Barros v. Barr ( 2020 )

18-3101 (L)
Barros v. Barr
BIA
Kolbe, IJ
A089 175 426/088 619 331
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 TO 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
23rd day of January, two thousand twenty.
PRESENT:
REENA RAGGI,
DEBRA ANN LIVINGSTON,
WILLIAM J. NARDINI,
Circuit Judges.
_____________________________________
JOSE ALBERTO BARROS, AKA JOSE
BARROS ESCANDON, NANCY LEONOR
TENESACA PACHO,
Petitioners,
v. 18-3101 (L),
18-3119 (Con)
WILLIAM P. BARR, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONERS: Cory Forman, Cohen Forman Barone,
LLP, New York, NY.
FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney
General; Cindy S. Ferrier, Assistant
Director; Micah S. Engler, 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 (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petitions for review are
DISMISSED.
Petitioners Jose Alberto Barros and Nancy Leonor Tenesaca
Pacho, natives and citizens of Ecuador, seek review of a BIA
decision affirming without opinion an Immigration Judge’s (“IJ”)
denial of Barros’s and Tenesaca Pacho’s applications for
cancellation of removal under 8 U.S.C. § 1229b(b)(1). In re
Barros & Tenesaca Pacho, Nos. A 089 175 426/088 619 331 (B.I.A.
Sept. 19, 2018), aff’g Nos. A 089 175 426/088 619 331 (Immig. Ct.
N.Y. City Sept. 21, 2017). We assume the parties’ familiarity
with the underlying facts and procedural history in this case.
We review the IJ’s decision as the final agency determination
because the BIA summarily affirmed that decision. See 8 C.F.R.
§ 1003.1(e)(4); Shunfu Li v. Mukasey, 529 F.3d 141, 146 (2d Cir.
2008). We lack jurisdiction to review petitioners’ challenge to
the BIA’s decision not to issue a three-member ruling. See
Kambolli v. Gonzales, 449 F.3d 454, 461–63 (2d Cir. 2006); see
also 8 C.F.R. § 1003.1(e)(6) (setting out circumstances required
for three-member decision). The “streamlining regulations’
provision for summary affirmance of IJ decisions by a single Board
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member does not deprive an asylum applicant of due process.” Yu
Sheng Zhang v. U.S. Dep’t of Justice, 362 F.3d 155, 157 (2d Cir.
2004).
Accordingly, the only issue before us is the IJ’s denial of
cancellation on the ground that Barros and Tenesaca Pacho did not
demonstrate that their U.S.-citizen children would suffer
exceptional and extremely unusual hardship in Ecuador.
Nonpermanent residents, such as Barros and Tenesaca Pacho, may
have their removal cancelled if, among other factors, they
demonstrate that their “removal would result in exceptional and
extremely unusual hardship” to a qualifying relative, here their
U.S.-citizen sons. 8 U.S.C. § 1229b(b)(1)(D). “[T]he hardship
to an alien’s relatives, if the alien is obliged to leave the
United States, must be ‘substantially’ beyond the ordinary
hardship that would be expected when a close family member leaves
this country.” In re Monreal-Aguinaga, 23 I. & N. Dec. 56, 62
(B.I.A. 2001) (quoting H.R. Conf. Rep. No. 104-828, at 213 (1996)).
Because cancellation is discretionary relief, our review is
limited to constitutional claims and questions of law. 8 U.S.C.
§ 1252(a)(2)(B)(i), (D); see also Barco-Sandoval v. Gonzales, 516
F.3d 35, 36 (2d Cir. 2008). To invoke our jurisdiction, such
claims must be “colorable.” Barco-Sandoval, 516 F.3d at 40 (“[W]e
lack jurisdiction to review any legal argument that is so
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insubstantial and frivolous as to be inadequate to invoke federal-
question jurisdiction.”). Accordingly, we must determine whether
an argument “merely quarrels over the correctness of the factual
findings or justification for the discretionary choices, in which
case the court would lack jurisdiction.” Xiao Ji Chen v. U.S.
Dep’t of Justice, 471 F.3d 315, 329 (2d Cir. 2006).
We conclude that Barros and Tenesaca Pacho have not identified
a colorable constitutional claim or question of law regarding the
hardship determination. Although the agency may commit an error
of law if it “totally overlook[s]” or “seriously
mischaracterize[s]” material facts, Mendez v. Holder, 566 F.3d
316, 323 (2d Cir. 2009), that is not this case. The record
reflects that the IJ fairly considered petitioners’ evidence.
In urging otherwise, petitioners argue, first, that the IJ
erred in determining that Tenesaca Pacho’s risk of developing
breast cancer was too speculative to evaluate ensuing hardship to
her children. This argument disputes the IJ’s factual findings,
i.e., how likely it is that an event will occur, which we lack
jurisdiction to review. See Xiao Ji Chen, 471 F.3d at 329; see
also Hui Lin Huang v. Holder, 677 F.3d 130, 134 (2d Cir. 2012)
(explaining that “[a] determination of what will occur in the
future and the degree of likelihood of the occurrence has been
regularly regarded as fact-finding”).
