17‐2421(L) Rivas Plaza v. Whitaker BIA Vomacka, IJ A205 220 962
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 COURTʹS 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 ʺSUMMARY ORDERʺ). 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 14th day of December, two thousand eighteen.
PRESENT: ROBERT D. SACK, BARRINGTON D. PARKER, DENNY CHIN, Circuit Judges. ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x
ALDO YURY RIVAS PLAZA, Petitioner,
v. 17‐2421(L); 18‐1325 (Con)
MATTHEW G. WHITAKER, Acting United States Attorney General, Respondent.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x
FOR PETITIONER: Perham Makabi, Kew Gardens, New York.
FOR RESPONDENT: Chad A. Readler, Acting Assistant Attorney General; Jeffery R. Leist, Senior Litigation Counsel; Jennifer A. Bowen, 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 (ʺBIAʺ) decision, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the petitions for review are DENIED.
Petitioner Aldo Yury Rivas Plaza, a native and citizen of Ecuador, seeks
review of an August 3, 2017, decision of the BIA affirming an September 30, 2016,
decision of an Immigration Judge (ʺIJʺ) denying Rivas Plazaʹs application for
cancellation of removal. In re Aldo Yury Rivas Plaza, No. A 205 220 962 (B.I.A. Aug. 3,
2017), affʹg No. A 205 220 962 (Immig. Ct. N.Y. City Sept. 30, 2016). Rivas Plaza also
seeks review of an April 25, 2018, decision of the BIA denying his motion to reopen. In
re Aldo Yury Rivas Plaza, No. A 205 220 962 (B.I.A. Apr. 25, 2018). We assume the
partiesʹ familiarity with the underlying facts and procedural history in this case.
An alien, such as Rivas Plaza, may have his removal cancelled if he:
(1) ʺhas been physically present in the United States for a continuous period of not less
than 10 yearsʺ; (2) ʺhas been a person of good moral character duringʺ those years;
(3) has not been convicted of certain offenses; and (4) establishes that his ʺremoval
would result in exceptional and extremely unusual hardshipʺ to his United States‐
citizen spouse, parent, or child. 8 U.S.C. § 1229b(b)(1). Because the BIA relied solely on
‐ 2 ‐
the hardship factor in denying relief here, that is the only issue before us. See Wei Sun v.
Sessions, 883 F.3d 23, 27 (2d Cir. 2018). Our jurisdiction to review the agencyʹs denial of
cancellation of removal based on an applicantʹs failure to satisfy the hardship
requirement is limited to constitutional claims and questions of law. 8 U.S.C.
§ 1252(a)(2)(B), (D); Barco‐Sandoval v. Gonzales, 516 F.3d 35, 39‐40 (2d Cir. 2008). While
final orders of removal and orders denying motions to reopen are treated separately
and require separate petitions for review, when the orders are ʺsufficiently connected,ʺ
a jurisdictional bar that applies to the former will also apply to the latter. Durant v. INS,
393 F.3d 113, 115‐16 (2d Cir. 2004). Here, as the two orders are directly connected, the
jurisdictional bar applies to both petitions.
When assessing jurisdiction, we ʺstudy the arguments asserted . . . to
determine, regardless of the rhetoric employed in the petition, whether it merely
quarrels over the correctness of the factual findings or justification for the discretionary
choices, in which case the court would lack jurisdiction, or whether it instead raises a
ʹconstitutional claimʹ or ʹquestion of law,ʹ in which case the court could exercise
jurisdiction to review those particular issues.ʺ Xiao Ji Chen v. U.S. Depʹt of Justice, 471
F.3d 315, 329 (2d Cir. 2006). For jurisdiction to attach, however, such claims must be
colorable. Barco‐Sandoval, 516 F.3d at 40. We review constitutional claims and questions
of law de novo. Pierre v. Holder, 588 F.3d 767, 772 (2d Cir. 2009).
‐ 3 ‐
We dismiss the petitions because Rivas Plaza has not identified any
colorable question of law. He argues that the BIA failed to adequately address his
motherʹs testimony that her daughters were unable to take care of her and
mischaracterized her testimony as equivocal. Although the agency may commit an
error of law if it ignores or seriously mischaracterizes material facts, see Mendez v.
Holder, 566 F.3d 316, 323 (2d Cir. 2009), or if it applies the wrong legal standard, see Khan
v. Gonzales, 495 F.3d 31, 35 (2d Cir. 2007), as set forth below, the record does not indicate
any such error.
