15-1440-ag
Flores-Landaverry v. Lynch
BIA
Verrillo, IJ
A089 014 339
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.
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 4th day of March, two thousand sixteen.
PRESENT: JOHN M. WALKER, JR.,
REENA RAGGI,
PETER W. HALL,
Circuit Judges.
_____________________________________
LUIS ALBERTO FLORES-LANDAVERRY,
AKA Luis Flores,
Petitioner,
v. 15-1440-ag
LORETTA E. LYNCH, United States Attorney
General,
Respondent.
_____________________________________
FOR PETITIONER: Daniel D. Estrin, Vladislav Sirota, Sirota &
Associates, P.C., Brooklyn, New York.
FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy Assistant
Attorney General; Emily Anne Radford, Assistant
Director; Craig A. Newell, Jr., Trial Attorney,
Office of Immigration Litigation, United States
Department of Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a Board of
Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND
DECREED that the petition for review is DISMISSED.
Petitioner Luis Alberto Flores-Landaverry, a native and citizen of Peru, seeks
review of a March 31, 2015 decision of the BIA affirming without opinion a September
10, 2013 decision of an Immigration Judge (“IJ”) denying Flores-Landaverry’s
applications for adjustment of status and a waiver of inadmissibility based on state
criminal convictions under 8 U.S.C. §§ 1182(h), 1255. See In re Luis Alberto Flores-
Landaverry, No. A089 014 339 (B.I.A. Mar. 31, 2015), aff’g No. A089 014 339 (Immig.
Ct. Hartford, CT Sept. 10, 2013). On appeal, Flores-Landaverry argues that the IJ erred
in (1) adjudicating waiver without first determining whether Flores-Landaverry was
statutorily ineligible for adjustment of status, (2) conflating the discretionary standards
applicable for adjustment of status and waiver of inadmissibility, (3) ignoring record
evidence in concluding that Flores-Landaverry would be able to support his family if
removed to Peru, and (4) concluding that he failed to demonstrate rehabilitation.
In the circumstances of this case, we review the IJ’s decision as the final agency
determination. See 8 C.F.R. § 1003.1(e)(4); Shunfu Li v. Mukasey, 529 F.3d 141, 146 (2d Cir. 2008). Because both an adjustment of status and a waiver of inadmissibility are discretionary forms of relief, see 8 U.S.C. § 1252(a)(2)(B)(i), our jurisdiction to review the denial of such relief is limited to constitutional claims or questions of law, seeid. § 1252(a)(2)(D).
We assume the parties’ familiarity with the underlying facts and
2
procedural history in this case, which we reference only as necessary to explain our
decision to dismiss the petition.
At the outset, the government argues—and Flores-Landaverry does not dispute—
that he failed administratively to exhaust three of the arguments he raises in his petition
to this court. Before the BIA, Flores-Landaverry argued only that the IJ failed adequately
to weigh the evidence of his post-conviction rehabilitation in deciding whether to grant
him a waiver of inadmissibility. He did not argue that the IJ failed first to consider his
statutory eligibility for adjustment of status, conflated the hardship standards for
adjustment and waiver, and erred in finding no evidence that he would be unable to
support his family in Peru. Accordingly, we decline to consider those arguments here.
See Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 123 (2d Cir. 2006) (“To preserve a claim, we require [p]etitioner to raise issues to the BIA in order to preserve them for judicial review.” (quoting Foster v. INS,376 F.3d 75
, 78 (2d Cir. 2004))).
As for his preserved argument, Flores-Landaverry cites Matter of Mendez-
Moralez, 21 I. & N. Dec. 296 (BIA 1996), to argue that the IJ erred in concluding that
petitioner failed to establish rehabilitation given his insistence that he is innocent of the
assault to which he pleaded guilty in 2008. See id. at 304 (explaining that evidence of
rehabilitation is a favorable consideration in waiver determination but that petitioner
claiming innocence may show rehabilitation by other means). We lack jurisdiction to
consider this argument because it is, at bottom, a challenge to the IJ’s determination that
Flores-Landaverry did not show sufficient evidence of rehabilitation after his nine
3
criminal convictions to warrant a favorable exercise of discretion. See Certified
Administrative Record (“CAR”) 56 (explaining that, while living in United States,
Flores-Landaverry “has shown a complete disregard for the law in this country”); see also
Saloum v. U.S. Citizenship & Immig. Servs., 437 F.3d 238, 243 (2d Cir. 2006)
(explaining that petitioner’s mere assertion that agency failed to apply correct law was
insufficient to establish question of law, and concluding that court lacked jurisdiction to
review petitioner’s argument that essentially challenged IJ’s exercise of discretion in
denying waiver of inadmissibility).
Accordingly, the petition for review is DISMISSED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
4