Filed: Nov. 03, 2015
Latest Update: Mar. 02, 2020
Summary: 14-2779 Kim v. Lynch BIA Cheng, IJ A091 253 226 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 NOTATIO
Summary: 14-2779 Kim v. Lynch BIA Cheng, IJ A091 253 226 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..
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14-2779
Kim v. Lynch
BIA
Cheng, IJ
A091 253 226
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.
1 At a stated term of the United States Court of Appeals for the Second Circuit, held at
2 the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
3 York, on the 3rd day of November, two thousand fifteen.
4
5 PRESENT:
6 DEBRA ANN LIVINGSTON,
7 CHRISTOPHER F. DRONEY,
8 Circuit Judges,
9 SIDNEY H. STEIN,
10 District Judge.
11 _____________________________________
12
13 WON KYENG KIM, AKA XX KIM WON K,
14 AKA KYOUNG K. WON, AKA WONK YENG
15 KIM, AKA KYENG W. KIM, AKA KIM WON
16 KYONG, AKA KIM WON KYENG, AKA
17 KYENG KIMWON,
18
19 Petitioner,
20
21 v. 14-2779
22
23 LORETTA E. LYNCH, UNITED STATES
The Honorable Sidney H. Stein, of the United States District Court for the Southern District of
New York, sitting by designation.
1 ATTORNEY GENERAL,
2
3 Respondent.
4 _____________________________________
5 FOR PETITIONER: DAVID K. S. KIM, Flushing, New York.
6
7 FOR RESPONDENT: HILLEL R. SMITH, Attorney; Joyce R. Branda,
8 Acting Assistant Attorney General;
9 Terri J. Scadron, Assistant Director,
10 Office of Immigration Litigation,
11 United States Department of
12 Justice, Washington, D.C.
13
14 UPON DUE CONSIDERATION of this petition for review of a Board of Immigration
15 Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND DECREED that the
16 petition for review is DISMISSED.
17 Petitioner Won Kyeng Kim, a native and citizen of South Korea, seeks review of a July 7,
18 2014, decision of the BIA affirming the December 27, 2012, decision of an Immigration Judge
19 (“IJ”) denying cancellation of removal as a matter of discretion and ordering Kim removed. In re
20 Won Kyeng Kim, No. A 091-253-226 (B.I.A. July 7, 2014), aff’g No. A 091-253-226 (Immig. Ct.
21 New York, N.Y. Dec. 27, 2012). We assume the parties’ familiarity with the underlying facts,
22 procedural history, and issues on appeal in this case.
23 We lack jurisdiction to review the agency’s denial of cancellation of removal as a matter of
24 discretion. 8 U.S.C. § 1252(a)(2)(B); Barco-Sandoval v. Gonzales, 516 F.3d 35, 38-40 (2d Cir.
25 2007). Nevertheless, we retain jurisdiction insofar as the petition for review raises “constitutional
26 claims or questions of law,” 8 U.S.C. § 1252(a)(2)(D), which we review de novo, Pierre v. Holder,
27
588 F.3d 767, 772 (2d Cir. 2009). To determine whether jurisdiction exists in a particular case,
28 we “study the arguments asserted,” and consider, “regardless of the rhetoric employed in the
29 petition, whether it merely quarrels over the correctness of the factual findings or justification for
2
1 the discretionary choices, in which case [we] lack jurisdiction, or whether it instead raises a
2 ‘constitutional claim’ or ‘question of law,’ in which case [we may] exercise jurisdiction to review
3 those particular issues.” Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d Cir. 2006).
4 “[W]e lack jurisdiction to review any legal argument that is so insubstantial and frivolous as to be
5 inadequate to invoke federal-question jurisdiction.”
Barco-Sandoval, 516 F.3d at 40.
6 Kim argues that the agency erred as a matter of law in failing to consider all of his positive
7 equities, in weighing the positive and negative factors in his case, and in determining, on the basis
8 of the record, that he lacked remorse and failed to accept responsibility for his criminal behavior.
9 We lack jurisdiction to consider these contentions: they raise no colorable legal arguments and
10 thus merely challenge the agency’s factual findings and discretionary choices. See Carcamo v.
11 U.S. Dep’t of Justice,
498 F.3d 94, 98 (2d Cir. 2007) (“[A]bsent clear proof that the factual basis
12 for an IJ’s decision was unambiguously contradicted by the record, a petitioner raises no
13 ‘constitutional claim[ ] or question[ ] of law’ for us to review.” (quoting 8 U.S.C. § 1252(a)(2)(D))
14 (alterations in original)); Morales v. INS,
208 F.3d 323, 328 (1st Cir. 2000) (“Where, as here, the
15 Board has given reasoned consideration to the petition, and made adequate findings, we will not
16 require that it address specifically each claim the petitioner made or each piece of evidence the
17 petitioner presented.” (quoting Martinez v. INS,
970 F.2d 973, 976 (1st Cir. 1992))); Henry v. INS,
18
74 F.3d 1, 5 (1st Cir. 1996) (“Even in section 212(c) waiver cases, the Marin [equitable] factors are
19 only illustrative. They do not comprise an invariable checklist.”). Kim further argues that the
20 agency offered an insufficient rational explanation for its decision. Both the BIA and the IJ
21 carefully examined and weighed Kim’s positive and negative factors in reaching their decisions.
3
1 “[T]he BIA is not required to ‘write an exegesis on every contention.’” Mansour v. INS, 230 F.3d
2 902, 908 (7th Cir. 2000) (quoting Becerra-Jimenez v. INS,
829 F.2d 996, 1000 (10th Cir. 1987)).
3 We also lack jurisdiction to consider Kim’s frivolous argument that the agency committed
4 legal error in relying on the criminal complaints filed against him. “[P]olice reports and
5 complaints, even if containing hearsay and not a part of the formal record of conviction, are
6 appropriately admitted for the purposes of considering an application for discretionary relief.”
7
Carcamo, 498 F.3d at 98; see also In re Grijalva, 19 I. & N. Dec. 713, 722 (BIA 1988) (“[T]he
8 admission into the record of the information contained in the police reports is especially
9 appropriate in cases involving discretionary relief from deportation, where all relevant factors
10 concerning an arrest and conviction should be considered to determine whether an alien warrants a
11 favorable exercise of discretion.”). Although the agency is “hesitant to give substantial weight to
12 an arrest report, absent a conviction or corroborating evidence of the allegations contained
13 therein,” In re Arreguin De Rodriguez, 21 I. & N. Dec. 38, 42 (BIA 1995), the IJ did not rely on
14 uncorroborated criminal complaints in Kim’s case, but rather considered only criminal complaints
15 that ultimately led to convictions. And, contrary to Kim’s contention, the allegations of domestic
16 violence in the criminal complaint that resulted in Kim’s conviction for disorderly conduct were
17 corroborated by the issuance of an order of protection to protect Kim’s wife.
18 Accordingly, because Kim’s arguments merely challenge the IJ’s factual findings, we lack
19 jurisdiction over his petition. See 8 U.S.C. § 1252(a)(2)(B);
Barco-Sandoval, 516 F.3d at 38-40;
20 Xiao Ji
Chen, 471 F.3d at 329.
21 For the foregoing reasons, the petition for review is DISMISSED.
22 FOR THE COURT:
23 Catherine O=Hagan Wolfe, Clerk
4
