2 1

- 6096 Umana v. Garland BIA Farber , IJ A 073 669 919 

## 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 

### 1 Thu rgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 

### 2 28 th da y of February , two thousand twenty

- t hree

. 

### 3 4 PRESENT: 

### 5 DENNIS JACOBS
, 

### 6 EUNICE C. LEE
, 

### 7 MYRNA PÉREZ

, 

### 8 Circuit Judges. 

### 9

_____________________________________ 

### 10 11 LUIS ALBERTO UMANA
, 

### 12 13 Petitioner , 

### 14 15

v. 2 1

- 6 096 

### 16 17 MERRICK B. GARLAND , UNITED STATES 

### 18 ATTORNEY GENERAL
, 

### 19 20 Respondent

. 

### 21

_____________________________________ 

### 22 23 FOR PETITIONER : S ARAH H. S LOAN ( Robert M. Loe b, on the brief ), O rrick, 

### 24 Herrington & Sutcliffe, LLP
, Washington, DC

. 

### 25 26

FOR RESPONDENT: J ULIA J. T YLER , Senior Litigation Counsel , Office of 

### 27 Immigration Litigation ( Tim Ramnitz
, Senior Litigation 

### 28 Counsel, on the brief ) for Bria n M. Boynton, Assistant 

### 292 Attorney General , Civil Division, United States 

### 1 Department of Justice, Washington, DC. 

### 2 3 UPON DUE CONSIDERATION of this petition for review of a decision of the Board of 

### 4
Immigration Appeals (“BIA”), it is hereby ORDERED, ADJUDGED, AND DE CREED that the 

### 5
petitio n for review is DISMISSED

. 

### 6

Petitioner Luis Alberto Umana
, a native and citizen of El Salvador
, seek s review of a 

### 7

January 27, 2021 decision of the BIA
, affirming a December 3 , 201 9 decision of an Immigration 

### 8
Judge (“IJ”)
, which den ied his application s for two forms of cancellation of removal

. In re Luis 

### 9

Alberto Umana , No. A 073 669 919 (B.I.A. Jan. 27 , 2021 ), aff’g No. A 0 73 669 919 (Immig r . Ct. 

### 10

N.Y. C. Dec. 3 , 201 9 ). We assume the parties’ familiarity with the underlying facts and 

### 11
procedural history. 

### 12

We have reviewed the IJ’s decision as modified by the BIA , assume eligibility for relief as 

### 13

the BIA did, and consider only the denial of relief as a matter of discretion. See Yang v. U.S. 

### 14
Dep’t of Justice , 426 F.3d 520, 522 (2d Cir. 2005). 

### 15

Umana applied for s pecial rule cancellation of removal under the Nicaraguan Adjustment 

### 16

and Central American Relief A ct (“NACARA”), Pub. L. No. 105

- 100, 111 Stat. 2160, 2193 

### 17
(1997)
, and for cancellation of removal under the Immigration and Nationality Act, 8 U.S.C. 

### 18

§ 1229b(b) . Both forms of relief allow for cancellation of removal where applicants meet certain 

### 19

requirements for presence, moral character, and hardship. See 8 U.S.C. § 1229b(b); 8 C.F.R. § 

### 20
1240.66(b). But relief is a two

- step process : the applicant has the burden to establish eligibi lity, 

### 21

then, if eligible, the applicant must demonstrate that a grant of relief is merited as a matter of 

### 22

discretion. See 8 U.S.C. § 1229a(c)(4)(A); Argueta v. Holder , 617 F.3d 109, 111

– 12 (2d Cir. 

### 23
2010) (special rule cancellation); Rodriguez v. Gonzales
, 451 F.3d 60, 62 (2d Cir. 2006) 

### 243 (cancellation under § 1229b)

. Our jurisdiction to review the agency’s denial of these forms of 

### 1

discretionary relief is limited to constitutional claims and questions of law. See 8 U.S.C. 

### 2

§ § 1252(a)(2)(B), (D); Patel v. Garl and , 142 S. Ct. 1614, 1627 (2022); Argueta , 617 F.3d at 111

– 

### 3

12 (applying jurisdictional limitation in § 1252(a)(2)(B) to special rule cancellation). 

### 4
Umana claims that the BIA erred as a matter of law in affirming the discretionary denial of 

### 5

his cancellation of removal because it engaged in appellate factfinding and placed significant 

### 6

weight on contested and uncorroborated criminal complaints in violation of its own precedent. 

### 7

As relevant here, the BIA affirmed the IJ’s denial of cancellation of removal based on the IJ’s 

### 8
finding s that Umana’s arrest history evinced a pattern of violent conduct, that Umana paid only 

### 9

three years of taxes while living and working in the United States, and that Umana made numerous 

### 10

illegal re

- entries into the United St ates. 

