Barros v. Barr

• Court: Court of Appeals for the Second Circuit
• Decided: January 23, 2020
• Docket: 18-3101 (L)
• Status: Unpublished

Opinion

18-3101 (L) Barros v. Barr BIA Kolbe, IJ A089 175 426/088 619 331

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 COURT=S 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 “SUMMARY ORDER”). A PARTY CITING TO 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 23rd day of January, two thousand twenty.

PRESENT: REENA RAGGI, DEBRA ANN LIVINGSTON, WILLIAM J. NARDINI, Circuit Judges. _____________________________________

JOSE ALBERTO BARROS, AKA JOSE BARROS ESCANDON, NANCY LEONOR TENESACA PACHO, Petitioners,

v. 18-3101 (L), 18-3119 (Con)

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

FOR PETITIONERS: Cory Forman, Cohen Forman Barone, LLP, New York, NY.

FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney General; Cindy S. Ferrier, Assistant Director; Micah S. Engler, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.

UPON DUE CONSIDERATION of these petitions for review of a

Board of Immigration Appeals (“BIA”) decision, it is hereby

ORDERED, ADJUDGED, AND DECREED that the petitions for review are

DISMISSED.

Petitioners Jose Alberto Barros and Nancy Leonor Tenesaca

Pacho, natives and citizens of Ecuador, seek review of a BIA

decision affirming without opinion an Immigration Judge’s (“IJ”)

denial of Barros’s and Tenesaca Pacho’s applications for

cancellation of removal under 8 U.S.C. § 1229b(b)(1). In re

Barros & Tenesaca Pacho, Nos. A 089 175 426/088 619 331 (B.I.A.

Sept. 19, 2018), aff’g Nos. A 089 175 426/088 619 331 (Immig. Ct.

N.Y. City Sept. 21, 2017). We assume the parties’ familiarity

with the underlying facts and procedural history in this case.

We review the IJ’s decision as the final agency determination

because the BIA summarily affirmed that decision. See 8 C.F.R.

§ 1003.1(e)(4); Shunfu Li v. Mukasey, 529 F.3d 141, 146 (2d Cir.

2008). We lack jurisdiction to review petitioners’ challenge to

the BIA’s decision not to issue a three-member ruling. See

Kambolli v. Gonzales, 449 F.3d 454, 461–63 (2d Cir. 2006); see

also 8 C.F.R. § 1003.1(e)(6) (setting out circumstances required

for three-member decision). The “streamlining regulations’

provision for summary affirmance of IJ decisions by a single Board 2 member does not deprive an asylum applicant of due process.” Yu

Sheng Zhang v. U.S. Dep’t of Justice, 362 F.3d 155, 157 (2d Cir.

2004).

Accordingly, the only issue before us is the IJ’s denial of

cancellation on the ground that Barros and Tenesaca Pacho did not

demonstrate that their U.S.-citizen children would suffer

exceptional and extremely unusual hardship in Ecuador.

Nonpermanent residents, such as Barros and Tenesaca Pacho, may

have their removal cancelled if, among other factors, they

demonstrate that their “removal would result in exceptional and

extremely unusual hardship” to a qualifying relative, here their

U.S.-citizen sons. 8 U.S.C. § 1229b(b)(1)(D). “[T]he hardship

to an alien’s relatives, if the alien is obliged to leave the

United States, must be ‘substantially’ beyond the ordinary

hardship that would be expected when a close family member leaves

this country.” In re Monreal-Aguinaga, 23 I. & N. Dec. 56, 62

(B.I.A. 2001) (quoting H.R. Conf. Rep. No. 104-828, at 213 (1996)).

Because cancellation is discretionary relief, our review is

limited to constitutional claims and questions of law. 8 U.S.C.

§ 1252(a)(2)(B)(i), (D); see also Barco-Sandoval v. Gonzales, 516

F.3d 35, 36 (2d Cir. 2008). To invoke our jurisdiction, such

claims must be “colorable.” Barco-Sandoval, 516 F.3d at 40 (“[W]e

lack jurisdiction to review any legal argument that is so

3 insubstantial and frivolous as to be inadequate to invoke federal-

question jurisdiction.”). Accordingly, we must determine whether

an argument “merely quarrels over the correctness of the factual

findings or justification for the discretionary choices, in which

case the court would lack jurisdiction.” Xiao Ji Chen v. U.S.

Dep’t of Justice, 471 F.3d 315, 329 (2d Cir. 2006).

We conclude that Barros and Tenesaca Pacho have not identified

a colorable constitutional claim or question of law regarding the

hardship determination. Although the agency may commit an error

of law if it “totally overlook[s]” or “seriously

mischaracterize[s]” material facts, Mendez v. Holder, 566 F.3d

316, 323 (2d Cir. 2009), that is not this case. The record

reflects that the IJ fairly considered petitioners’ evidence.

