12-347
    Dhanaram v. Holder
                                                                                       BIA
                                                                                Montante, IJ
                                                                               A044 749 734


                         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 29th day of May, two thousand thirteen.


    PRESENT:
                   RALPH K. WINTER,
                   PETER W. HALL,
                   GERARD E. LYNCH,
                          Circuit Judges.
    ____________________________________

    PRAKASH DHANARAM,
                   Petitioner,
                   v.                                   12-347
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
                   Respondent.
    _____________________________________
FOR PETITIONER:                     Samuel N. Iroegbu, Albany, NY.


FOR RESPONDENT:                     Stuart F. Delery, Acting Assistant Attorney
                                    General; Jennifer L. Lightbody, Senior Litigation
                                    Counsel; Stefanie A. Svoren-Jay, 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.

       Prakash Dhanaram, a native and citizen of Guyana, seeks review of a December

30, 2011, order of the BIA affirming the May 13, 2010, decision of Immigration Judge

(“IJ”) Philip J. Montante, Jr. and denying his applications for two separate waivers of

inadmissibility. In re Prakash Dhanaram, No. A044 749 734 (B.I.A. Dec. 30, 2011),

affm’g No. A044 749 734 (Immig. Ct. Buffalo, May 13, 2010). We assume the parties’

familiarity with the underlying facts and procedural history in this case.

       In light of the prior proceedings in this case, we review the decision of the IJ as

supplemented by the BIA. See Yan Chen v. Gonzales, 

, 271 (2d Cir. 2005).

Because Dhanaram challenges the denial of relief that is discretionary, we have

jurisdiction only to review arguments asserting constitutional claims or errors of law. See

8 U.S.C. § 1252(a)(2)(B), (D); Ling Yang v. Mukasey, 

, 280 (2d Cir. 2008)

(per curiam); Avendano-Espejo v. Dep’t of Homeland Sec., 

, 505 (2d Cir.

2006). Dhanaram does not advance such claims here.

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       Dhanaram challenges the agency’s determination that he failed to establish his

entitlement to waivers of inadmissibility under Immigration and Nationality Act (“INA”)

§ 212(h) (codified at 8 U.S.C. § 1182(h)) and former INA § 212(c) (codified at 8 U.S.C. §

1182(c)(1995)). We lack jurisdiction to consider those challenges to the agency’s

decision, however, because they essentially dispute only the correctness of the IJ’s fact-

finding and the wisdom of the IJ’s exercise of discretion regarding the agency’s hardship

determination. See Xiao Ji Chen v. U.S. Dep’t of Justice, 

, 329 (2d Cir.

2006). Although Dhanaram asserts that the agency committed numerous legal errors in

determining that he failed to show he merited a favorable exercise of discretion, we reject

attempts to frame disagreements over the agency’s exercise of discretion as questions of

law. See, e.g., Barco-Sandoval v. Gonzales, 

, 39-40 (2d Cir. 2008).

       Dhanaram argues primarily that the agency erred as a matter of law because it

applied the wrong legal standard when it cited Matter of Edwards, 20 I. & N. Dec. 191

(BIA 1990), for the proposition that he needed to demonstrate “unusual or outstanding”

equities weighing in his favor because he had been involved in a pattern of criminal

behavior. Dhanaram misreads the case law, and his argument is without merit.

       In Matter of Edwards, the BIA cites Matter of Marin, 16 I. & N. Dec. 581 (BIA

1978) for the proposition that “as the negative factors grow more serious, it becomes

incumbent upon the alien to introduce additional offsetting favorable evidence, which in

some cases may have to involve unusual or outstanding equities.” Edwards, 20 I. & N.


                                             3
Dec. at 195. To determine when outstanding equities are necessary, Edwards clarifies

that the agency “must examine the gravity of the offense per se” and notes that a single

serious crime or “a succession of criminal acts which together establish a pattern of

serious criminal misconduct” may suffice to require that such a showing be made. 

also establishes, however, that even outstanding equities may be

insufficient to outweigh adverse factors. 

       In Dhanaram’s case, the agency provided reasons for finding that he had engaged

in a pattern of criminal behavior that warranted requiring Dhanaram to demonstrate

unusual or outstanding equities weighing in his favor. The IJ noted that Dhanaram’s first

conviction was within a year of admission to the United States and his most recent

conviction occurred during his removal proceedings. The agency also found that

Dhanaram admitted to continued use of marijuana despite completing drug treatment.

The agency’s determination that Dhanaram demonstrated a pattern of criminal activity

was supported by the record, and the requirement that Dhanaram demonstrate unusual or

outstanding equities to outweigh those adverse factors was not in error. See Avendano-

(citing Matter of Edwards, 20 I. & N. Dec. at 191, 194-95).

Dhanaram’s argument does not implicate a question of law and his assertion that the

agency used the wrong standard in evaluating the equities of his case is simply a

challenge to the agency’s exercise of discretion, which we lack jurisdiction to review.

See 

; see also Xiao Ji 

.



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       Dhanaram also argues that the agency “completely disregarded” the positive

equities weighing in his favor. This argument is belied by the record which shows that

both the BIA and the IJ explicitly noted Dhanaram’s positive equities, including his U.S.

citizen family members, his position as the family’s sole financial provider, his family’s

health problems and the likely emotional hardship that will result from his removal, his

employment history, and his improved relationship with his family. The IJ specifically

noted that these equities evoked sympathy, but both the IJ and the BIA agreed that they

did not outweigh the seriousness of the adverse factors justifying removal, which

included Dhanaram’s history of violent assaults, continued drug use, lack of

rehabilitation, and lack of remorse. In sum, the agency neither “totally overlooked”

significant positive factors weighing in Dhanaram’s favor nor mischaracterized the

evidence in the record. Mendez v. Holder, 

, 323 (2d Cir. 2009) (per curiam).

Accordingly, we conclude that Dhanaram does not identify a colorable question of law or

constitutional claim, and this Court lacks jurisdiction over his petition. See 8 U.S.C.

§ 1252(a)(2)(B).

       For the foregoing reasons, the petition for review is DISMISSED.

                                          FOR THE COURT:
                                          Catherine O’Hagan Wolfe, Clerk




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