21-6256 Esquivel-Garcia v. Garland
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 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 5th day of October, two thousand twenty-two.
PRESENT: SUSAN L. CARNEY, JOSEPH F. BIANCO, ALISON J. NATHAN, Circuit Judges. _____________________________________
DANIEL ESQUIVEL-GARCIA,
Petitioner,
v. 21-6256
MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL,
Respondent. _____________________________________
FOR PETITIONER: PAUL O’DWYER, Esq., Law Office of Paul O’Dwyer, P.C., New York, NY.
FOR RESPONDENT: JESSICA R. LESNAU, Trial Attorney, Office of Immigration Litigation (Lindsay Marshall, Julie M. Iversen, Senior Litigation Counsel, on the brief), for Brian Boynton, Principal Deputy Assistant Attorney General, United States Department of Justice, Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a
decision of the Board of Immigration Appeals (“BIA”), it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review is
DISMISSED.
Petitioner Daniel Esquivel-Garcia, a native and citizen of
Mexico, seeks review of an April 12, 2021 decision of the BIA,
affirming a December 7, 2018 decision of an Immigration Judge
(“IJ”) denying his application for cancellation of removal. In
re Daniel Esquivel-Garcia, No. A206 031 064 (B.I.A. Apr. 12, 2021),
aff’g No. A206 031 064 (Immig. Ct. N.Y. City Dec. 7, 2018). We
assume the parties’ familiarity with the underlying facts and
procedural history.
We have reviewed the IJ’s decision as supplemented by the
BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).
A noncitizen like Esquivel-Garcia, who is not a permanent resident,
may have his removal cancelled if, as relevant here, he
“establishes that removal would result in exceptional and
extremely unusual hardship to [his] spouse, parent, or child, who
is a citizen of the United States or an alien lawfully admitted
for permanent residence.” 8 U.S.C. § 1229b(b)(1)(D). For a
2 petitioner to be eligible for cancellation, the hardship to the
qualifying relative “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) (internal quotation marks omitted). Our
jurisdiction to review the agency’s denial of cancellation of
removal based on an applicant’s failure to satisfy the hardship
requirement is limited to colorable constitutional claims and
questions of law. 8 U.S.C. § 1252(a)(2)(B), (D); Barco-Sandoval
v. Gonzales, 516 F.3d 35, 39-41 (2d Cir. 2008).
Esquivel-Garcia argues that the agency misconstrued or
ignored evidence, applied a heightened standard when considering
evidence of criminal conditions, and failed to consider hardship
evidence cumulatively. These arguments are not colorable and for
that reason we are not vested with jurisdiction over his petition.
First, the agency did not “totally overlook[]” or “seriously
mischaracterize[]” important facts. Mendez v. Holder, 566 F.3d
316, 323 (2d Cir. 2009). Contrary to Esquivel-Garcia’s
contention, the agency did not find that his extended family will
financially support him in Mexico; rather, the agency determined
that they might ease his family’s transition. See In re Andazola-
Rivas, 23 I. & N. Dec. 319, 323 (B.I.A. 2002) (recognizing that
3 adjustment to removal is more difficult without family members in
the country of removal). That finding was consistent with
Esquivel-Garcia’s testimony that he and his family would initially
stay at his mother’s house. And, contrary to his suggestion on
appeal, he did not raise a claim before the agency that his
children’s education would suffer because they will live in an
indigenous area. For that reason, the agency was not obligated
to give explicit consideration to evidence regarding educational
opportunities in such areas. See 8 U.S.C. § 1229a(c)(4)(A)(i)
(applicant bears burden of proof); Jian Hui Shao v. Mukasey, 546
F.3d 138, 169 (2d Cir. 2008) (“[W]e do not demand that the BIA
expressly parse or refute on the record each individual argument
or piece of evidence offered by the petitioner.” (internal
quotation marks omitted)).
The IJ did misquote Esquivel-Garcia as stating that violent
crimes did not typically occur in Zitácuaro. In fact, Esquivel-
Garcia testified that while violent crimes did not typically occur
in his hometown of Crescencio Morales, they did frequently occur
in Zitácuaro. However, Esquivel-Garcia conceded the argument in
his reply brief. Even if he had not, the IJ’s error does not rise
to the level of serious mischaracterization. The IJ concluded,
4 consistent with the evidence, that violent crimes were infrequent
in Esquivel-Garcia’s hometown.
