Mendez-Fuentes v. Wilkinson ( 2021 )

18-3563
Mendez-Fuentes v. Wilkinson
BIA
A029 179 993
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 8th day of February, two thousand twenty-one.
5
6 PRESENT:
7 DENNIS JACOBS,
8 ROSEMARY S. POOLER,
9 STEVEN J. MENASHI,
10 Circuit Judges.
11 _____________________________________
12
13 JOSE MENDEZ-FUENTES,
14 Petitioner,
15
16 v. 18-3563
17 NAC
18 ROBERT M. WILKINSON, ACTING
19 UNITED STATES ATTORNEY GENERAL,
20 Respondent. 1
21 _____________________________________
22
23
24 FOR PETITIONER: Perham Makabi, Kew Gardens, NY.
25
1Pursuant to Fed. R. App. P. 43(c)(2), Robert M. Wilkinson
is automatically substituted for former Attorney General
William P. Barr.
1 FOR RESPONDENT: Janice K. Redfern, Senior
2 Litigation Counsel (Jeffrey
3 Bossert Clark, Acting Assistant
4 Attorney General, Linda S.
5 Wernery, Assistant Director,
6 Office of Immigration Litigation),
7 for Robert M. Wilkinson, Acting
8 United States Attorney General,
9 United States Department of
10 Justice, Washington, DC.
11 UPON DUE CONSIDERATION of this petition for review of a
12 Board of Immigration Appeals (“BIA”) decision, it is hereby
13 ORDERED, ADJUDGED, AND DECREED that the petition for review
14 is DISMISSED.
15 Petitioner Jose Mendez-Fuentes, a native and citizen of
16 El Salvador, seeks review of an October 30, 2018 decision of
17 the BIA denying his motion to reopen his removal proceedings.
18 In re Jose Mendez-Fuentes, No. A029 179 993 (B.I.A. Oct. 30,
19 2018). We assume the parties’ familiarity with the underlying
20 facts and procedural history.
21 Mendez-Fuentes moved to reopen related to his statutory
22 eligibility for special rule cancellation of removal under
23 the Nicaraguan and Central American Relief Act (“NACARA”),
24 which gives the agency discretion to cancel the removal of
25 undocumented immigrants from certain countries if they
26 satisfy physical presence, moral character, and hardship
2
1 requirements. 8 C.F.R. § 1240.66. We review a denial of a
2 motion to reopen for abuse of discretion. See Ali v. Gonzales,
3 448 F.3d 515, 517 (2d Cir. 2006). Our jurisdiction is limited
4 to consideration of constitutional claims and questions of
5 law as we are statutorily divested of authority to review
6 discretionary determinations concerning cancellation of
7 removal. See 8 U.S.C. § 1252(a)(2)(B), (D); Argueta v.
8 Holder, 617 F.3d 109, 111–12 (2d Cir. 2010); Sepulveda v.
9 Gonzales, 407 F.3d 59, 64 (2d Cir. 2005) (discussing
10 jurisdictional limitation in Section 1252(a)(2)(B) as applied
11 to motions to reopen and for reconsideration); Durant v. INS,
12 393 F.3d 113, 115 (2d Cir. 2004) (holding that jurisdictional
13 limitation in Section 1252(a)(2)(C) applies equally to denial
14 of motion to reopen because otherwise motion “would provide
15 an improper backdoor method of challenging a removal order”).
16 We dismiss the petition because Mendez-Fuentes has not raised
17 a colorable constitutional claim or question of law. See
18 Barco-Sandoval v. Gonzales, 516 F.3d 35, 40 (2d Cir. 2008).
19 The BIA did not err in skipping over Mendez-Fuentes’s
20 statutory eligibility for NACARA cancellation and determining
21 instead that such relief was not warranted as a matter of
3
1 discretion. INS v. Abudu, 485 U.S. 94, 104–05 (1988). Mendez-
2 Fuentes does not identify legal error in the BIA’s exercise
3 of discretion. He first argues that BIA erred in finding that
4 he failed to present any evidence to show that he had no
5 criminal history after 2011; however, the BIA explicitly
6 cited the evidence he presented regarding his 2011 release
7 and determined that it did not corroborate an absence of any
8 criminal history thereafter. Mendez-Fuentes’s challenge to
9 the BIA’s characterization of that evidence does not state a
10 question of law. See Mendez v. Holder, 566 F.3d 316, 323 (2d
11 Cir. 2009) (explaining that question of law may arise if agency
12 “totally overlook[s]” or “seriously mischaracterize[s]”
13 evidence but an agency “does not commit an error of law every
14 time an item of evidence is not explicitly considered or is
15 described with imperfect accuracy”)(internal quotation marks
16 omitted). To the extent Mendez-Fuentes contends that the BIA
17 was required to credit claims in his affidavit regarding his
18 rehabilitation, the severity of his medical conditions, and
19 his payment of taxes, he again does not raise a colorable
20 question of law as a “quarrel over the correctness of the
21 factual findings or justification for the discretionary
4
1 choices made by the agency [is] a quarrel that we lack
2 jurisdiction to review.” Barco-Sandoval, 516 F.3d at 42.
3 For the foregoing reasons, the petition for review is
4 DISMISSED.
5 FOR THE COURT:
6 Catherine O’Hagan Wolfe,
7 Clerk of Court
5