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Second, although petitioners argue that the IJ overlooked
environmental concerns, the IJ is not required to “expressly parse
or refute on the record each individual argument or piece of
evidence,” particularly if the evidence is not material. See Wei
Guang Wang v. BIA, 437 F.3d 270, 275–76 (2d Cir. 2006) (quotation
marks omitted). Petitioners did not show that evidence regarding
a volcano was material as they did not allege that they would live
near the volcano. Nor did the IJ err by not discussing a study
about higher risks of asthma and allergies in countries near the
equator, as such risks do not qualify as exceptional and extremely
unusual hardship. See In re Andazola-Rivas, 23 I. & N. Dec. 319,
320, 322 (B.I.A. 2002) (noting that exceptional and extremely
unusual hardship is a “very high standard”). Furthermore, the IJ
did not err in not explicitly discussing reports of arsenic in the
water in Latin America, as the report did not discuss any studies
in Ecuador.
Third, the IJ did not overlook or mischaracterize evidence
regarding the particular health conditions of petitioners’
children, Justin and Joseph. The IJ did not mischaracterize the
record by stating that Joseph’s heart murmur is expected to resolve
over time because a doctor’s letter stated that the murmur “should
resolve over time” and “[n]o treatment or restrictions are
currently indicated.” Although a nurse practitioner’s letter
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noted that Justin’s eye condition needed monitoring, the IJ did
not mischaracterize the record in stating that an eye infection
was not an issue because Justin was not experiencing eye infections
or receiving treatment at the time of the hearing. See Mendez,
566 F.3d at 323 (“[T]he agency does not commit an ‘error of law’
every time an item of evidence is not explicitly considered or is
described with imperfect accuracy.”). The IJ also did not
mischaracterize the record in stating that Justin’s “eczema has
improved over time” because a medical letter describes his current
treatment as milder than his past treatment.
Fourth, the IJ did not err by not explicitly discussing a
psycho-emotional and family dynamics evaluation prepared for the
removal proceedings by a social worker, as the evaluation was
largely cumulative of Tenesaca Pacho’s testimony and the evaluator
did not interview Justin. The IJ was not required to accept the
social worker’s conclusions that Justin’s relocation outside the
United States would threaten his educational, physical, and
psycho-emotional health. See Y.C. v. Holder, 741 F.3d 324, 332
(2d Cir. 2013) (“We generally defer to the agency’s evaluation of
the weight to be afforded an applicant’s documentary evidence.”).
Moreover, the IJ acknowledged the concerns raised in the report
regarding the lower standard of living, diminished educational
opportunities, and reduced economic conditions that Justin and
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Joseph would face in Ecuador. Although such circumstances are
“factors to consider,” they “generally will be insufficient in
themselves to support a finding of exceptional and extremely
unusual hardship.” Monreal-Aguinaga, 23 I. & N. Dec. at 63–64;
see Xiao Ji Chen, 471 F.3d at 336 n.17 (“[W]e presume that an IJ
has taken into account all of the evidence before h[er], unless
the record compellingly suggests otherwise.”).
Fifth, the IJ did not seriously mischaracterize or overlook
evidence regarding Justin’s learning disability. See Mendez, 566
F.3d at 323. Even if the IJ could have discussed these issues in
more detail, the IJ did not err in stating that Justin has speech
difficulties and receives one hour of speech therapy per week.
See id.
Finally, the record does not support petitioners’ argument
that the IJ failed to consider the totality of factors in assessing
the hardship to petitioners’ children from their parents’ removal
to Ecuador. See In re Gonzalez Recinas, 23 I. & N. Dec. 467, 472
(B.I.A. 2002) (noting that analysis “requires the assessment of
hardship factors in their totality”). As discussed above, the IJ
did not overlook relevant evidence and nothing in the record
indicates that the IJ considered each hardship in isolation,
without ultimately considering cumulative effect. Because the
record does not support petitioners’ claim that the IJ failed to
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analyze the evidence as a whole, petitioners have also failed to
state a due process claim. See Burger v. Gonzales, 498 F.3d 131,
134 (2d Cir. 2007) (“To establish a violation of due process, an
alien must show that she was denied a full and fair opportunity to
present her claims or that the IJ or BIA otherwise deprived her of
fundamental fairness.” (quotation marks omitted)).
Because Barros and Tenesaca Pacho do not raise a colorable
constitutional claim or question of law, we are without
jurisdiction to review their arguments further. See 8 U.S.C.
§§ 1229b(b)(1)(D), 1252(a)(2)(B), (D).
For the foregoing reasons, the petitions for review are
DISMISSED.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
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