18-3363-ag Marquez v. Garland 1 2 United States Court of Appeals 3 for the Second Circuit 4 5 August Term 2021 6 7 (Argued: August 20, 2021 Decided: September 7, 2021) 8 9 Docket No. 18-3363-ag 10 _____________________________________ 11 12 JOSE ESTEBAN MARQUEZ, 13 Petitioner, 14 v. 15 16 MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, 17 Respondent. 18 _____________________________________ 19 Before: 20 21 RAGGI, CHIN, and PARK, Circuit Judges. 22 23 Jose Esteban Marquez was convicted in 2006 under New York’s child- 24 endangerment statute, N.Y. Penal Law § 260.10(1). In 2017, the United States 25 initiated removal proceedings against him, citing as a ground of removal 26 Marquez’s “conviction of . . . a crime of child abuse, child neglect, or child 27 abandonment.” 8 U.S.C. § 1227(a)(2)(E)(i). In 2010, the BIA held that this 28 provision included convictions under child-endangerment statutes for which 29 “actual harm” is not an element of the crime. See Matter of Soram, 25 I. & N. Dec. 30 378, 381 (B.I.A. 2010). Marquez argues that this 2010 holding should not apply 31 retroactively to his 2006 conviction and thus that there are no grounds for his 32 removal. Marquez also applied for cancellation of removal and argues that the 33 Immigration Judge erred by considering arrest reports in its denial of the 34 application. We hold that (1) Soram’s holding applies retroactively, rendering 35 Marquez removable, and (2) we lack jurisdiction to review the denial of Marquez’s 1 cancellation of removal because the agency retains discretion to weigh the 2 probative value of uncorroborated arrest reports. For these reasons, we DENY in 3 part and DISMISS in remaining part. 4 5 JENNIFER VAIL (Janet E. Sabel, Adriene L. 6 Holder, Judith Goldiner, Hasan Shafiqullah, 7 Julie Ann Dona, on the brief), The Legal Aid 8 Society, New York, NY, for Petitioner. 9 10 KATHERINE S. FISCHER (Bernard A. Joseph, 11 Karen L. Melnik, on the brief), for Kristen 12 Clarke, Assistant Attorney General, Civil 13 Division, Office of Immigration Litigation, 14 United States Department of Justice, 15 Washington, DC, for Respondent. 16 17 Park, Circuit Judge: 18 Jose Esteban Marquez, a native and citizen of the Dominican Republic, 19 petitions for review of an order of the Board of Immigration Appeals (“BIA”) 20 upholding rulings of an Immigration Judge (“IJ”) ordering Marquez’s removal 21 from the United States based on his conviction for a “crime of child abuse, child 22 neglect, or child abandonment,” 8 U.S.C. § 1227(a)(2)(E)(i), and denying his 23 request for cancelation of removal, see id. § 1229b. See In re Marquez, A043-906-201 24 (B.I.A. Nov. 2, 2018); see also In re Marquez, A043-906-201 (Immig. Ct. N.Y.C. 25 May 31, 2018); In re Marquez, A043-906-201 (Immig. Ct. N.Y.C. Nov. 29, 2017). In 26 2010, the BIA construed section 1227(a)(2)(E)(i) to include convictions under child- 2 1 endangerment statutes for which “actual harm” is not an element of the crime. 2 Matter of Soram, 25 I. & N. Dec. 378, …
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