Xian Cheng v. Robert M. Wilkinson

Summary

**Cheng v. Wilkinson, 2d Cir. 2021 (unpublished)** – Immigration; waiver of inadmissibility under 8 U.S.C. § 1182(h); discretionary denial of adjustment of status. The Second Circuit dismissed the petition for review, holding that it lacked jurisdiction under 8 U.S.C. § 1252(a)(2)(B)(i) and (a)(2)(D) because the petitioner’s challenges to the agency’s balancing of positive and negative factors—including the weight given to his criminal history and hardship evidence—raised only factual disputes, not colorable constitutional claims or questions of law. The court also noted that the agency may consider a prior conviction as a negative factor in its discretionary analysis even if the conviction is not itself a ground of inadmissibility.

Holdings

1. The court lacks jurisdiction to review the discretionary denial of a waiver of inadmissibility because Cheng's arguments do not raise a colorable constitutional claim or question of law; they are disputes over the weighing of evidence and factors.

Questions Presented

1. Whether the agency erred in denying the waiver by failing to consider positive factors (e.g., grant of asylum, long residence, family ties).
2. Whether the agency mischaracterized the hardship to Cheng's wife and daughter.
3. Whether the agency mischaracterized the nature and seriousness of his convictions.
4. Whether the agency failed to consider Cheng's remorse.

Disposition

dismissed