Badu v. Garland

22-6070 Badu v. Garland BIA Ruehle, IJ A074 971 262 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. 1 At a stated term of the United States Court of Appeals for 2 the Second Circuit, held at the Thurgood Marshall United States 3 Courthouse, 40 Foley Square, in the City of New York, on the 4 13th day of January, two thousand twenty-three. — 5 — 6 PRESENT: 7 GUIDO CALABRESI, 8 DENNY CHIN, 9 EUNICE C. LEE, 10 Circuit Judges. 11 _____________________________________ — 12 — 13 GABRIEL BADU, — 14 — 15 Petitioner, — 16 — 17 v. 22-6070 — 18 — 19 MERRICK B. GARLAND, UNITED STATES 20 ATTORNEY GENERAL, — 21 — 22 Respondent. 23 _____________________________________ — 24 — 25 FOR PETITIONER: Gary J. Yerman, The Yerman Group, LLC, 26 New York, NY. — 27 — 28 FOR RESPONDENT: Brian Boynton, Principal Deputy 29 Assistant Attorney General; John S. 30 Hogan, Assistant Director; Christina 31 R. Zeidan, Trial Attorney, Office of 1 Immigration Litigation, United States 2 Department of Justice, Washington, DC. — 3 — 4 UPON DUE CONSIDERATION of this petition for review of a 5 decision of the Board of Immigration Appeals (“BIA”), it is hereby 6 ORDERED, ADJUDGED, AND DECREED that the petition for review is 7 DISMISSED. 8 Petitioner Gabriel Badu, a native and citizen of Ghana, seeks 9 review of a January 19, 2022 decision of the BIA, affirming a March 10 19, 2019 decision of an Immigration Judge (“IJ”) denying his 11 applications for a waiver of removability and cancellation of 12 removal. In re Gabriel Badu, No. A074 971 262 (B.I.A. Jan. 19, 13 2022), aff’g No. A074 971 262 (Immigr. Ct. Buffalo Mar. 19, 2019). 14 We assume the parties’ familiarity with the underlying facts and 15 procedural history. 16 We have reviewed both the IJ’s and BIA’s decisions. See 17 Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir. 18 2006). Badu has abandoned any challenge to the agency’s denial 19 of cancellation of removal by not raising that claim in his brief, 20 and thus the only form of relief before us is the denial of his 21 request for a fraud waiver under 8 U.S.C. § 1227 (a)(1)(H). See 22 Ahmed v. Holder, 624 F.3d 150, 153 (2d Cir. 2010) (per curiam). 23 Our jurisdiction to review the agency’s denial of a discretionary 24 fraud waiver is limited to “colorable constitutional claims or 25 questions of law.” Ahmed, 624 F.3d at 154 (quoting Bugayong v. — 2 — 1 INS, 442 F.3d 67, 68 (2d Cir. 2006) (per curiam)); see also 8 2 U.S.C. § 1252 (a)(2)(B)(ii), (D). Badu raises no colorable claim 3 over which we have jurisdiction. 4 Under § 1227(a)(1)(H), the agency may waive a non-citizen’s 5 misrepresentations if he is the parent of a U.S. citizen and was 6 otherwise admissible. If the non-citizen is statutorily eligible 7 for a waiver, the agency must decide whether to exercise discretion 8 favorably. In re Tijam, 22 I. & N. Dec. 408, 412 (B.I.A. 1998). 9 In doing so, the agency balances the non-citizen’s “undesirability 10 as a permanent resident with the social and humane considerations 11 present to determine whether a grant of relief is in the best 12 interests of this country.” Id. Negative factors include the 13 nature of the fraud or bad character of the non-citizen; positive 14 factors include the non-citizen’s ties to the United States or 15 “evidence of hardship to the [non-citizen] or her family if 16 deportation occurs.” Id. 17 Badu argues that the agency mischaracterized his 18 misrepresentations in the immigration context as a pattern of 19 fraud, failed to account for his remorse, and improperly noted 20 misrepresentations made outside the immigration context. Although 21 the agency errs as a matter of law when it “totally overlook[s]” 22 or “seriously mischaracterize[s]” important facts relating to the 23 discretionary determination, Mendez v. Holder, 566 F.3d 316 , 323 — 3 — 1 (2d Cir. 2009) (per curiam), Badu’s arguments are “best 2 characterized . . . as a disagreement with the outcome of a lawful 3 exercise of discretion” over which we lack “jurisdiction,” Ahmed, — 4 — 624 F.3d at 154 . 5 Badu entered the United States in 1991 by presenting himself 6 as a citizen of Liberia whose family members had been killed. The 7 agency did not err in finding a pattern of misrepresentations 8 following this initial fraud because Badu continued to make 9 misrepresentations for years: He applied for asylum using his 10 false Liberian identity one month after his entry; he failed to 11 disclose his Liberian identity when applying for adjustment of 12 status as a Ghanaian in 1995; and he signed his fraudulent asylum 13 application at an asylum interview in 1998. See Tijam, 22 I. & 14 N. Dec. at 415–17; see also INS v. Yueh-Shaio Yang, 519 U.S. 26 , 15 32 (1996) (“It is assuredly rational, and therefore lawful, for 16 [the Attorney General] to distinguish aliens . . . who engage in 17 a pattern of immigration fraud from [non-citizens] who commit a 18 single, isolated act of misrepresentation.”). 19 Further, contrary to Badu’s arguments, the agency 20 acknowledged his expression of remorse, reasonably noted his use 21 of his false identity outside the immigration context, and 22 considered his lengthy ties and residence in the United States as 23 positive factors. See Tijam, 22 I. & N. Dec. at 412 . The BIA did — 4 — 1 not engage in improper factfinding because it agreed with the IJ 2 that Badu’s misrepresentations constituted a pattern of fraud and 3 noted, as the IJ had, that Badu continued to pursue his false 4 asylum application after he adjusted status using a different 5 identity. See 8 C.F.R. § 1003.1 (d)(3)(i) (“Facts determined by 6 the immigration judge, including findings as to the credibility of 7 testimony, shall be reviewed only to determine whether the findings 8 of the immigration judge are clearly erroneous.”). 9 Badu has not raised a colorable constitutional claim or 10 question of law regarding the agency’s denial of a fraud waiver, 11 and we lack jurisdiction to further review the agency’s factfinding 12 and balancing of factors. See 8 U.S.C. § 1252 (a)(2)(B), (D); 13 Ahmed, 624 F.3d at 153–54; Argueta v. Holder, 617 F.3d 109 , 113 14 (2d Cir. 2010) (per curiam) (holding “argument that the IJ balanced 15 improperly those factors that the IJ could consider” was 16 unreviewable). 17 For the foregoing reasons, the petition for review is 18 DISMISSED. All pending motions and applications are DENIED and 19 stays VACATED. 20 FOR THE COURT: 21 Catherine O’Hagan Wolfe, 22 Clerk of Court — 5 —