21-6216 Figueroa v. Garland BIA O’Sullivan, IJ A214 700 882
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.
1 At a stated term of the United States Court of Appeals for the Second 2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 3 Square, in the City of New York, on the 18th day of September, two thousand 4 twenty-three. 5 6 PRESENT: 7 REENA RAGGI, 8 RAYMOND J. LOHIER, JR., 9 SUSAN L. CARNEY, 10 Circuit Judges. 11 _____________________________________ 12 13 METODIO GUZMAN FIGUEROA, 14 Petitioner, 15 16 v. 21-6216 17 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 1 FOR PETITIONER: Erin O’Neil-Baker, O’Neil Baker Law, LLC, 2 Hartford, CT 3 4 FOR RESPONDENT: Brian Boynton, Principal Assistant Attorney 5 General, Civil Division; Justin R. Markel, 6 Senior Litigation Counsel; Brooke M. Maurer, 7 Trial Attorney, Office of Immigration 8 Litigation, United States Department of 9 Justice, Washington, DC
10 UPON DUE CONSIDERATION of this petition for review of a Board of
11 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND
12 DECREED that the petition for review is DISMISSED.
13 Petitioner Metodio Guzman Figueroa, a native and citizen of Mexico, seeks
14 review of a March 25, 2021 decision of the BIA denying his application for
15 cancellation of removal. In re Metodio Guzman Figueroa, No. A 214 700 882 (B.I.A.
16 Mar. 25, 2021), rev’g No. A 214 700 882 (Immig. Ct. Boston May 28, 2020). 1 In
17 particular, Figueroa challenges the BIA’s decision reversing the determination of
18 an Immigration Judge granting his application for would cause his wife, a United
1 The United States Court of Appeals for the First Circuit is the proper venue for this case because proceedings were completed in Boston. See 8 U.S.C. § 1252(b)(2). We have retained Figueroa’s case, however, “in the interest of justice,” Sarr v. Garland, 50 F.4th 326, 333–34 (2d Cir. 2022), because the proceedings before us have been extensive and because the parties have not challenged venue, see Moreno-Bravo v. Gonzalez, 463 F.3d 253, 262 (2d Cir. 2006) (8 U.S.C. § 1252(b)(2) “is a venue provision, not a jurisdictional one. We therefore are not compelled to dismiss or transfer the petition, and in the circumstances here presented, we decline to do so.”). 2 1 States citizen, “exceptional and extremely unusual hardship.” See In re Metodio
2 Guzman Figueroa, No. A 214 700 882 (B.I.A. Mar. 25, 2021). We assume the parties’
3 familiarity with the underlying facts and the record of prior proceedings, to which
4 we refer only as necessary to explain our decision to dismiss.
5 We review the BIA’s decision as the final agency determination. See Chen
6 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). To be eligible for cancellation of
7 removal, Figueroa had the burden of establishing that his removal would cause
8 his wife, a United States citizen, “exceptional and extremely unusual hardship.”
9 8 U.S.C. §§ 1229a(c)(4)(A)(i) (placing burden on applicant for relief), 1229b(b)(1)(D)
10 (hardship requirement). To meet this standard, Figueroa was required to
11 “establish that his qualifying relative[] would suffer hardship that is substantially
12 different from, or beyond, that which would normally be expected from the
13 deportation of an alien with close family members here.” In re Monreal-Aguinaga,
14 23 I. & N. Dec. 56, 65 (B.I.A. 2001). The agency considers hardship factors in the
15 aggregate, including “the ages, health, and circumstances of qualifying . . .
16 relatives.” Id. at 63. “A lower standard of living or adverse country conditions
17 in the country of return are factors to consider only insofar as they may affect a
18 qualifying relative, but generally will be insufficient in themselves to support a
3 1 finding of exceptional and extremely unusual hardship.” Id. at 63–64.
2 More generally, however, our jurisdiction to review the BIA’s denial of
3 cancellation of removal on any basis is limited to “constitutional claims or
4 questions of law.” 8 U.S.C. §§ 1252(a)(2)(D), (a)(2)(B)(i); Patel v. Garland, 142 S. Ct.
5 1614, 1622 (2022) (holding that the jurisdictional limitation in § 1252(a)(2)(B)(i)
6 applies to the ultimate determination of whether to grant relief and any
7 underlying judgments relating to that determination). Thus, a hardship
8 determination is a “discretionary judgment” that we lack jurisdiction to review
9 absent a “colorable” constitutional claim or question of law. Barco-Sandoval v.
10 Gonzales, 516 F.3d 35, 39–40 (2d Cir. 2007); De La Vega v. Gonzales, 436 F.3d 141, 145–
11 46 (2d Cir. 2006).
