Lliguichuzhca Paguay v. Garland ( 2022 )

21-6508
Lliguichuzhca Paguay 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
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Procedure 32.1 and this court’s Local Rule 32.1.1. When citing a summary order in a
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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 9th day of December, two thousand twenty-two.
PRESENT: Denny Chin,
Steven J. Menashi,
Beth Robinson,
Circuit Judges.
____________________________________________
SEGUNDO JAIME LLIGUICHUZHCA PAGUAY,
Petitioner,
v. No. 21-6508
MERRICK B. GARLAND,
UNITED STATES ATTORNEY GENERAL,
Respondent.
____________________________________________
For Petitioner: Nicholas J. Mundy, Brooklyn, NY.
For Respondent: Brian Boynton, Principal Deputy Assistant
Attorney General, Civil Division, Jessica A.
Dawgert, Senior Litigation Counsel, Jeffrey
M. Hartman, Trial 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.
Petitioner Segundo Jaime Lliguichuzhca Paguay, a citizen of Ecuador, seeks
review of a decision of the BIA entered August 31, 2021, which summarily
affirmed the decision of an Immigration Judge (“IJ”), entered August 22, 2018, that
denied his application for cancellation of removal. In re Segundo Jaime Lliguichuzhca
Paguay, No. A088 630 774 (B.I.A. Aug. 31, 2021), aff’g No. 088 630 774 (Immigr. Ct.
N.Y. City Aug. 22, 2018). We assume the parties’ familiarity with the underlying
facts and procedural history.
Because the BIA affirmed the IJ’s decision without opinion, we have
reviewed the IJ’s decision as the final agency determination. See Kambolli v.
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Gonzales, 449 F.3d 454, 456 (2d Cir. 2006). For “an alien who is inadmissible or
deportable from the United States” such as Paguay, the agency may cancel
removal when—in addition to meeting other statutory requirements—the alien
“establishes 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).
Here, Paguay’s son is a U.S. citizen and his parents are lawful permanent residents.
Our jurisdiction to review the denial of cancellation on hardship grounds is
limited to constitutional claims and questions of law. See id. § 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.”). Accordingly,
“we have jurisdiction to review claims that ‘the agency applied an erroneous legal
standard in making a discretionary determination.’” Barco-Sandoval v. Gonzales,
516 F.3d 35, 41 n.6 (2d Cir. 2007) (quoting Khan v. Gonzales, 495 F.3d 31, 35 (2d Cir.
2007)). We have also said that when “some facts important to the subtle
determination of ‘exceptional and extremely unusual hardship’ have been totally
overlooked and others have been seriously mischaracterized,” we may “conclude
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that an error of law has occurred.” Mendez v. Holder, 566 F.3d 316, 323 (2d Cir.
2009). In this case, we dismiss the petition because Paguay’s argument that the IJ
denied him due process by totally overlooking and seriously mischaracterizing
evidence is meritless.
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.
In denying cancellation of removal, the IJ considered the health issues of
Paguay’s parents and son, his parents’ frequent travel to Ecuador, Paguay’s
reduced earning capacity, the psychological impact of Paguay’s removal on his
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son, and the fact that Paguay has three brothers in the United States who could
help support his parents and take his mother to her medical appointments.
Considering these factors, the IJ concluded that Paguay did not establish that his
qualifying relatives would suffer “exceptional and extremely unusual hardship.”
8 U.S.C. § 1229b(b)(1)(D).
Paguay argues that the IJ mischaracterized the time his parents spend in
Ecuador and his mother’s eye surgery, but he does not dispute that his parents
have spent considerable time in Ecuador or that his mother was able to have
surgery there. And he does not explain why his brothers could not help support
his parents, including helping finance visits to Ecuador, or why Paguay could not
find work in Ecuador that would allow him to help.
Paguay also argues that the IJ overlooked his son’s unfamiliarity with the
Spanish language, Paguay’s difficulty attaining legal status through one of his
siblings, certain of his mother’s health conditions, and the fact that many of his
family members live in the United States. However, the IJ listed most of Paguay’s
mother’s health issues and noted he has three brothers living in the United States.
In any event, an IJ is not required to “expressly parse or refute on the record each
individual argument or piece of evidence offered,” Jian Hui Shao v. Mukasey, 546
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F.3d 138, 169 (2d Cir. 2008), 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 v. U.S. Dep’t of Justice, 471 F.3d 315, 336 n.17. (2d Cir. 2006). The record
here contains no such suggestion.
Although Paguay presents his arguments as questions of law and due
process claims, he essentially challenges the IJ’s factfinding, the weight the IJ gave
the evidence, and the balancing of factors, all of which we lack jurisdiction to
review. See Patel, 142 S. Ct. at 1618; Argueta v. Holder, 617 F.3d 109, 113 (2d Cir.
2010). “[R]egardless of the rhetoric employed in the petition,” we must dismiss a
petition that “merely quarrels over the correctness of the factual findings or
justification for the discretionary choices” of the agency, as Paguay’s petition does
here. Xiao Ji Chen, 471 F.3d at 329.
For the foregoing reasons, the petition for review is DISMISSED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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