19-4005 Cheng v. Wilkinson BIA Mulligan, IJ A029 388 399 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. 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 12th day of February, two thousand twenty-one. PRESENT: JOHN M. WALKER, JR., ROBERT A. KATZMANN, RAYMOND J. LOHIER, JR., Circuit Judges. _____________________________________ XIAN CHENG, AKA XIANG CHENG, Petitioner, v. 19-4005 ROBERT M. WILKINSON, ACTING UNITED STATES ATTORNEY GENERAL, Respondent. 1 _____________________________________ FOR PETITIONER: Aleksander B. Milch, The Kasen Law Firm, PLLC, Flushing, NY. FOR RESPONDENT: Zoe J. Heller, Senior Litigation Counsel, Rodolfo D. Saenz, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC. 1 Pursuant to Fed. R. App. P. 43(c)(2), Robert M. Wilkinson is automatically substituted for former Acting Attorney General Jeffrey A. Rosen. UPON DUE CONSIDERATION of this petition for review of a decision of the Board of Immigration Appeals (“BIA”), it is hereby ORDERED, ADJUDGED, AND DECREED that the petition for review is DISMISSED. Petitioner Xian Cheng, a native and citizen of the People’s Republic of China, seeks review of a November 6, 2019 decision of the BIA affirming a March 14, 2018 decision of an Immigration Judge (“IJ”) denying his application for a waiver of inadmissibility under 8 U.S.C. § 1182(h). In re Xian Cheng, No. A029 388 399 (B.I.A. Nov. 6, 2019), aff’g No. A029 388 399 (Immig. Ct. N.Y.C. Mar. 14, 2018). We assume the parties’ familiarity with the underlying facts and procedural history. Adjustment to lawful permanent resident status is a discretionary form of relief that requires an alien to show that there is an immediately available visa and that he is admissible to the United States. 8 U.S.C. § 1255(a). Because Cheng conceded that his 1999 assault conviction was a crime involving moral turpitude, he was inadmissible and thus ineligible for adjustment absent a waiver. 8 U.S.C. § 1182(a)(2)(A)(i)(I). Accordingly, he had the burden to show both eligibility for a waiver—that the “denial of admission would result in extreme hardship to [a] United States citizen or lawfully resident spouse, parent, son, or daughter”—and that he merits a waiver as a matter of discretion. 8 U.S.C. § 1182(h)(1)(B); Bugayong v. INS, 442 F.3d 67, 73 (2d Cir. 2006). Ultimately, the agency must determine whether to exercise its discretion by balancing the positive and negative factors in ...
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