Filed: May 20, 2011
Latest Update: Feb. 22, 2020
Summary: 10-345-ag Nathaniel v. Holder BIA Weisel, IJ A035 400 809 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 T
Summary: 10-345-ag Nathaniel v. Holder BIA Weisel, IJ A035 400 809 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 TH..
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10-345-ag
Nathaniel v. Holder
BIA
Weisel, IJ
A035 400 809
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
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 20th day of May, two thousand eleven.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 BARRINGTON D. PARKER,
9 RICHARD C. WESLEY,
10 Circuit Judges.
11 _______________________________________
12
13 MAXIMIN PATRICK NATHANIAL, A.K.A.
14 “MAXIM PATRICK”
15 Petitioner,
16
17 v. 10-345-ag
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL
21 Respondent.
22 ______________________________________
23
24 FOR PETITIONER: H. Raymond Fasano, Madeo & Fasano,
25 New York, New York.
26
27 FOR RESPONDENT: Tony West, Assistant Attorney
28 General; Anthony W. Norwood, Senior
1 Litigation Counsel; Hillel R. Smith,
2 Trial Attorney, Office of
3 Immigration Litigation, Civil
4 Division, United States Department
5 of Justice, Washington, D.C.
6
7 UPON DUE CONSIDERATION of this petition for review of a
8 Board of Immigration Appeals (“BIA”) decision, it is hereby
9 ORDERED, ADJUDGED, AND DECREED that the petition for review
10 is DENIED.
11 Petitioner Maximin Patrick Nathaniel, a native and
12 citizen of Trinidad, seeks review of a December 31, 2009,
13 decision of the BIA reversing the February 12, 2007,
14 decision of Immigration Judge (“IJ”) Robert D. Weisel
15 granting Nathaniel a waiver of inadmissibility under section
16 212(h) of the Immigration and Nationality Act (“INA”). In
17 re Maximin Patrick Nathaniel, No. A035 400 809 (B.I.A. Dec.
18 31, 2009), rev’g No. A035 400 809 (Immig. Ct. N.Y. City Feb.
19 12, 2007). We assume the parties’ familiarity with the
20 underlying facts and procedural history in this case.
21 Under the circumstances of this case, we review only
22 the decision of the BIA. See Yan Chen v. Gonzales, 417 F.3d
23 268, 271 (2d Cir. 2005). The applicable standards of review
24 are well-established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin
25 Weng v. Holder,
562 F.3d 510, 513 (2d Cir. 2009).
2
1 Because Nathaniel is challenging the denial of
2 discretionary relief and because his final order of removal
3 was based on a criminal conviction covered by Immigration
4 and Nationality Act § 212(a)(2)(A)(i)(II) (relating to a
5 violation of a law relating to a controlled substance), our
6 jurisdiction is limited to review of constitutional claims
7 and questions of law raised in petitions for review. See
8 8 U.S.C. § 1252(a)(2)(B)-(D). Because Nathaniel argues that
9 the BIA violated its own regulations by engaging in
10 impermissible fact-finding, we have jurisdiction to review
11 his claim. See Padmore v. Holder, 609 F.3d 62, 66-69 (2d
12 Cir. 2010) (holding that whether the BIA impermissibly made
13 factual findings is a reviewable question of law).
14 However, Nathaniel’s argument that the BIA violated
15 8 C.F.R. § 1003.1(d)(3)(iv) by engaging in fact-finding is
16 unavailing. Section 1003.1(d)(3)(iv) provides, in relevant
17 part, that “[e]xcept for taking administrative notice of
18 commonly known facts such as current events or the contents
19 of official documents, the [BIA] will not engage in
20 factfinding in the courts of deciding appeals . . . . If
21 further factfinding is needed in a particular case, the
22 [BIA] may remand the proceeding to the IJ . . . .” The
3
1 regulation was intended to restrict the introduction of new
2 evidence before the BIA, “not the reevaluation of evidence
3 obtained by the IJ previously.” Belortaja v. Gonzales, 484
4 F.3d 619, 625 (2d Cir. 2007); see also
Padmore, 609 F.3d at
5 68 (finding that the BIA exceeded its authority when “the
6 BIA decided to reverse the IJ . . . based on disputed
7 material facts with respect to which the IJ reached no
8 resolution.”).
9 Here, the BIA did not find any new facts, but rather
10 observed that the IJ had not treated one of Nathaniel’s
11 alleged children as a qualifying relative because
12 Nathaniel’s name was not listed on her birth certificate,
13 and noted that the IJ had found that Nathaniel’s older son
14 had testified that he often travels to Trinidad and that the
15 record did not suggest that Nathaniel’s daughter could not
16 do the same. Accordingly, because the BIA did not make new
17 factual determinations of disputed factual questions or rely
18 on facts outside of the record, the BIA did not engage in
19 factfinding in violation of 8 C.F.R. § 1003.1(d)(3)(iv).
20 See
Padmore, 609 F.3d at 69. Thus, Nathaniel’s claim that
21 the BIA erred as a matter of law fails, and we are without
22 jurisdiction to further review the BIA’s determination that
4
1 he did not establish “extreme hardship.” See Bugayong v.
2 INS, 442 F.3d 67, 73 (2d Cir. 2006) (“[A] finding of either
3 ‘extreme hardship’ or ‘exceptional and unusual hardship’ is
4 itself a discretionary determination that we have no
5 jurisdiction to review.”).
6 For the foregoing reasons, the petition for review is
7 DENIED. As we have completed our review, any stay of
8 removal that the Court previously granted in this petition
9 is VACATED, and any pending motion for a stay of removal in
10 this petition is DISMISSED as moot. Any pending request for
11 oral argument in this petition is DENIED in accordance with
12 Federal Rule of Appellate Procedure 34(a)(2), and Second
13 Circuit Local Rule 34.1(b).
14 FOR THE COURT:
15 Catherine O’Hagan Wolfe, Clerk
16
17
5
