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16‐4149‐ag
Brevil v. Barr
BIA
Bukszpan, IJ
A200 465 552

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 COURTʹS 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 ʺSUMMARY ORDERʺ). 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 12
th
day of February, two thousand twenty.

PRESENT: DENNIS JACOBS,
GUIDO CALABRESI,
DENNY CHIN,
Circuit Judges.
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PELEGE BREVIL,
Petitioner,

‐v‐ 16‐4149‐ag

WILLIAM P. BARR, UNITED STATES
ATTORNEY GENERAL,
Respondent.

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FOR PETITIONER: Ryan C. Brewer, The Bronx Defenders, Bronx,
New York.

FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney General;
Anthony P. Nicastro, Assistant Director, Office
of Immigration Litigation; Dana M. Camilleri,
Trial Attorney, Office of Immigration
Litigation, Civil Division, United States
Department of Justice, Washington, D.C.

UPON DUE
CONSIDERATION of this petition for review of a decision
of the Board of Immigration Appeals (ʺBIAʺ), it is hereby ORDERED, ADJUDGED,
and DECREED that the petition for review is DENIED.
Petitioner Pelege Brevil, a native and citizen of Haiti, seeks review of an
October 28, 2016, decision of the BIA, affirming the May 16, 2016, decision of an
Immigration Judge (ʺIJʺ) ordering him removed and denying temporary protected
status (ʺTPSʺ). In re Pelege Brevil, A200 465 552 (B.I.A. Oct. 28, 2016), affʹg No. A200 465
552 (Immig. Ct. N.Y. City May 16,
2016). We assume the partiesʹ familiarity with the
underlying facts, procedural history, and issues on appeal.
Under the circumstances of this case, we have considered both the IJʹs and
the BIAʹs opinions ʺfor the sake of completeness.ʺ Wangchuck v. Depʹt of Homeland Sec.,
448 F.3d 524,
528 (2d Cir. 2006). The applicable standards of review are well
established. 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir.
2009). Given the Governmentʹs concession before the agency that Brevil was statutorily
eligible for TPS and the agencyʹs apparent assumption of eligibility, the only issue

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properly before us is the agencyʹs discretionary denial of TPS. See Lin Zhong v. U.S.
Depʹt of Justice, 480 F.3d 104, 122 (2d Cir. 2007) (ʺ[W]e may consider only those issues
that formed the basis for [the agencyʹs] decision.ʺ).
Brevil argues that the agency erred in denying TPS as a matter of
discretion without first articulating a legal standard for making such decisions. The
Government argues that we lack jurisdiction to consider this argument because Brevil
did not exhaust it before the BIA. The issue did not arise, however, until the BIA
denied TPS as a matter of discretion without articulating a legal standard for granting
TPS and applied a standard that differed from the one relied on by the IJ. See Pierre v.
Holder, 588 F.3d 767, 777 & n.4 (2d Cir. 2009). Hence, the exhaustion argument does not
apply. Moreover, while the
agency argues that we lack jurisdiction to review the
discretionary denial of a TPS application, see 8 U.S.C. § 1252(a)(2)(B)(ii), we retain
jurisdiction to review constitutional claims and ʺquestions of law,ʺ 8 U.S.C. §
1252(a)(2)(D).
Assuming without deciding that Brevil raises a question of law, we
conclude that remand is
not required. We agree with Brevil that the agency denied him
TPS as a matter of discretion without establishing a clear legal standard, see In re
Mendez‐Moralez, 21 I. & N. Dec. 296, 300 (BIA 1996) (ʺ[I]t is prudent to avoid cross
application, as between different types of
relief, of particular principles or standards for
the exercise of discretion.ʺ). The BIA has since established a standard for evaluating

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discretionary TPS. Nonetheless, remand is not required because the agency here
weighed many of the factors identified as relevant in that standard, taking into account
both the positive and negative equities established in the record. Matter of D‐A‐C‐, 27 I.
& N. Dec. 575, 577‐78 (BIA 2019). Finally, even assuming that the IJ erred in applying
the correct standard, remand is unnecessary here because we are confident that the
agency will reject Brevilʹs TPS application even under the newly‐articulated standard, in
light of his conviction for sexual misconduct with a minor, i.e., a thirteen‐year old girl,
and his lack of remorse. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 339 (2d Cir.
2006) (holding that remand is futile when this Court can ʺconfidently predictʺ that the
agency would reach the same decision absent any errors).
For the foregoing reasons,
the petition for review is DENIED. All
pending motions and applications are DENIED and stays VACATED.
FOR THE COURT:
Catherine OʹHagan Wolfe, Clerk