Li v. Garland

20-301 Li v. Garland BIA Horton, IJ A214 624 045 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. 1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 13th day of May, two thousand twenty-one. [5] 6 PRESENT: 7 JON O. NEWMAN, 8 MICHAEL H. PARK, 9 STEVEN J. MENASHI, 10 Circuit Judges. 11 _____________________________________ [12] 13 ZENGKUI LI, AKA ZENG KUI LI, 14 Petitioner, [15] 16 v. 20-301 [17] 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ [22] 23 FOR PETITIONER: Jean Wang, Wang Law Office, PLLC, 24 Flushing, NY. [25] 26 FOR RESPONDENT: Ethan P. Davis, Acting Assistant 27 Attorney General; Anthony C. Payne, 28 Assistant Director; Colette J. 29 Winston, Trial Attorney, Office of 1 Immigration Litigation, United 2 States Department of Justice, 3 Washington, DC. 4 UPON DUE CONSIDERATION of this petition for review of a 5 Board of Immigration Appeals (“BIA”) decision, it is hereby 6 ORDERED, ADJUDGED, AND DECREED that the petition for review 7 is DENIED in part and DISMISSED in remaining part. 8 Petitioner Zengkui Li, a native of the People’s Republic 9 of China and a citizen of Canada, seeks review of a January 10 21, 2020 decision of the BIA affirming an August 21, 2019 11 decision of an Immigration Judge (“IJ”) denying his 12 application for adjustment to lawful permanent resident 13 status. In re Zengkui Li, No. A 214 624 045 (B.I.A. Jan 21, 14 2020), aff’g No. A 214 624 045 (Immig. Ct. N.Y.C. Aug 21, 15 2019). We assume the parties’ familiarity with the 16 underlying facts and procedural history. 17 We have reviewed the IJ’s decision as supplemented by 18 the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d 19 Cir. 2005). The agency may adjust the status of certain 20 aliens with immediately available immigrant visas to that of 21 lawful permanent residents. See 8 U.S.C. § 1255 (a). 22 “[A]djustment of status [is] . . . a two-step process, 23 involving first, proof of an alien’s statutory eligibility [2] 1 for the adjustment, and second, an exercise of discretion by 2 the Attorney General as to whether to grant such relief.” 3 Singh v. Gonzales, 468 F.3d 135, 138 (2d Cir. 2006) (internal 4 quotation marks omitted). The agency concluded that Li was 5 eligible to adjust but that he did not merit adjustment as a 6 matter of discretion. In determining whether an alien should 7 be permitted to adjust to lawful status as a matter of 8 discretion, the agency weighs the alien’s positive attributes 9 against any negative factors. See Wallace v. Gonzales, 463 10 F.3d 135, 137-39 (2d Cir. 2006); Matter of Arai, 13 I&N Dec. 11 494, 496 (B.I.A. 1970). 12 Our jurisdiction to review the agency’s denial of 13 adjustment of status is limited to colorable constitutional 14 claims and questions of law. See 8 U.S.C. § 1252 (a)(2)(B), 15 (D); Guyadin v. Gonzales, 449 F.3d 465, 468-69 (2d Cir. 2006). 16 We review constitutional claims and questions of law de novo. 17 Pierre v. Holder, 588 F.3d 767, 772 (2d Cir. 2009). When 18 assessing jurisdiction, we “study the arguments 19 asserted . . . to determine, regardless of the rhetoric 20 employed in the petition, whether it merely quarrels over the 21 correctness of the factual findings or justification for the 22 discretionary choices, in which case the court would lack [3] 1 jurisdiction or whether it instead raises a ‘constitutional 2 claim’ or ‘question of law,’ in which case the court could 3 exercise jurisdiction to review those particular issues.” 4 Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d 5 Cir. 2006); see also Barco-Sandoval v. Gonzales, 516 F.3d 35 , 6 40-41 (2d Cir. 2008). 7 We deny the petition as to Li’s due process claims. Li 8 argues that the IJ violated due process by conducting the 9 hearing by videoteleconference (“VTC”). The use of VTC in 10 immigration proceedings is permissible as long as it 11 “accord[s] with the constitutional requirements of 12 the Due Process Clause.” Aslam v. Mukasey, 537 F.3d 110 , 115 13 (2d Cir. 2008). To establish a due process claim, the alien 14 must show that he was denied the opportunity to be heard “in 15 a meaningful manner,” Burger v. Gonzales, 498 F.3d 131 , 134 16 (2d Cir. 2007), and that the “alleged shortcomings have 17 prejudiced the outcome of his case,” Garcia-Villeda v. 18 Mukasey, 531 F.3d 141, 149 (2d Cir. 2008). 19 Li first contends that the IJ used VTC without obtaining 20 his consent, noting that he twice objected to the use of VTC. 21 His argument misses the mark. The statute distinguishes 22 between video and telephone conferencing and requires consent [4] 1 only for the use of the latter. See 8 U.S.C. § 1229a(b)(2)(B) 2 (“An evidentiary hearing on the merits may only be conducted 3 through a telephone conference with the consent of the alien 4 involved after the alien has been advised of the right to 5 proceed in person or through video conference.”). 6 Li next contends that the BIA applied the wrong legal 7 standard by analyzing whether the use of VTC was “facially 8 unfair” rather than whether he had an opportunity to be heard. 