12-1396
    Nunez v. Holder
                                                                                                BIA
                                                                                          Abrams, IJ
                                                                                        A098 070 173
                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                    SUMMARY ORDER
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         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 7th
    day of June, two thousand thirteen.

    PRESENT:
              PETER W. HALL,
              GERARD E. LYNCH,
                   Circuit Judges,
              PAUL A. ENGELMAYER,*
                   District Judge.
    _______________________________________

    YEFRIS NUNEZ, AKA JEFFREY NUNEZ, AKA
    YEFRIS DE CARMEN CATILLO, AKA YEFRIS
    CARMEN DE JESUS, AKA JEFFREY RODRIGUEZ,
    AKA YEFRIS RODRIGUEZ, AKA JEFFREY DE
    JESUS CATILLO, AKA YEFRIS DE JESUS
    CATILLO,
              Petitioner,

                      v.                                      12-1396

    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
              Respondent.

    _______________________________________

                 *
                The Honorable Paul A. Engelmayer, of the United States District Court for the
        Southern District of New York, sitting by designation.
FOR PETITIONER:            H. Raymond Fasano, Youman, Madeo &
                           Fasano, LLP, New York, N.Y.

FOR RESPONDENT:            Stuart F. Delery, Acting Assistant
                           Attorney General; David V. Bernal,
                           Assistant Director; Jesse M. Bless and
                           Claire Workman, Trial Attorneys, 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

DENIED.

     Yefris Nunez, a native and citizen of the Dominican

Republic, seeks review of a March 8, 2012, decision of the BIA,

reversing the January 19, 2011, decision of Immigration Judge

(“IJ”) Steven R. Abrams granting his applications for a waiver of

inadmissibility under section 212(i) of the Immigration and

Nationality Act (“INA”), and for adjustment of status.     In re

Yefris Nunez, No. A098 070 173 (B.I.A. Mar. 8, 2012), rev’g No.

A098 070 173 (Immig. Ct. N.Y. City Jan. 19, 2011).   We assume the

parties’ familiarity with the underlying facts and procedural

history in this case.

     Under the circumstances of this case, we have considered the

decision of the BIA as well as those portions of the IJ’s

decision affirmed on appeal.    See Yan Chen v. Gonzales, 

, 271 (2d Cir. 2005).   The applicable standards of review are

well-established.   See 8 U.S.C. § 1252(b)(4)(B); see also Yanqin


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Weng v. Holder, 

, 513 (2d Cir. 2009).    Because Nunez

challenges the denial of a discretionary waiver, our jurisdiction

is limited to addressing constitutional claims and questions of

law.    See 8 U.S.C. §§ 1252(a)(2)(B) (limiting jurisdiction to

review discretionary denials), (D) (exceptions to jurisdictional

limitations), 1182(i)(2) (committing to the Attorney General’s

sole discretion the grant of a waiver under § 1182(i)(1)).

       Nunez raises questions of law by arguing that the agency

erroneously reviewed the IJ’s factual findings de novo and

erroneously re-weighed those findings to reach a different

discretionary decision.   We are not persuaded.   The BIA is

limited to clear error review only with respect to the IJ’s

factual findings.   8 C.F.R. § 1003.1(d)(3)(i).   The IJ’s comment

that a waiver would provide Nunez with an opportunity to “turn

his life around” did not amount to a factual finding.   It was not

“[a] determination of what will occur in the future and the

degree of likelihood of the occurrence,” Hui Lin Huang v. Holder,

, 134 (2d Cir. 2012), but rather a recognition of the

obvious: that a waiver would provide Nunez with the opportunity

to rehabilitate himself in this country.   Alternatively, to the

extent the IJ’s comment reflected a finding that Nunez was

willing to obtain employment if granted a waiver, the BIA did

defer to that finding and considered it as a positive equity.




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     Nunez also asserts that the BIA accepted the IJ’s factual

findings in name only, because it could not have reached a

different discretionary determination to deny the waiver had it

properly deferred to the IJ’s findings.   The BIA, however, does

not err when, as here, acting at its own discretion, it

recalculates the weight afforded to the same factors examined by

the IJ and reaches a different conclusion.   See 8 C.F.R.

§ 1003.1(d)(3)(ii) (granting the BIA de novo review over the IJ’s

legal and discretionary determinations); Noble v. Keisler, 

, 78 (2d Cir. 2007) (finding no error of law in the BIA’s

recalculation of the equities despite accepting the IJ’s factual

findings).   Nunez’s argument on this point contests the BIA’s

discretionary weighing of the equities—a determination we are not

permitted to review.   See Noble, 505 F.3d at 78.

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

                               FOR THE COURT:
                               Catherine O’Hagan Wolfe, Clerk




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