Sami AL-SHAHIN, Petitioner, v. Eric HOLDER, Jr., Attorney General of the United States, Respondent, 354 F. App'x 583

SUMMARY ORDER Petitioner Sami Al-Shahin seeks review of a decision of the BIA which affirmed an order the Immigration Judge (“IJ”) denying his applications for waiver of inadmissibility, adjustment of status, cancellation of removal, asylum, and withholding of removal. Because the BIA adopted and supplemented the decision of the IJ, we review the decision of the IJ as supplemented by the BIA. Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presexxted for review.

Al-Shahin first contends that the IJ committed legal eiror in failing to consider evidence of rehabilitation and in denying his application for § 212(

h) relief. See 8 U.S.C. § 1182(h). Our review of an IJ’s § 212(

h) decision is limited to “constitutional claims or questions of law.” See 8 U.S.C. § 1252(a)(2)(D). Al-Shahin’s argument fails because it raises a factual challenge, not a legal one; we presume, as we must, that the IJ did consider the evidence of Al-Shahin’s rehabilitation. See Xiao Ji Chen v. U.S. Dep’t of Justice, 434 F.3d 144, 159 n. 13 (2d Cir.2006) (“[W]e presume that an IJ has taken into accouxxt all of the evidence befoi'e him, unless the record compellingly sxxggests otherwise.”).

We therefore treat the IJ’s finding of an “ab-sen[c]e of rehabilitation” as a conclusion based on the evidence, and not as a failure to consider the evidence. Accordingly, we have no jurisdiction to consider his argument. Al-Shahin also argues that the IJ erred in denying his applications for asylum and withholding of removal because the IJ applied an erroneous legal standard to determine that Al-Shahin had been convicted of a “particularly serious crime.” See Matter of Frentescu, 18 I. & N. Dec. 244, 245 (BIA 1982), superseded in pari by statute as recognized in In re L-S-, 22 I. & N. Dec. 645, 650 (BIA 1999).

This is a question of law that we have jurisdiction to review. See 8 U.S.C. § 1252(a)(2)(D). Under governing BIA precedent, four factors bear on whether a crime is “particularly serious” so as to render an alien ineligible for asylum and withholding of removal: “the nature of the conviction, the circumstances and underlying facts of the conviction, the type of sentence imposed, and, most importantly, whether the type and circumstances of the crime indicate that the alien will be a danger to the community.” Id. at 247. There is no error in the IJ’s application of these principles.

Al-Shahin challenges the IJ’s conclusion that he failed to accrue the seven years of continuous residency required for a grant of cancellation of l'emoval. See 8 U.S.C. § 1229b(a)(2). We have jurisdiction to review this legal question, but there is no merit in Al-Shahin’s argument. Under the relevant statute, any period of continuous residence is deemed to end upon the commission of an offense that renders the alien inadmissible to the United States. See 8 U.S.C. § 1229b(d)(1)(B). The IJ properly applied the statute to the facts and determined that Al-Shahin was ineligible for cancellation of removal.

Finally, Al-Shahin contends that the IJ committed IJ gal error in administratively closing his case in November 2002. But on appeal Al-Shahin concedes that any error caused him no prejudice. Accordingly, and without addressing the merits, we will not remand on this ground. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 338 (2d Cir.2006). Finding no merit in Al-Shahin’s remaining arguments, we hereby DENY the petition.