Gagan Deep SINGH, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent, 208 F. App'x 73

SUMMARY ORDER Petitioner Gagan Deep Singh, a native of India, seeks review of an order of the BIA summarily affirming an order of Immigration Judge (“IJ”) Michael Rocco, denying petitioner’s application for cancellation of removal pursuant to 8 U.S.C. § 1229b(

a) and ordering him removed to India. In re Singh, No. [ A XX XXX XXX ] (B.I.A Jan. 21, 2003), aff'g No. 41 806 681 (Immig. Ct. Buffalo Aug. 14, 2001). We assume the parties’ familiarity with the underlying facts and procedural history. When the BIA summarily affirms an IJ’s decision, we review the IJ’s decision as the final agency determination. Ming Xia Chen v. Board of Immigration Appeals, 435 F.3d 141, 144 (2d Cir.2006).

Petitioner claims that (1) the IJ erred by applying a heightened legal standard to petitioner’s application, requiring him to demonstrate outstanding and unusual equities before the IJ could exercise his discretion to grant the application; (2) the IJ erred as a matter of law in evaluating the equities of petitioner’s application by considering petitioner’s conduct relating to the underlying basis of removability, where no criminal charges resulted from that conduct; and (3) petitioner received ineffective assistance of counsel.

We need not determine whether petitioner’s claims concerning the standard used and the conduct considered by the IJ are “subsidiary” to the issues raised before the BIA, Gill v. INS, 420 F.3d 82, 87 (2d Cir.2005), or whether the claims present “colorable ... questions of law sufficient to invoke our jurisdiction under the REAL ID Act, 8 U.S.C. § 1252(a)(2)(D),” Avendano-Espejo v. Department of Homeland Security, 448 F.3d 503, 505 (2d Cir.2006), because we would deny both these claims even if they had been argued to the BIA and if jurisdiction were proper. See Marquez-Almanzar v.

INS, 418 F.3d 210, 216 n. 7 (2d Cir.2005) (assuming hypothetical jurisdiction where jurisdictional issues involved only statutory, and not constitutional, jurisdiction). First, although the IJ noted in his introductory description of the law regarding cancellation of removal that “in some cases” an alien may have to demonstrate “unusual or outstanding equities” in order to warrant a favorable exercise of discretion — a standard that the BIA subsequently held to be obsolete as the result of changes to federal immigration law in 1996, see In re Sotelo-Sotelo, 23 I. & N.

Dec. 201, 203-04 (BIA 2001) — nothing in the IJ’s analysis suggests that he considered such a standard applicable to petitioner’s case or that the IJ did anything but “weigh the favorable and adverse factors to determine whether, on balance, the totality of the evidence before [him] indicated] that the [petitioner] ... adequately demonstrated that he warranted] a favorable exercise of discretion, and a grant of cancellation of removal____” Id. at 204 (internal quotation marks omitted).

Second, petitioner cites to no statute, regulation, or case law that prohibits an IJ, when deciding whether to grant cancellation of removal, from taking into account the grounds for a petitioner’s removal, and any conduct associated with those grounds, unless criminal charges have been filed. Petitioner merely points out the unremarkable facts that In re Thomas, 21 I. & N. Dec. 20 (BIA 1995), one of the cases cited to by the IJ in his

summary of the law, involved an alien who had been convicted of crimes and that other cases have involved aliens who have been charged with crimes. Petitioner offers no authority that calls into question the IJ’s right, when making a discretionary decision, to consider “the nature and underlying circumstances” of the ground for petitioner’s removal. See In re Marin, 16 I. & N. Dec. 581, 584 (BIA 1978) (discussing adverse factors that an IJ might consider in deciding whether to grant discretionary relief under another

section of the Immigration and Nationality Act); Sotelo-Sotelo, 23 I. & N. Dec. at 203 (general standards for exercising discretion as enunciated in Marin are applicable to cancellation of removal). We deny petitioner’s claim of ineffective assistance of counsel because petitioner has offered no proof that he has raised this claim before the BIA in the first instance or that he has substantially complied with the administrative requirements of In re Lozada, 19 I. & N. 637 (BIA 1988). See Zheng v. United States Dep’t of Justice, 409 F.3d 43, 46-47 (2d Cir.2005).

For the foregoing reasons, the petition for review is DENIED. . Because we assume hypothetical jurisdiction over these claims and review their merits, we have no cause to address petitioner’s dubious contention that limitations on judicial review would somehow render the

summary affirmance of the IJ’s decision by a single member of the BIA a violation of due process.