Full Opinion

25-1395 Orellana Posadas v. Blanche BIA Conroy, IJ A207 675 756 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 3rd day of November, two thousand twenty-six. PRESENT: BARRINGTON D. PARKER, DEBRA ANN LIVINGSTON, MYRNA PÉREZ, Circuit Judges. _____________________________________ KEVIN ALEXANDER ORELLANA POSADAS, Petitioner, v. 25-1395 TODD BLANCHE, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________ 1 FOR PETITIONER: EDGAR L. FANKBONNER, The Law Office of Edgar Loy Fankbonner, P.C., New York, NY. FOR RESPONDENT: KRISHANA PATEL, Trial Attorney, Office of Immigration Litigation (David J. Schor, Senior Litigation Counsel, on the brief), for Brett A. Shumate, Assistant Attorney General, Civil Division, U.S. Department of Justice, Washington, DC. 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 IN PART and DISMISSED IN PART. Petitioner Kevin Alexander Orellana Posadas, a native and citizen of Guatemala, seeks review of a decision of the BIA affirming a decision of an Immigration Judge (“IJ”) denying a waiver of inadmissibility and adjustment of status. In re Orellana Posadas, No. A207 675 756 (B.I.A. May 6, 2025), aff’g No. A207 675 756 (Immigr. Ct. N.Y.C. Nov. 22, 2024). In 2022, Orellana Posadas was convicted on two counts of attempted possession of a sexual performance by a child, in violation of New York Penal Law §§ 110.00 and 263.16. This rendered him inadmissible under 8 U.S.C. § 1182(a)(2)(A)(i), and thus ineligible for an adjustment of his immigration status absent a waiver. We assume the parties’ familiarity with the underlying facts and procedural history. 2 We review the IJ’s decision as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The Attorney General, “in his discretion,” may waive certain criminal grounds of inadmissibility if the applicant establishes, as relevant here, that “denial of admission would result in extreme hardship to [his] United States citizen . . . spouse.” 8 U.S.C. § 1182(h)(1)(B), (2). Establishing statutory eligibility is a threshold requirement; the agency must then decide whether the applicant merits a favorable exercise of discretion. See id.; Samuels v. Chertoff, 550 F.3d 252, 257 (2d Cir. 2008). For cases involving “violent or dangerous crimes,” the Attorney General generally will not exercise that discretion favorably absent “extraordinary circumstances,” which may include “exceptional and extremely unusual hardship.” 8 C.F.R. § 1212.7(d). Section 1212.7(d) guides the agency’s exercise of discretion without altering the statutory eligibility requirement. See Samuels, 550 F.3d at 257. Here, the agency found that Orellana Posadas established extreme hardship to his wife but concluded that his crime was dangerous—triggering the heightened discretionary standard—and that the circumstances did not warrant a favorable exercise of discretion. See Certified Administrative Record (“CAR”) at 3–4, 78–82. It therefore denied the waiver and, because Orellana Posadas remained inadmissible, adjustment of status. See id. at 4, 82. 3 Our jurisdiction to review the denial of a waiver or adjustment of status is limited to constitutional claims and questions of law. See 8 U.S.C. § 1252(a)(2)(B)(i), (D); see also Wilkinson v. Garland, 601 U.S. 209, 225 (2024) (“Mixed questions of law and fact, even when they are primarily factual, fall within the statutory definition of ‘questions of law’ in § 1252(a)(2)(D) and are therefore reviewable.”). Orellana Posadas challenges the agency’s dangerous-crime determination, its treatment of his experts and the IJ’s questioning of them, and its consideration of his own hardship. We deny the petition insofar as it challenges the dangerous-crime determination and dismiss the remaining challenges for lack of jurisdiction. We begin with the dangerous-crime determination. We assume, without deciding, that we have statutory jurisdiction to review that determination. See Ahmed v. Holder, 624 F.3d 150, 154–55 (2d Cir. 2010) (per curiam). We need not decide the applicable standard of review because the agency’s determination withstands even de novo review. See KC v. Garland, 108 F.4th 130, 134 (2d Cir. 2024). Orellana Posadas argues that the IJ failed to explain why his offense was dangerous and that the ordinary meaning of “dangerous” requires a risk of serious bodily harm. But the IJ consulted dictionary definitions of “danger” centered on exposure to injury or harm and explained why Orellana Posadas’s conduct met that standard. See 4 CAR at 79–81. We see no basis for treating this conduct as less dangerous because the