Second, Esquivel-Garcia does not identify any error of law in
the agency’s decision declining to accept his late-filed evidence
concerning a recent violent incident that took place near his
hometown. See Dedji v. Mukasey, 525 F.3d 187, 191 (2d Cir. 2008)
(“[A]n IJ has broad discretion to set and extend filing deadlines
pursuant to 8 C.F.R. § 1003.31.”); see also Xiao Ji Chen v. U.S.
Dep’t of Just., 471 F.3d 315, 329 (2d Cir. 2006)(providing that a
question of law may arise “where a discretionary decision is argued
to be an abuse of discretion because it was made without rational
justification or based on a legally erroneous standard”). He does
not make out a constitutional claim, for example, that the
evidentiary decision violated his due process rights, because the
IJ permitted him to testify about the incident discussed in that
evidence and considered it. See Garcia-Villeda v. Mukasey, 531
F.3d 141, 149 (2d Cir. 2008) (“Parties claiming denial of due
process in immigration cases must, in order to prevail, allege
some cognizable prejudice fairly attributable to the challenged
process.” (internal quotation marks omitted)); cf. Martinez Roman
v.
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21-6256 Esquivel-Garcia v. Garland
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 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 5th day of October, two thousand twenty-two.
PRESENT: SUSAN L. CARNEY, JOSEPH F. BIANCO, ALISON J. NATHAN, Circuit Judges. _____________________________________
DANIEL ESQUIVEL-GARCIA,
Petitioner,
v. 21-6256
MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL,
Respondent. _____________________________________
FOR PETITIONER: PAUL O’DWYER, Esq., Law Office of Paul O’Dwyer, P.C., New York, NY.
FOR RESPONDENT: JESSICA R. LESNAU, Trial Attorney, Office of Immigration Litigation (Lindsay Marshall, Julie M. Iversen, Senior Litigation Counsel, on the brief), for Brian Boynton, Principal Deputy Assistant Attorney General, United States Department of Justice, Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a
decision of the Board of Immigration Appeals (“BIA”), it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review is
DISMISSED.
Petitioner Daniel Esquivel-Garcia, a native and citizen of
Mexico, seeks review of an April 12, 2021 decision of the BIA,
affirming a December 7, 2018 decision of an Immigration Judge
(“IJ”) denying his application for cancellation of removal. In
re Daniel Esquivel-Garcia, No. A206 031 064 (B.I.A. Apr. 12, 2021),
aff’g No. A206 031 064 (Immig. Ct. N.Y. City Dec. 7, 2018). We
assume the parties’ familiarity with the underlying facts and
procedural history.
We have reviewed the IJ’s decision as supplemented by the
BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).
A noncitizen like Esquivel-Garcia, who is not a permanent resident,
may have his removal cancelled if, as relevant here, he
“establishes that removal would result in exceptional and
extremely unusual hardship to [his] spouse, parent, or child, who
is a citizen of the United States or an alien lawfully admitted
for permanent residence.” 8 U.S.C. § 1229b(b)(1)(D). For a
2 petitioner to be eligible for cancellation, the hardship to the
qualifying relative “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) (internal quotation marks omitted). Our
jurisdiction to review the agency’s denial of cancellation of
removal based on an applicant’s failure to satisfy the hardship
requirement is limited to colorable constitutional claims and
questions of law. 8 U.S.C. § 1252(a)(2)(B), (D); Barco-Sandoval
v. Gonzales, 516 F.3d 35, 39-41 (2d Cir. 2008).
Esquivel-Garcia argues that the agency misconstrued or
ignored evidence, applied a heightened standard when considering
evidence of criminal conditions, and failed to consider hardship
evidence cumulatively. These arguments are not colorable and for
that reason we are not vested with jurisdiction over his petition.