The hardship to an alienʹs relative upon removal ʺmust be ʹsubstantiallyʹ
beyond the ordinary hardship that would be expected when a close family member
leaves this country.ʺ Matter of Monreal‐Aguinaga, 23 I. & N. Dec. 56, 62 (B.I.A. 2001)
(quoting H.R. Conf. Rep. No. 104‐828 (1996)). The agency considers factors such as
ʺage[], health, and circumstancesʺ of the qualifying relative. Id. at 63. Rivas Plaza
testified that he was his motherʹs primary caretaker, and that if he were removed to
Ecuador, his mother would go with him despite an expectation of a lesser standard of
medical care in Ecuador. But Rivas Plaza also testified that his two sisters lived in the
same house as him and his mother, and medical discharge records reflected that his
mother was released into the care of her daughter. In addition, while Rivas Plazaʹs
mother testified that her two adult daughters could not take care of her because they
were married, she later said that one daughter was single with one adult child and was
‐ 4 ‐
unresponsive when asked if she had asked her daughters if they would help. Given the
agencyʹs explicit statements that it had considered Rivas Plazaʹs motherʹs age and
health, and given the evidence that he had adult siblings in the United States who lived
with and could help care for his mother, the agency both considered the relevant factors
and did not ignore or ʺseriously mischaracterize[]ʺ any evidence. Mendez, 566 F.3d at
323.
Rivas Plaza also argues that the BIA abused its discretion by not
explaining why the evidence he provided with his motion to reopen did not
demonstrate that his sisters would be unable to care for his mother if he was removed.
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17‐2421(L) Rivas Plaza v. Whitaker BIA Vomacka, IJ A205 220 962
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 COURTʹS 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 ʺSUMMARY ORDERʺ). 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 14th day of December, two thousand eighteen.
PRESENT: ROBERT D. SACK, BARRINGTON D. PARKER, DENNY CHIN, Circuit Judges. ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x
ALDO YURY RIVAS PLAZA, Petitioner,
v. 17‐2421(L); 18‐1325 (Con)
MATTHEW G. WHITAKER, Acting United States Attorney General, Respondent.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x
FOR PETITIONER: Perham Makabi, Kew Gardens, New York.
FOR RESPONDENT: Chad A. Readler, Acting Assistant Attorney General; Jeffery R. Leist, Senior Litigation Counsel; Jennifer A. Bowen, 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 (ʺBIAʺ) decision, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the petitions for review are DENIED.
Petitioner Aldo Yury Rivas Plaza, a native and citizen of Ecuador, seeks
review of an August 3, 2017, decision of the BIA affirming an September 30, 2016,
decision of an Immigration Judge (ʺIJʺ) denying Rivas Plazaʹs application for
cancellation of removal. In re Aldo Yury Rivas Plaza, No. A 205 220 962 (B.I.A. Aug. 3,
2017), affʹg No. A 205 220 962 (Immig. Ct. N.Y. City Sept. 30, 2016). Rivas Plaza also
seeks review of an April 25, 2018, decision of the BIA denying his motion to reopen. In
re Aldo Yury Rivas Plaza, No. A 205 220 962 (B.I.A. Apr. 25, 2018). We assume the
partiesʹ familiarity with the underlying facts and procedural history in this case.
An alien, such as Rivas Plaza, may have his removal cancelled if he:
(1) ʺhas been physically present in the United States for a continuous period of not less
than 10 yearsʺ; (2) ʺhas been a person of good moral character duringʺ those years;
(3) has not been convicted of certain offenses; and (4) establishes that his ʺremoval
would result in exceptional and extremely unusual hardshipʺ to his United States‐
citizen spouse, parent, or child. 8 U.S.C. § 1229b(b)(1). Because the BIA relied solely on
‐ 2 ‐
the hardship factor in denying relief here, that is the only issue before us. See Wei Sun v.
Sessions, 883 F.3d 23, 27 (2d Cir. 2018). Our jurisdiction to review the agencyʹs denial of
cancellation of removal based on an applicantʹs failure to satisfy the hardship
requirement is limited to constitutional claims and questions of law. 8 U.S.C.
§ 1252(a)(2)(B), (D); Barco‐Sandoval v. Gonzales, 516 F.3d 35, 39‐40 (2d Cir. 2008). While
final orders of removal and orders denying motions to reopen are treated separately
and require separate petitions for review, when the orders are ʺsufficiently connected,ʺ
a jurisdictional bar that applies to the former will also apply to the latter. Durant v. INS,
393 F.3d 113, 115‐16 (2d Cir. 2004). Here, as the two orders are directly connected, the
jurisdictional bar applies to both petitions.