### 11
Umana argues that the BIA engaged in appellate factfinding because the IJ referred to the 

### 12

conduct described in the criminal complaints as “alleged,” whereas the BIA treated the allegations 

### 13

as proven facts. While the BIA may not “engage in factfin ding in the course of deciding cases,” 

### 14
the BIA did not do so here. 8 C.F.R. § 1003.1(d)(3)(iv)(A). T rue, t he IJ used the word 

### 15

“allegedly” when discussing the conduct described in the criminal complaints, while the BIA did 

### 16

not. However, despite the IJ’s qualifying language regarding the conduct alleged in the criminal 

### 17
complaint
, the IJ expressed concern that Umana was not “fully candid
, ” Certified Admin. Record 

### 18

at 88, about his arrests and concluded that “[a]lthough [he] ha[d] not been convicted of violen t 

### 19

crimes, the court does believe that these two arrests show a pattern of anger and violence.” 

### 20

Certified Admin. Record at 91

. Similarly, the BIA concluded that Umana’s “criminal record . . . 

### 21

contains evidence of violent behavior.” Id . at 4

. A pattern of anger and violence cannot be made 

### 224 out by the fact of an arrest alone. It follows that the IJ could not have found such a pattern without 

### 1

implicitly finding that the conduct underlying the arrest had occurred. Therefore, the BIA did not 

### 2

find facts beyond what the IJ determined when it treated the arrest conduct as proven

. 

### 3

Umana next claims that the BIA departed from its own precedent by over rel ying on the 

### 4
uncorroborated and contested allegations in his arrest reports. Such reports are admi ssible for 

### 5
purposes of considering an application for discretionary relief, Carcamo v. U.S. Dep’t of Justice
, 

### 6

498 F.3d 94, 98 (2d Cir. 2007); In re Grijalva , 19 I. & N. Dec. 713, 722 (B.I.A. 1988), but the BIA 

### 7
has held that it is “hesitant to give substant ial weight to an arrest report, absent a conviction or 

### 8
corroborating evidence of the allegations contained therein
, ” In re Arreguin d e Rodriguez , 21 I. 

### 9

& N. Dec. 38, 42 (B

. I

. A

. 1995)

. While Arreguin de Rodriguez “spoke to the relative weight to be 

### 10

given t o uncorroborated arrest reports,” Marquez v. Garland , 13 F.4th 108, 115 (2d Cir. 2021), we 

### 11
lack jurisdiction to review any claim regarding evidentiary weight in discretionary denials of 

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cancellation. See 8 U.S.C. § 1252(a)(2)(B), (D); Patel , 142 S. Ct. at 1627 (2022); Argueta , 617 

### 13

F.3d at 111

– 12

. Because the BIA cited Umana’s failure to pay taxes and repeated illegal re



### 14
entries as bases for its discretionary denial, any assessment of whether the BIA gave the arrest 

### 15

records substantial weigh t in contravention of Arreguin de Rodriguez would require reviewing the 

### 16

weight of the evidence and thus exceed our jurisdiction. 1 See, e.g., Lazo v. Sessions , 705 Fed. 

### 17
App’x 46, 47 (2d Cir. 2017) (rejecting argument that the BIA failed to comply with Arr eguin de 

### 18

1 This admittedly appears to create a difficulty with reviewing the Agency’s compliance with Arreguin de Rodriguez in discretionary cancellation of removal cases. For example
, other circuits have concluded that exclusive reliance on uncorroborated allegatio ns clearly constitutes substantial weight as a matter of law
, see Rogel v. Garland , 2022 U.S. App. LEXIS 25866, at *10

– 13 (4th Cir. Sept. 15, 2022) , and this Court has implied the same, see, e.g., Lazo v. Sessions
, 705 F. App’x 46, 47 (2d Cir. 2017). “ Sub stantial weight, ” however, would necessarily seem to entail something less than exclusive reliance , and thus requires weighing the evidence, something we lack jurisdiction to do in discretionary cancellation of removal cases

. We do not resolve here the is sue of what constitutes “substantial weight” and whether it may, under appropriate circumstances, raise a question of law over which we have jurisdiction.5 Rodriguez where “[t]he IJ did not rely solely on uncorroborated allegations in weighing the 

### 1

equities ” because “[w]e lack jurisdiction to reassess the weight the agency gave this evidence”). 

### 2

3

For the foregoing reasons, the petition for review is DISMISSED

. 

### 4

FOR THE COURT: 

### 5 Catherine O ’ Hagan Wolfe
, 

### 6 Clerk of Court 

### 7 8