 14 jurisdiction to review any legal argument that is so insubstantial and frivolous as to be inadequate 

### 15 to invoke federal-question jurisdiction.”). To determine whether a petitioner raises constitutional 

### 16 challenges or questions of law over which we ha ve jurisdiction, we must “study the argument[] 

### 17 asserted . . . . [and] determine, regardless of the rhetoric employed in the petition, whether it 

### 18 merely quarrels over the correctness of the factua l findings or justificati on for the discretionary 

### 19 choices, in which case the cour t would lack jurisdiction.” Xiao Ji Chen v. U.S. Dep’t of Justice , 

### 20 471 F.3d 315, 329 (2d Cir. 2006). 

### 21 Adebola applied for adjustment of status and requested a waiver of inadmissibility for his 

### 22 convictions in connection with th at application. 8 U.S.C. §§ 1255(a), 1182(a)(2)(A )(i)(I), (h). 

### 233 Adjustment of status and a waiver of inadmissibility are both discretionary forms of relief that 

### 1 involve a two-part analysis. First, the agency assesses an applicant’s st atutory eligibility for 

### 2 adjustment and a waiver; second, the agency determines whether to exercise discretion in the 

### 3 applicant’s favor. See 8 U.S.C. § 1255(a); Singh v. Gonzales , 468 F.3d 135, 138 (2d Cir. 2006). 

### 4 Unlike eligibility, the exercise of discretion is not re viewable absent an error of law, such as when 

### 5 the agency overlooks facts or mischaracterizes evidence. See Mendez v. Holder , 566 F.3d 316, 

### 6 320 (2d Cir. 2009) (explaining that “we lack jurisdic tion at the second stage to review the Attorney 

### 7 General’s decision to grant or deny relief, made entirely in his discretion”); id. at 323. Because 

### 8 the BIA assumed statutory eligibility and affirmed only the IJ’s conclusi on that Adebola did not 

### 9 merit relief as a matter of discretion, we also assume statutory eligibility and the only decision 

### 10 before us is the wholly disc retionary denial of relief. See Xue Hong Yang v. U.S. Dep’t of Justice , 

### 11 426 F.3d 520, 522 (2d Cir. 2005); Yan Chen v. Gonzales , 417 F.3d 268, 271–72 (2d Cir. 2005). 

### 12 In making the ultimate discretionary determinati on, the agency “must balance the adverse factors 

### 13 evidencing an alien’s undesirabili ty as a permanent resident with the social and humane 

### 14 considerations presented on his beha lf to determine whether the grant of relief in the exercise of 

### 15 discretion appears to be in the be st interests of this country.” Matter of Mendez-Moralez , 21 I&N 

### 16 Dec. 296, 300 (B.I.A. 1996). 

### 17 Adebola does not raise a non-frivolous consti tutional claim or question of law regarding 

### 18 the agency’s determination that, even assuming st atutory eligibility, he did not merit adjustment 

### 19 to lawful permanent resident stat us or a waiver of inadmissibility as a matter of discretion. He 

### 20 argues that the IJ ignored eviden ce of his positive equitie s, particularly his family ties and the 

### 21 amount of time that had passed sinc e his convictions. But given th e limitation on our jurisdiction, 

### 22 the only relevant inquiry is whether the agency a pplied the correct legal st andard and considered 

### 234 the appropriate factors. See 8 U.S.C. §§ 1252(a)(2)(B)(i), (D); Xiao Ji Chen , 471 F.3d at 329 

### 1 (noting that a question of law may arise if the agen cy applies a “legally e rroneous standard”). It 

### 2 did. The IJ considered the “letters from frie nds, family members, and medical professionals” 

### 3 detailing Adebola’s rehabilitation as well as medical records and le tters from family and friends 

### 4 discussing his wife and children’s health, financial stability, and em otional wellbeing. C.A.R. 75. 

### 5 Although Adebola contends that the IJ did not discuss these document s individually or at sufficient 

### 6 length, the record does not “compellingly suggest[]” that the IJ mischaracterized the evidence or 

### 7 ignored any of those documents. Xiao Ji Chen , 471 F.3d at 336 n.17 (presuming that the IJ “has 

### 8 taken into account all of the evidence before [it], unless the record compellingly suggests 

### 9 otherwise”); see also Mendez , 566 F.3d at 323. The agency considered Adebola’s positive and 

### 10 negative factors and found th at his negative factors ( i.e. , the gravity of his criminal offenses and 

### 11 lack of rehabilitation) outw eighed his positive factors ( i.e. , the length of time that had passed since 

### 12 his convictions occurred, emotiona l hardship to his wife and ch ildren, and lengthy residence in 

### 13 and family ties to the United States). See Matter of Mendez-Moralez , 21 I&N Dec. at 301. 

### 14 Moreover, Adebola’s argument regarding the IJ’s hardship determination – that the IJ erred 

### 15 in finding that Adebola had not demonstrated that his family would face extreme hardship in the 

### 16 event of his removal – is misplaced: because the BIA assumed statutory eligibility, the dispositive 

### 17 issue is whether the IJ properly considered hard ship to Adebola’s family in the exercise of 

### 18 discretion. We discern no error. The IJ thorou ghly summarized the test imony of Adebola’s wife 

### 19 and children and identified hardships that each would suffer and weighed those factors in making 

### 20 a hardship determination. The fact that the IJ did not reiterate that analysis in making his 

### 21 discretionary determination is not evidence that the IJ ignored the hardships in rendering that 

### 22 ruling. See Xiao Ji Chen , 471 F.3d at 336 n.17. Similarly, Ad ebola’s argument regarding the 

### 235 IJ’s rehabilitation and national security findings is misdirected: because the BIA assumed statutory 

### 1 eligibility, the dispositive issue is whether th e IJ properly considered rehabilitation and the 

### 2 seriousness of Adebola’s criminal record as a matter of discretion. The record reflects that the IJ 

### 3 considered Adebola’s evidence of rehabilitation, including letters from friends, family members, 

### 4 and medical professionals, but found that he had committed a crime in 2006 after his 2000 

### 5 convictions and maintained cont act with his codefendant from the 2000 offenses. And the IJ 

### 6 found that the seriousness and frequency of Ade bola’s criminal offenses outweighed his positive 

### 7 equities. 

### 8 Although Adebola attempts to frame these arguments as questions of law based on 

### 9 overlooked evidence, in essence, he is quarreling over the factual findings and weighing of the 

### 10 hardships and his criminal history, whic h we lack jurisdiction to review. See Xiao Ji Chen , 471 

### 11 F.3d at 329; Guyadin v. Gonzales , 449 F.3d 465, 469 (2d Cir. 2006) (“ Because we lack jurisdiction 

### 12 to review any claim that an IJ or the BIA erred in weighing the factors relevant to the grant or 

### 13 denial of adjustment of status, pe titioners’ claims are dismissed for lack of jurisdiction insofar as 

### 14 they challenge the decision to deny . . . adjustment of status.”). 

### 15 We have considered all of Adebola’s remaining arguments and find them to be without 

### 16 merit. For the foregoing reasons, Adebola’s petition for review is DISMISSED

. 

### 17
18 FOR THE COURT: 

### 19 Catherine O’Hagan Wolfe, Clerk of Court 

### 20