When assessing jurisdiction, we ʺstudy the arguments asserted . . . to
determine, regardless of the rhetoric employed in the petition, whether it merely
quarrels over the correctness of the factual findings or justification for the discretionary
choices, in which case the court would lack jurisdiction, or whether it instead raises a
ʹconstitutional claimʹ or ʹquestion of law,ʹ in which case the court could exercise
jurisdiction to review those particular issues.ʺ Xiao Ji Chen v. U.S. Depʹt of Justice, 471
F.3d 315, 329 (2d Cir. 2006). For jurisdiction to attach, however, such claims must be
colorable. Barco‐Sandoval, 516 F.3d at 40. We review constitutional claims and questions
of law de novo. Pierre v. Holder, 588 F.3d 767, 772 (2d Cir. 2009).
‐ 3 ‐
We dismiss the petitions because Rivas Plaza has not identified any
colorable question of law. He argues that the BIA failed to adequately address his
motherʹs testimony that her daughters were unable to take care of her and
mischaracterized her testimony as equivocal. Although the agency may commit an
error of law if it ignores or seriously mischaracterizes material facts, see Mendez v.
Holder, 566 F.3d 316, 323 (2d Cir. 2009), or if it applies the wrong legal standard, see Khan
v. Gonzales, 495 F.3d 31, 35 (2d Cir. 2007), as set forth below, the record does not indicate
any such error.
The hardship to an alienʹs relative upon removal ʺmust be ʹsubstantiallyʹ
beyond the ordinary hardship that would be expected when a close family member
leaves this country.ʺ Matter of Monreal‐Aguinaga, 23 I. & N. Dec. 56, 62 (B.I.A. 2001)
(quoting H.R. Conf. Rep. No. 104‐828 (1996)). The agency considers factors such as
ʺage[], health, and circumstancesʺ of the qualifying relative. Id. at 63. Rivas Plaza
testified that he was his motherʹs primary caretaker, and that if he were removed to
Ecuador, his mother would go with him despite an expectation of a lesser standard of
medical care in Ecuador. But Rivas Plaza also testified that his two sisters lived in the
same house as him and his mother, and medical discharge records reflected that his
mother was released into the care of her daughter. In addition, while Rivas Plazaʹs
mother testified that her two adult daughters could not take care of her because they
were married, she later said that one daughter was single with one adult child and was
‐ 4 ‐
unresponsive when asked if she had asked her daughters if they would help. Given the
agencyʹs explicit statements that it had considered Rivas Plazaʹs motherʹs age and
health, and given the evidence that he had adult siblings in the United States who lived
with and could help care for his mother, the agency both considered the relevant factors
and did not ignore or ʺseriously mischaracterize[]ʺ any evidence. Mendez, 566 F.3d at
323.
Rivas Plaza also argues that the BIA abused its discretion by not
explaining why the evidence he provided with his motion to reopen did not
demonstrate that his sisters would be unable to care for his mother if he was removed.
As noted above, the jurisdictional limitation on a final order of removal applies equally
to the denial of a motion to reopen that is sufficiently connected to that final order. See
Durant, 393 F.3d at 115‐16. Although Rivas Plaza contends that the BIA did not explain
why his evidence was insufficient, the BIA clarified that the purported reasons why
Rivas Plazaʹs sisters could not care for his mother, i.e., their own financial and medical
hardships, did not demonstrate that they ʺcould not help outʺ or that those issues were
so acute that their mother would suffer hardship upon his removal. Certified Admin.
R. 3. Further, the BIA enumerated the evidence Rivas Plaza submitted in support of
reopening, which included affidavits, tax returns, and medical records (one of which
indicated that his mother lived with her daughter and that his mother had the
assistance of a home health aide for ten hours every day) prior to determining that it
‐ 5 ‐
did not demonstrate Rivas Plazaʹs prima facie eligibility for cancellation. The BIA was
not required to ʺexplicitly consider[]ʺ each item of evidence or even describe it perfectly.
See Mendez, 566 F.3d at 323. Because Rivas Plazaʹs challenge to the BIAʹs denial of
reopening essentially contests the agencyʹs factual determination that the evidence
failed to demonstrate the requisite hardship, it is insufficient to invoke our jurisdiction.
See Barco‐Sandoval, 516 F.3d at 41.
We have considered Rivas Plazaʹs remaining arguments and conclude
they are without merit. For the foregoing reasons, the petitions for review are
DISMISSED.
FOR THE COURT: Catherine OʹHagan Wolfe, Clerk of Court
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