12 A colorable question of law might arise where the agency’s discretionary
13 decision is “argued to be an abuse of discretion because it was made without
14 rational justification or based on a legally erroneous standard,” Barco-Sandoval, 516
15 F.3d at 39, or where the agency has “totally overlooked” evidence or “seriously
16 mischaracterized” facts, Mendez v. Holder, 566 F.3d 316, 323 (2d Cir. 2009). A
17 challenge to the IJ’s assessment of the weight of the evidence or balancing of
18 factors, by contrast, will not raise a question of law that we can review. See
4 1 Argueta v. Holder, 617 F.3d 109, 113 (2d Cir. 2010); Xiao Ji Chen v. U.S. Dep’t of Just.,
2 471 F.3d 315, 330–32, 342 (2d Cir. 2006).
3 We conclude that Figueroa has failed to identify a colorable question of law
4 arising from the agency’s discretionary decision to deny cancellation of removal.
5 The BIA reviewed Figueroa’s testimony that his wife had earned a degree in voice
6 performance and wanted to pursue a career in musical performance in the United
7 States. The BIA concluded, however, that her difficulty pursuing such a career in
8 Mexico did not rise to the level of “exceptional and extremely unusual hardship”
9 that is “substantially different from, or beyond, that which would normally be
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21-6216 Figueroa v. Garland BIA O’Sullivan, IJ A214 700 882
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.
1 At a stated term of the United States Court of Appeals for the Second 2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 3 Square, in the City of New York, on the 18th day of September, two thousand 4 twenty-three. 5 6 PRESENT: 7 REENA RAGGI, 8 RAYMOND J. LOHIER, JR., 9 SUSAN L. CARNEY, 10 Circuit Judges. 11 _____________________________________ 12 13 METODIO GUZMAN FIGUEROA, 14 Petitioner, 15 16 v. 21-6216 17 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 1 FOR PETITIONER: Erin O’Neil-Baker, O’Neil Baker Law, LLC, 2 Hartford, CT 3 4 FOR RESPONDENT: Brian Boynton, Principal Assistant Attorney 5 General, Civil Division; Justin R. Markel, 6 Senior Litigation Counsel; Brooke M. Maurer, 7 Trial Attorney, Office of Immigration 8 Litigation, United States Department of 9 Justice, Washington, DC
10 UPON DUE CONSIDERATION of this petition for review of a Board of
11 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND
12 DECREED that the petition for review is DISMISSED.
13 Petitioner Metodio Guzman Figueroa, a native and citizen of Mexico, seeks
14 review of a March 25, 2021 decision of the BIA denying his application for
15 cancellation of removal. In re Metodio Guzman Figueroa, No. A 214 700 882 (B.I.A.
16 Mar. 25, 2021), rev’g No. A 214 700 882 (Immig. Ct. Boston May 28, 2020). 1 In
17 particular, Figueroa challenges the BIA’s decision reversing the determination of
18 an Immigration Judge granting his application for would cause his wife, a United
1 The United States Court of Appeals for the First Circuit is the proper venue for this case because proceedings were completed in Boston. See 8 U.S.C. § 1252(b)(2). We have retained Figueroa’s case, however, “in the interest of justice,” Sarr v. Garland, 50 F.4th 326, 333–34 (2d Cir. 2022), because the proceedings before us have been extensive and because the parties have not challenged venue, see Moreno-Bravo v. Gonzalez, 463 F.3d 253, 262 (2d Cir. 2006) (8 U.S.C. § 1252(b)(2) “is a venue provision, not a jurisdictional one. We therefore are not compelled to dismiss or transfer the petition, and in the circumstances here presented, we decline to do so.”). 2 1 States citizen, “exceptional and extremely unusual hardship.” See In re Metodio
2 Guzman Figueroa, No. A 214 700 882 (B.I.A. Mar. 25, 2021). We assume the parties’
3 familiarity with the underlying facts and the record of prior proceedings, to which
4 we refer only as necessary to explain our decision to dismiss.
5 We review the BIA’s decision as the final agency determination. See Chen
6 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). To be eligible for cancellation of
7 removal, Figueroa had the burden of establishing that his removal would cause
8 his wife, a United States citizen, “exceptional and extremely unusual hardship.”
9 8 U.S.C. §§ 1229a(c)(4)(A)(i) (placing burden on applicant for relief), 1229b(b)(1)(D)
10 (hardship requirement). To meet this standard, Figueroa was required to
11 “establish that his qualifying relative[] would suffer hardship that is substantially
12 different from, or beyond, that which would normally be expected from the
13 deportation of an alien with close family members here.” In re Monreal-Aguinaga,
14 23 I. & N. Dec. 56, 65 (B.I.A. 2001). The agency considers hardship factors in the
15 aggregate, including “the ages, health, and circumstances of qualifying . . .
16 relatives.” Id. at 63. “A lower standard of living or adverse country conditions
17 in the country of return are factors to consider only insofar as they may affect a
18 qualifying relative, but generally will be insufficient in themselves to support a
3 1 finding of exceptional and extremely unusual hardship.” Id. at 63–64.
