12-4376 (L)

Patel v. Holder

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 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 21st day of October, two thousand thirteen.

PRESENT: GERARD E. LYNCH, 

DENNY CHIN,

CHRISTOPHER F. DRONEY,

Circuit Judges.

_________________________________________

RAKESHKUMAR V. PATEL,

Petitioner,

v. Nos. 12-4376 (L)

13-507 (Con)

ERIC H. HOLDER, JR., UNITED STATES 

ATTORNEY GENERAL,

Respondent.

_________________________________________

FOR PETITIONER: JOSEPH C. HOHENSTEIN, Orlow, Kaplan & Hohenstein, LLP,

Philadelphia, Pennsylvania.

FOR RESPONDENT: STUART F. DELERY, Acting Assistant Attorney General,

ANTHONY C. PAYNE, Senior Litigation Counsel, ALI

MOHAMMAD MANUCHEHRY, Trial Attorney, United States

Department of Justice, Washington, D.C.
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the petitions for review are DENIED. 

Rakeshkumar V. Patel, a native and citizen of India, seeks review of a September

20, 2012, decision of the Board of Immigration Appeals (“BIA”), affirming the January

25, 2010, decision of Immigration Judge (“IJ”) Philip J. Montante, Jr. denying his

application for adjustment of status, and a January 28, 2013, order of the BIA denying

reopening and reconsideration. In re Rakeshkumar V. Patel, No. A078 389 002 (B.I.A.

Sept. 20, 2012), aff’g No. A078 389 002 (Immig. Ct. Buffalo Jan. 25, 2010); In re

Rakeshkumar V. Patel, No. A078 389 002 (B.I.A. Jan. 28, 2013). We assume the parties’

familiarity with the underlying facts and procedural history in this case, which we

reference only as necessary to explain our decision. 

As an initial matter, the Government challenges the timeliness of the petition for

review of the first BIA decision, because the petition was electronically filed after the end

of the 30-day filing period. See 8 U.S.C. § 1252(b)(1). However, Patel timely filed in

hard copy and his failure to comply with our local rule regarding electronic filing does

not affect our jurisdiction. See Fed. R. App. P. 47(a)(2); Contino v. United States, 535

F.3d 124, 126-27 (2d Cir. 2008). 

Our jurisdiction to review discretionary decisions of the BIA such as denials of

adjustment of status is limited to constitutional claims and questions of law, 8 U.S.C.

§ 1252(a)(2)(B)(ii). Patel argues that, in denying his applications, the agency

mischaracterized relevant facts and applied an erroneous legal standard. While such

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claims can raise questions of law, Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315,

329 (2d Cir. 2006), here neither contention has merit.

Patel’s claim of deficiencies in the agency’s treatment of the facts is unavailing. 

While he correctly observes that the IJ erroneously characterized his criminal history

when denying his status adjustment, the BIA corrected the record in its de novo review

affirming the IJ’s decision. Nor did the agency overlook evidence presented by Patel. 

The record demonstrates that the BIA considered the positive equities he presented with

sufficient care and granularity such that its review does not approach an error of law. See

Mendez v. Holder, 566 F.3d 316, 323 (2d Cir. 2009) (holding that the agency need not

review every piece of evidence explicitly or perfectly); Xiao Ji Chen, 471 F.3d at 336 n.

17 (noting that the agency need not recite all relevant evidence to demonstrate adequate

consideration). As the record does not suggest that the agency failed to consider evidence

presented by Patel, we find no reviewable error of law on this basis.

In essence, Patel’s argument rests on the claim that the agency failed to properly

balance his positive equities against his criminal history and other adverse evidence. 

Patel stresses his hard work and success as an entrepreneur and the esteem with which he

is held in his community. The agency considered these positive factors, but found them

outweighed by the negative features of the record. We lack jurisdiction to consider

Patel’s arguments, which simply challenge the agency’s discretionary balancing of the

equities. 

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With respect to Patel’s motion for reconsideration and reopening, a motion to

reconsider must identify errors of law or fact in a previous order of the BIA, 8 U.S.C.

§ 1229a(c)(6). We find no error of law or fact here. Patel’s motion essentially argued

that the initial decision of the BIA was wrong, for the same reasons we have rejected

above. A motion to reopen may be granted only if a party presents new material evidence

unavailable at the time of the original hearing, 8 C.F.R. § 1003.2(c)(1), and the BIA

retains discretion to deny such a motion “even if the party moving has made out a prima

facie case for relief,” 8 C.F.R. § 1003.2(a). Patel presented no new evidence that would

justify a rehearing, and we lack jurisdiction to review the BIA’s exercise of its discretion

to deny reopening. 

Accordingly, Patel has identified no error of law in the agency’s decisions. The

petitions for review are therefore DENIED. As we have completed our review, the

pending motion for a stay of removal in these petitions is DENIED as moot.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk of Court

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