In urging otherwise, petitioners argue, first, that the IJ

erred in determining that Tenesaca Pacho’s risk of developing

breast cancer was too speculative to evaluate ensuing hardship to

her children. This argument disputes the IJ’s factual findings,

i.e., how likely it is that an event will occur, which we lack

jurisdiction to review. See Xiao Ji Chen, 471 F.3d at 329; see

also Hui Lin Huang v. Holder, 677 F.3d 130, 134 (2d Cir. 2012)

(explaining that “[a] determination of what will occur in the

future and the degree of likelihood of the occurrence has been

regularly regarded as fact-finding”).

4 Second, although petitioners argue that the IJ overlooked

environmental concerns, the IJ is not required to “expressly parse

or refute on the record each individual argument or piece of

evidence,” particularly if the evidence is not material. See Wei

Guang Wang v. BIA, 437 F.3d 270, 275–76 (2d Cir. 2006) (quotation

marks omitted). Petitioners did not show that evidence regarding

a volcano was material as they did not allege that they would live

near the volcano. Nor did the IJ err by not discussing a study

about higher risks of asthma and allergies in countries near the

equator, as such risks do not qualify as exceptional and extremely

unusual hardship. See In re Andazola-Rivas, 23 I. & N. Dec. 319,

320, 322 (B.I.A. 2002) (noting that exceptional and extremely

unusual hardship is a “very high standard”). Furthermore, the IJ

did not err in not explicitly discussing reports of arsenic in the

water in Latin America, as the report did not discuss any studies

in Ecuador.

Third, the IJ did not overlook or mischaracterize evidence

regarding the particular health conditions of petitioners’

children, Justin and Joseph. The IJ did not mischaracterize the

record by stating that Joseph’s heart murmur is expected to resolve

over time because a doctor’s letter stated that the murmur “should

resolve over time” and “[n]o treatment or restrictions are

currently indicated.” Although a nurse practitioner’s letter

5 noted that Justin’s eye condition needed monitoring, the IJ did

not mischaracterize the record in stating that an eye infection

was not an issue because Justin was not experiencing eye infections

or receiving treatment at the time of the hearing. See Mendez,

566 F.3d at 323 (“[T]he agency does not commit an ‘error of law’

every time an item of evidence is not explicitly considered or is

described with imperfect accuracy.”). The IJ also did not

mischaracterize the record in stating that Justin’s “eczema has

improved over time” because a medical letter describes his current

treatment as milder than his past treatment.

Fourth, the IJ did not err by not explicitly discussing a

psycho-emotional and family dynamics evaluation prepared for the

removal proceedings by a social worker, as the evaluation was

largely cumulative of Tenesaca Pacho’s testimony and the evaluator

did not interview Justin. The IJ was not required to accept the

social worker’s conclusions that Justin’s relocation outside the

United States would threaten his educational, physical, and

psycho-emotional health. See Y.C. v. Holder, 741 F.3d 324, 332

(2d Cir. 2013) (“We generally defer to the agency’s evaluation of

the weight to be afforded an applicant’s documentary evidence.”).

Moreover, the IJ acknowledged the concerns raised in the report

regarding the lower standard of living, diminished educational

opportunities, and reduced economic conditions that Justin and

6 Joseph would face in Ecuador. Although such circumstances are

“factors to consider,” they “generally will be insufficient in

themselves to support a finding of exceptional and extremely

unusual hardship.” Monreal-Aguinaga, 23 I. & N. Dec. at 63–64;

see Xiao Ji Chen, 471 F.3d at 336 n.17 (“[W]e presume that an IJ

has taken into account all of the evidence before h[er], unless

the record compellingly suggests otherwise.”).

Fifth, the IJ did not seriously mischaracterize or overlook

evidence regarding Justin’s learning disability. See Mendez, 566

F.3d at 323. Even if the IJ could have discussed these issues in

more detail, the IJ did not err in stating that Justin has speech

difficulties and receives one hour of speech therapy per week.

See id.

Finally, the record does not support petitioners’ argument

that the IJ failed to consider the totality of factors in assessing

the hardship to petitioners’ children from their parents’ removal

to Ecuador. See In re Gonzalez Recinas, 23 I. & N. Dec. 467, 472

(B.I.A. 2002) (noting that analysis “requires the assessment of

hardship factors in their totality”). As discussed above, the IJ

did not overlook relevant evidence and nothing in the record

indicates that the IJ considered each hardship in isolation,

without ultimately considering cumulative effect. Because the

record does not support petitioners’ claim that the IJ failed to

7 analyze the evidence as a whole, petitioners have also failed to

state a due process claim. See Burger v. Gonzales, 498 F.3d 131,

134 (2d Cir. 2007) (“To establish a violation of due process, an

alien must show that she was denied a full and fair opportunity to

present her claims or that the IJ or BIA otherwise deprived her of

fundamental fairness.” (quotation marks omitted)).

Because Barros and Tenesaca Pacho do not raise a colorable

constitutional claim or question of law, we are without

jurisdiction to review their arguments further. See 8 U.S.C.

§§ 1229b(b)(1)(D), 1252(a)(2)(B), (D).

For the foregoing reasons, the petitions for review are

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court