First, the agency did not “totally overlook[]” or “seriously
mischaracterize[]” important facts. Mendez v. Holder, 566 F.3d
316, 323 (2d Cir. 2009). Contrary to Esquivel-Garcia’s
contention, the agency did not find that his extended family will
financially support him in Mexico; rather, the agency determined
that they might ease his family’s transition. See In re Andazola-
Rivas, 23 I. & N. Dec. 319, 323 (B.I.A. 2002) (recognizing that
3 adjustment to removal is more difficult without family members in
the country of removal). That finding was consistent with
Esquivel-Garcia’s testimony that he and his family would initially
stay at his mother’s house. And, contrary to his suggestion on
appeal, he did not raise a claim before the agency that his
children’s education would suffer because they will live in an
indigenous area. For that reason, the agency was not obligated
to give explicit consideration to evidence regarding educational
opportunities in such areas. See 8 U.S.C. § 1229a(c)(4)(A)(i)
(applicant bears burden of proof); Jian Hui Shao v. Mukasey, 546
F.3d 138, 169 (2d Cir. 2008) (“[W]e do not demand that the BIA
expressly parse or refute on the record each individual argument
or piece of evidence offered by the petitioner.” (internal
quotation marks omitted)).
The IJ did misquote Esquivel-Garcia as stating that violent
crimes did not typically occur in Zitácuaro. In fact, Esquivel-
Garcia testified that while violent crimes did not typically occur
in his hometown of Crescencio Morales, they did frequently occur
in Zitácuaro. However, Esquivel-Garcia conceded the argument in
his reply brief. Even if he had not, the IJ’s error does not rise
to the level of serious mischaracterization. The IJ concluded,
4 consistent with the evidence, that violent crimes were infrequent
in Esquivel-Garcia’s hometown.
Second, Esquivel-Garcia does not identify any error of law in
the agency’s decision declining to accept his late-filed evidence
concerning a recent violent incident that took place near his
hometown. See Dedji v. Mukasey, 525 F.3d 187, 191 (2d Cir. 2008)
(“[A]n IJ has broad discretion to set and extend filing deadlines
pursuant to 8 C.F.R. § 1003.31.”); see also Xiao Ji Chen v. U.S.
Dep’t of Just., 471 F.3d 315, 329 (2d Cir. 2006)(providing that a
question of law may arise “where a discretionary decision is argued
to be an abuse of discretion because it was made without rational
justification or based on a legally erroneous standard”). He does
not make out a constitutional claim, for example, that the
evidentiary decision violated his due process rights, because the
IJ permitted him to testify about the incident discussed in that
evidence and considered it. See Garcia-Villeda v. Mukasey, 531
F.3d 141, 149 (2d Cir. 2008) (“Parties claiming denial of due
process in immigration cases must, in order to prevail, allege
some cognizable prejudice fairly attributable to the challenged
process.” (internal quotation marks omitted)); cf. Martinez Roman
v. Garland, 2022 WL 4241573, at *7-*10 (2d Cir. Sept. 15, 2022)
5 (concluding that the IJ’s denial of a continuance to hear live
testimony from a noncitizen’s children was an abuse of discretion).
Further, the agency did not apply an erroneously heightened
legal standard by requiring him to show that his children would be
singled out for violent crime in Mexico. Rather, it appropriately
acknowledged crime conditions, noted that Esquivel-Garcia’s
extended family in Mexico generally had not suffered from crime,
and observed the lack of evidence as to how his young children
specifically would suffer hardship from general crime conditions.
See In re Andazola-Rivas, 23 I. & N. Dec. at 323 (“[T]he relative
level of hardship a person might suffer . . . must necessarily be
assessed, at least in part, by comparing it to the hardship others
might face.”).
Finally, contrary to Esquivel-Garcia’s assertion, the IJ
explicitly considered the claimed hardships cumulatively. See In
re Gonzalez Recinas, 23 I. & N. Dec. 467, 472 (B.I.A. 2002) (“Part
of that analysis requires the assessment of hardship factors in
their totality, often termed a ‘cumulative’ analysis.”). We lack
jurisdiction to review the agency’s weighing of the hardship
evidence or balancing of factors. See Barco-Sandoval, 516 F.3d
at 42; Argueta v. Holder, 617 F.3d 109, 113 (2d Cir. 2010).
6 For the foregoing reasons, the petition for review is
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court