9 Li mischaracterizes the BIA’s language. While the BIA noted 10 that the use of VTC “does not render an immigration hearing 11 facially unfair,” it went on to state that due process in the 12 immigration context requires a full and fair hearing with a 13 meaningful opportunity to be heard. The BIA then dismissed 14 the due process claim because Li failed to explain how the 15 use of VTC denied him a full and fair hearing or prevented 16 the IJ from fairly considering his case. 17 Li further argues his due process rights were violated 18 because there were repeated technical problems with the VTC, 19 leading the IJ to reschedule his hearing three times. Li 20 claims that he suffered prejudice because the VTC failures 21 inhibited the IJ’s ability to analyze his nonverbal 22 communication and caused many disruptions in his testimony, [5] 1 which prevented the IJ from fairly assessing his credibility. 2 Li fails to establish prejudice because the IJ’s adverse 3 credibility determination was not based on nonverbal cues. 4 Rather, the IJ found Li not credible because his testimony 5 was “vague, evasive, and contradictory.” Li did not 6 demonstrate that an in-person hearing would have remedied 7 these defects in his testimony. 8 Li also argues that the agency violated his due process 9 rights by relying on an Interpol Red Notice stating that Li 10 is wanted for prosecution in China for illegally trafficking 11 38 people to England. He alleges that the notice contained 12 factual errors and was not relevant to his eligibility to 13 adjust status. Li has not identified an error of law in the 14 admission of the notice. The Federal Rules of Evidence do 15 not apply in removal proceedings and “[e]vidence is 16 admissible provided that it does not violate the alien’s right 17 to due process of law.” Zhen Nan Lin v. U.S. Dep’t of 18 Justice, 459 F.3d 255, 268 (2d Cir. 2006). Due process is 19 satisfied “if the evidence is probative and its use 20 is fundamentally fair, fairness in this context being closely 21 related to the reliability and trustworthiness of the 22 evidence.” Aslam, 537 F.3d at 114 (internal quotation marks [6] 1 omitted). 2 Li argues that the notice is unreliable because it is 3 not directly from the Chinese government. While an Interpol 4 notice is not a formal international arrest warrant, it is 5 reliable when offered “for what it purports to be—namely, a 6 request by a member country . . . to provisionally arrest a 7 specifically identified person . . . pending extradition 8 based on a valid national arrest warrant for a crime that is 9 not political in nature.” Matter of W-E-R-B-, 27 I&N Dec. 10 795, 798–99 (B.I.A. 2020). 11 Li also argues that the notice contained factual errors. 12 But the agency declined to exercise its discretion because it 13 found Li not to be credible based on his vague and evasive 14 responses to questions about the existence of the notice. 15 Thus, Li’s claim that the notice was not relevant to his 16 adjustment application also fails because his credibility is 17 relevant to whether adjustment is warranted as a matter of 18 discretion. See Matter of Marin, 16 I&N Dec. 581, 584 (B.I.A. 19 1978) (holding that, in exercising its discretion, the agency 20 can consider adverse factors such as “the nature and 21 underlying circumstances of the exclusion ground at issue, 22 the presence of additional significant violations of this [7] 1 country’s immigration laws, the existence of a criminal 2 record and, if so, its nature, recency, and seriousness, and 3 the presence of other evidence indicative of a respondent’s 4 bad character or undesirability as a permanent resident of 5 this country”). 6 Finally, Li failed to establish prejudice because the 7 agency did not rely solely on the notice but also noted Li’s 8 evasiveness on other issues including his travel in and out 9 of Canada and to Europe. See Garcia-Villeda, 531 F.3d at 10 149. 11 We dismiss the petition in remaining part to the extent 12 Li challenges the adverse credibility determination or the 13 agency’s weighing of his equities. He argues that he was not 14 evasive in response to questions, that the IJ gave undue 15 weight to his lack of knowledge about the Interpol notice, 16 and that he did not intend to be evasive when he gave vague 17 testimony. Further, Li argues that his purported evasiveness 18 was in response to questions regarding nonmaterial issues 19 that the IJ should not have considered when assessing his 20 credibility. We do not have jurisdiction to review these 21 arguments because Li “merely quarrels over the correctness of 22 the factual findings or justification for the discretionary [8] 1 choices.” Xiao Ji Chen, 471 F.3d at 329 ; see also Xiu Xia 2 Lin v. Mukasey, 534 F.3d 162 , 165–66 (2d Cir. 2008) (adverse 3 credibility determination are factual determinations); 4 Guyadin, 449 F.3d at 468-69 . 5 For the foregoing reasons, the petition for review is 6 DENIED in part and DISMISSED in remaining part. 7 FOR THE COURT: 8 Catherine O’Hagan Wolfe, 9 Clerk of Court