Porres v. Holder

492 F. App'x 179

• Court: Court of Appeals for the Second Circuit
• Decided: August 17, 2012
• Docket: 11-4754
• Status: Unpublished

Opinion

SUMMARY ORDER

Juan Carlos Porres and Brenda Lissette Rodriguez De Porres, natives and citizens of Guatemala, seek review of a September 29, 2011, decision of the BIA affirming the July 1, 2010 decision of Immigration Judge (“IJ”) Michael W. Straus denying their applications for cancellation of removal and denying Mr. Porres’s application for withholding of removal. In re Juan Carlos Porres, Brenda Lissette Rodriguez De Porres, Nos. A087 643 113/114 (B.I.A. Sept. 29, 2011) (“BIA Decision”), aff'g No. A087 643 113/114 (Immig. Ct. Hartford July 1, 2010). We assume the parties’ familiarity with the underlying facts and procedural history of this case.

We lack jurisdiction to review “any judgment regarding the granting of relief under” § 240A of the Immigration and Nationality Act, including the agency’s determination that the petitioners failed to establish the requisite hardship. 8 U.S.C. § 1252(a)(2)(B)(i). We retain jurisdiction to review constitutional claims or questions of law raised in a petition for review, and review those claims de novo. See Wellington v. Holder, 623 F.3d 115, 118 (2d Cir.2010) (per curiam).

Petitioners argue that the agency “overlooked and mischaracterized evidence” when it concluded that they failed to establish that their U.S.-citizen children would suffer an “exceptional and extremely unusual hardship” warranting cancellation of removal. See 8 U.S.C. § 1229(b)(1). Specifically, Petitioners argue that the agency overlooked the drastic change in economic circumstances their family would suffer, the educational opportunities and quality health care their children would lose, and the dangerous conditions they would face in Guatemala. Petitioners have not shown, however, that the agency “totally overlooked” or “seriously mischaracterized” any facts related to conditions in Guatemala. See Mendez v. Holder, 566 F.3d 316, 323 (2d Cir.2009) (per curiam) (emphasis added). The BIA acknowledged that Petitioners’ U.S.-citizen children would experience financial hardship, diminished educational opportunities, and other difficulties adapting to a new culture in Guatemala, but concluded that “these hardships are typical of those experienced when a qualifying relative is removed from the United States.” BIA Decision at 2. Rather than raising constitutional claims or questions of law, Petitioners’ arguments amount to “essentially a quarrel about fact-finding or the exercise of discretion” by the agency. Barco-Sandoval v. Gonzales, 516 F.3d 35, 39 (2d Cir.2008). Accordingly, this Court lacks jurisdiction to review the agency’s discretionary hardship determination.

Petitioners also argue that the agency erred in denying Mr. Porres’s application for withholding of removal because it failed to define correctly their particular social group. Because Petitioners failed to raise this issue in their brief to the BIA, we decline to consider it. Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119-20 (2d Cir.2007).

For the foregoing reasons, the petition for review is DISMISSED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DENIED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).