Pastor Salas v. Garland ( 2023 )

21-6562
Pastor Salas 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 17th day of January, two thousand twenty-three.
PRESENT: Amalya L. Kearse,
Rosemary S. Pooler,
Steven J. Menashi,
Circuit Judges.
____________________________________________
FERNANDO PASTOR SALAS, VERONICA
MARIA MARTINEZ CASTILLERO,
Petitioners,
v. No. 21-6562
MERRICK B. GARLAND, UNITED STATES
ATTORNEY GENERAL,
Respondent.
____________________________________________
For Petitioners: Thomas V. Massucci, New York, NY.
For Respondent: Brian M. Boynton, Principal Deputy
Assistant Attorney General, Civil Division,
Jonathan A. Robbins, Assistant Director,
Regina Byrd, Attorney, Office of
Immigration Litigation, 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.
Petitioners Fernando Pastor Salas and Veronica Maria Martinez Castillero,
citizens of Mexico, seek review of a decision of the BIA entered September 27, 2021,
which affirmed the decision of an Immigration Judge (“IJ”), entered October 24,
2018, that denied their applications for cancellation of removal. In re Fernando
Pastor Salas, Veronica Maria Martinez Castillero, Nos. A206 223 869/202 040 576
(B.I.A. Sept. 27, 2021), aff’g Nos. A206 223 869, 202 040 576 (Immig. Ct. N.Y. City
Oct. 24, 2018). We assume the parties’ familiarity with the underlying facts and
procedural history.
We have reviewed both the IJ’s and the BIA’s decisions “for the sake of
completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.
2006). As an initial matter, the government argues that the petitioners failed to
exhaust any of the issues they raise here. We conclude that, for the most part, the
petitioners exhausted the issues by raising the same issues, albeit more generally
in their brief to the BIA. See Gill v. INS, 420 F.3d 82, 86 (2d Cir. 2005) (“[W]e have
never held that a petitioner is limited to the exact contours of his argument
below.”). To be sure, the petitioners did not exhaust their claim that the IJ
misstated the record as to whether their children would relocate to Mexico. But
2
even if they had exhausted it, they have not raised a colorable question of law with
respect to that claim in any event, as discussed below.
For “alien[s] who [are] inadmissible or deportable from the United States”
such as the petitioners, the agency may cancel removal when—in addition to
meeting other statutory requirements—the aliens “establish[] that removal would
result in exceptional and extremely unusual hardship to the alien’s 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). Hardship is a “very high
standard.” In re Andazola-Rivas, 23 I. & N. Dec. 319, 322 (B.I.A. 2002). To meet it, an
applicant for cancellation of removal must establish that “qualifying relatives
would suffer hardship that is substantially different from, or beyond, that which
would normally be expected from the deportation of an alien with close family
members.” In re Monreal-Aguinaga, 23 I. & N. Dec. 56, 65 (B.I.A. 2001). The agency
considers “the ages, health, and circumstances of qualifying lawful permanent
resident and United States citizen relatives.” Id. at 63. “A lower standard of living
or adverse country conditions in the country of return are factors to consider only
insofar as they may affect a qualifying relative, but generally will be insufficient in
themselves to support a finding of exceptional and extremely unusual hardship.”
Id. at 63-64.
Our jurisdiction to review the 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. See 8 U.S.C. § 1252(a)(2)(B)(i), (D); Patel
v. Garland, 142 S. Ct. 1614, 1618 (2022) (“With an exception for legal and
constitutional questions, Congress has barred judicial review of the Attorney
General’s decisions denying discretionary relief from removal.”).
We dismiss the petition because the petitioners fail to raise a colorable
question of law. We have said that a question of law may arise when “some facts
important to the subtle determination of ‘exceptional and extremely unusual
hardship’ have been totally overlooked and others have been seriously
3
mischaracterized.” Mendez v. Holder, 566 F.3d 316, 323 (2d Cir. 2009). But such a
question does not arise when the applicant “merely quarrels over the correctness
of the factual findings or justification for the discretionary choices.” Xiao Ji Chen v.
U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d Cir. 2006). The agency “does not commit
an ‘error of law’ every time an item of evidence is not explicitly considered or is
described with imperfect accuracy,” Mendez, 566 F.3d at 323, and “we presume
that an IJ has taken into account all of the evidence before him, unless the record
compellingly suggests otherwise,” Xiao Ji Chen, 471 F.3d at 336 n.17.
The petitioners assert that the IJ mischaracterized how often one of their
children received speech therapy, ignored or mischaracterized evidence of that
child’s performance in school, misstated that their children would not relocate to
Mexico, and failed to consider evidence of diminished educational and financial
opportunities and physical safety in Mexico. These arguments do not raise
colorable questions of law. The IJ stated that she had considered all the evidence,
and review of the record does not compel a contrary conclusion. See Xiao Ji Chen,
471 F.3d at 336 n.7. The agency acknowledged that the child received speech
therapy and that the therapy continued the next year, and the IJ’s conclusion that
the child’s school performance was average did not “seriously mischaracterize”
the record, given evidence of poor performance in some areas and average or good
performance in others. See Mendez, 566 F.3d at 323; see Xiao Ji Chen, 471 F.3d at 336
n.7 (noting that the IJ must consider “significant factual assertions” but need not
“expressly parse or refute on the record” each piece of evidence) (emphasis
omitted).
The record reflects some ambiguity about whether the children will relocate
but, regardless, the petitioners do not articulate any error of law in the BIA’s
conclusion that “the hardship the respondents’ removal would create is not
disproportionate to that which would normally be expected to occur in such
circumstances.” Certified Admin. R. 4; see Matter of J-J-G-, 27 I. & N. Dec. 808, 812-
13 (B.I.A. 2020) (“[I]t is well settled that evidence that a qualifying relative will
experience a ‘lower standard of living’ in the country of removal ... ‘will be
4
insufficient in itself to support a finding of exceptional and extremely unusual
hardship.’”) (alteration omitted) (quoting Monreal-Aguinaga, 23 I. & N. Dec. at 63-
64).
For the foregoing reasons, the petition for review is DISMISSED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
5