2 More generally, however, our jurisdiction to review the BIA’s denial of
3 cancellation of removal on any basis is limited to “constitutional claims or
4 questions of law.” 8 U.S.C. §§ 1252(a)(2)(D), (a)(2)(B)(i); Patel v. Garland, 142 S. Ct.
5 1614, 1622 (2022) (holding that the jurisdictional limitation in § 1252(a)(2)(B)(i)
6 applies to the ultimate determination of whether to grant relief and any
7 underlying judgments relating to that determination). Thus, a hardship
8 determination is a “discretionary judgment” that we lack jurisdiction to review
9 absent a “colorable” constitutional claim or question of law. Barco-Sandoval v.
10 Gonzales, 516 F.3d 35, 39–40 (2d Cir. 2007); De La Vega v. Gonzales, 436 F.3d 141, 145–
11 46 (2d Cir. 2006).
12 A colorable question of law might arise where the agency’s discretionary
13 decision is “argued to be an abuse of discretion because it was made without
14 rational justification or based on a legally erroneous standard,” Barco-Sandoval, 516
15 F.3d at 39, or where the agency has “totally overlooked” evidence or “seriously
16 mischaracterized” facts, Mendez v. Holder, 566 F.3d 316, 323 (2d Cir. 2009). A
17 challenge to the IJ’s assessment of the weight of the evidence or balancing of
18 factors, by contrast, will not raise a question of law that we can review. See
4 1 Argueta v. Holder, 617 F.3d 109, 113 (2d Cir. 2010); Xiao Ji Chen v. U.S. Dep’t of Just.,
2 471 F.3d 315, 330–32, 342 (2d Cir. 2006).
3 We conclude that Figueroa has failed to identify a colorable question of law
4 arising from the agency’s discretionary decision to deny cancellation of removal.
5 The BIA reviewed Figueroa’s testimony that his wife had earned a degree in voice
6 performance and wanted to pursue a career in musical performance in the United
7 States. The BIA concluded, however, that her difficulty pursuing such a career in
8 Mexico did not rise to the level of “exceptional and extremely unusual hardship”
9 that is “substantially different from, or beyond, that which would normally be
10 expected from the deportation of an alien with close family members here.” In re
11 Monreal-Aguinaga, 23 I. & N. Dec. at 65. In making its determination, the BIA
12 applied the correct standard, namely, that difficulty finding employment in a
13 “trade or profession . . . is not sufficient to justify a grant of relief in the absence of
14 other substantial equities,” especially where, as here, “[t]he additional factors
15 needed to combine with economic detriment . . . are missing.” In re Pilch, 21 I. &
16 N. Dec. 627, 631 (B.I.A. 1996); see In re Andazola-Rivas, 23 I. & N. Dec. 319, 323 (B.I.A.
17 2002) (“[I]t has long been settled that economic detriment alone is insufficient to
18 support even a finding of extreme hardship.”).
5 1 Figueroa also argued that he was entitled to cancellation of removal
2 because, if forced to move to Mexico, he and his wife would have to live in his
3 father’s small home. But “it has long been settled that economic detriment alone
4 is insufficient” to support a finding of the requisite hardship. In re Andazola-Rivas,
5 23 I. & N. Dec. 319, 323 (B.I.A. 2002).
6 Finally, in determining that Figueroa was ineligible for cancellation of
7 removal, the BIA also considered a number of other relevant factors, including
8 country conditions in Mexico, the limited Spanish language skills of Figueroa’s
9 wife (including her ability to communicate with Figueroa even though he testified
10 he speaks only “a little” English), the fact that she attended therapy following
11 Figueroa’s detention, and her age and ability to work. Citing applicable
12 authority, the BIA concluded that the cumulative harm alleged did not rise to the
13 level of “exceptional and extremely unusual hardship.” See In re Andazola-Rivas,
14 23 I. & N. Dec. at 324 (finding that an unmarried mother’s difficulty finding work
15 would not cause her accompanying children hardship because she was young and
16 able to work).
17 Focusing on the BIA’s consideration of country conditions in Mexico,
18 Figueroa argues that the BIA minimized the danger his wife will face on account
6 1 of crime in Mexico. Such an argument poses a challenge to the weight that the
2 agency accorded to evidence of general country conditions in Mexico and does not
3 raise a reviewable question of law. See Barco–Sandoval, 516 F.3d at 39 (“[W]e
4 remain deprived of jurisdiction to review decisions under the INA when the
5 petition for review essentially disputes the correctness of an IJ’s fact-finding.”).
6 In sum, under the circumstances of this case, the BIA’s conclusion that the
7 aggregate hardships faced by Figueroa’s wife should she move to Mexico would
8 not pose a “exceptional and extremely unusual hardship” does not raise a question
9 of law that we have jurisdiction to review.
10 For the foregoing reasons, the petition for review is DISMISSED. All
11 pending motions and applications are DENIED and stays VACATED.
12 FOR THE COURT: 13 14 Catherine O’Hagan Wolfe, 15 Clerk of Court