resulting injury is psychological rather than physical. And, as the BIA explained, possession itself can perpetuate injury to the children depicted. See CAR at 4; Paroline v. United States, 572 U.S. 434, 457 (2014) (observing that “[i]n a sense, every viewing of child pornography is a repetition of the victim’s abuse”). Nor was the agency required to confine its inquiry to the elements of attempted possession. In determining whether an applicant warrants discretionary relief, the agency may consider the facts and conduct underlying the conviction. See Quito v. Barr, 948 F.3d 83, 94 (2d Cir. 2020). Here, the agency relied on Orellana Posadas’s testimony that he viewed child pornography over several years, continuing into adulthood, and encountered images depicting children as young as five. See CAR at 4, 81. Given that conduct and the serious, continuing injury to the children depicted, we agree that his case involved a dangerous crime under § 1212.7(d).1 Orellana Posadas’s reliance on expert opinions concerning his rehabilitation and likelihood of reoffending does not undermine that classification. Section 1212.7(d) asks whether the case involves a dangerous crime, rather than whether the applicant currently 1 Orellana Posadas also contends that the IJ reached the dangerous-crime determination before hearing his testimony. The IJ, however, expressly considered that testimony in his final written decision denying reconsideration. See CAR at 79–81. 5 poses a danger to others. See 8 C.F.R. § 1212.7(d) (referring to “cases involving violent or dangerous crimes”). Rehabilitation bears on the ultimate exercise of discretion, but it does not establish that the underlying crime was not dangerous. See Samuels, 550 F.3d at 262. We therefore deny the petition insofar as it challenges the agency’s dangerous- crime determination. We turn next to Orellana Posadas’s challenge to the weight the agency assigned to his experts’ testimony, which falls outside our jurisdiction. Although wholly overlooking or seriously mischaracterizing material evidence may present a question of law, see Mendez v. Holder, 566 F.3d 316, 323 (2d Cir. 2009) (per curiam), the IJ expressly discussed each expert’s testimony and explained why he declined to accept certain conclusions. See CAR at 73–74. Finding those witnesses credible did not require the IJ to accept every opinion they offered. See Garland v. Ming Dai, 593 U.S. 357, 371–72 (2021). Orellana Posadas’s disagreement with the IJ’s explanations concerns the evidence’s weight and the inferences drawn from it. Those are factual questions beyond our review. See Penaranda Arevalo v. Bondi, 130 F.4th 325, 340 (2d Cir. 2025). Orellana Posadas’s related contention that the IJ’s questioning demonstrated bias does not present a colorable constitutional claim or question of law. An IJ is authorized to question witnesses and must develop the record while remaining a neutral, impartial 6 arbiter. See 8 U.S.C. § 1229a(b)(1); Islam v. Gonzales, 469 F.3d 53, 55 (2d Cir. 2006). The questions Orellana Posadas identifies sought explanations of the experts’ methods and the bases for their conclusions. Such requests for explanation and clarification, without more, fall within the IJ’s record-development role and do not suggest that he abandoned his impartiality. See Islam, 469 F.3d at 55. We therefore dismiss the expert-related challenges for lack of jurisdiction. Finally, Orellana Posadas argues that the agency considered only his wife’s hardship when applying § 1212.7(d), overlooking the hardship that removal would cause him personally. That argument mischaracterizes the agency’s analysis. The IJ considered his residence in the United States since age two, his lack of memory of Guatemala, his employment history, his family relationships and family-related health issues, and other favorable equities. See CAR at 81–82. The BIA then expressly addressed his argument concerning his own hardship, discussing his lifelong residence here, language ability, family connections in Guatemala, vocational training, and employment prospects. See id. at 4. It then affirmed the discretionary denial based on consideration of hardship to both Orellana Posadas and his wife. See id. Because this challenge rests on a mischaracterization of the agency’s analysis, it supplies no basis for jurisdiction, and we dismiss it. See Hernandez v. Garland, 66 F.4th 94, 102 (2d Cir. 2023). 7 For the foregoing reasons, the petition for review is DENIED IN PART and DISMISSED IN PART. FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court 8