Blanco Robles v. Barr ( 2020 )

18‐3799
Blanco Robles v. Barr
BIA
Straus, IJ
A094 777 026
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 11th day of March, two thousand
twenty.
PRESENT:
PIERRE N. LEVAL,
PETER W. HALL,
GERARD E. LYNCH,
Circuit Judges.
_____________________________________
NELSON BLANCO ROBLES, AKA
NELSON BLANCO,
Petitioner,
v. 18‐3799
WILLIAM P. BARR, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Jon E. Jessen, Stamford, CT.
FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney General;
Anthony C. Payne, Assistant Director;
Jennifer A. Bowen, Trial Attorney, Office of
Immigration Litigation, United States
Department of Justice, Civil Division,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a Board of
Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND
DECREED that the petition for review is DISMISSED.
Petitioner Nelson Blanco Robles, a native and citizen of Honduras, seeks
review of a November 27, 2018, decision of the BIA affirming a May 22, 2017,
decision of an Immigration Judge (“IJ”) denying his application for cancellation of
removal. In re Nelson Blanco Robles, No. A094 777 026 (BIA Nov. 27, 2018), aff’g
No. A094 777 026 (Immig. Ct. Hartford May 22, 2017). We assume the parties’
familiarity with the underlying facts and procedural history in this case.
We have considered 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). Our jurisdiction to review the agency’s denial of cancellation of removal,
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including its hardship determination, is limited to constitutional claims and
questions of law, which we review de novo. See 8 U.S.C. § 1252(a)(2)(B)(i), (D);
Barco‐Sandoval v. Gonzales, 516 F.3d 35, 36 (2d Cir. 2008); Pierre v. Holder, 588 F.3d
767, 772 (2d Cir. 2009). When assessing jurisdiction, we “study 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 ‘constitutional claim’ or ‘question of
law,’ in which case the court could exercise jurisdiction to review those particular
issues.” Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d Cir. 2006); see also
Emokah v. Mukasey, 523 F.3d 110, 119 (2d Cir. 2008). A question of law arises when
the agency overlooks or mischaracterizes evidence or applies the wrong legal
standard. See Mendez v. Holder, 566 F.3d 316, 322‐23 (2d Cir. 2009); Barco‐Sandoval,
516 F.3d at 39–40. Blanco Robles does not raise a “colorable” constitutional claim
or question of law as required to invoke our jurisdiction. Barco‐Sandoval, 516 F.3d
at 36.
A nonpermanent resident, such as Blanco Robles, may be eligible for
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cancellation of removal if he (1) “has been physically present in the United States
for a continuous period of not less than 10 years,” (2) “has been a person of good
moral character during” those years, (3) has not been convicted of certain offenses,
and (4) demonstrates that his “removal would result in exceptional and extremely
unusual hardship” to his United States citizen or lawful permanent resident
spouse, parent, or child. 8 U.S.C. § 1229b(b)(1). The agency denied relief solely
on Blanco Robles’s failure to show that his removal would cause the requisite
hardship to his son, who was 19 years old at the time of the BIA’s decision.
Hardship is a high standard that requires a showing that the “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 (BIA 2001); see also In re
Andazola‐Rivas, 23 I. & N. Dec. 319, 321 (BIA 2002). The agency considers, among
other evidence, “the ages, health, and circumstances of qualifying lawful
permanent resident and United States citizen relatives,” including how a lower
standard of living, diminished educational opportunities, or adverse country
conditions in the country of removal might affect the relatives. In re Monreal‐
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Aguinaga, 23 I. & N. Dec. at 63; In re Andazola‐Rivas, 23 I. & N. Dec. at 323; see also
In re Gonzalez Recinas, 23 I. & N. Dec. 467, 468 (BIA 2002).
Blanco Robles broadly argues that the agency misapplied its hardship
standards and precedent as articulated in In re Monreal‐Aguinaga, In re Gonzalez
Recinas, and In re Andazola‐Rivas. The IJ and BIA, however, correctly applied
agency precedent bearing on hardship when it stated that cancellation is available
in only compelling cases. See In re Andazola‐Rivas, 23 I. & N. Dec. at 322 (noting
that exceptional and extremely unusual hardship is a “very high standard”).
Blanco Robles’s complaint that the agency’s determination is “narrow” ultimately
concerns the agency’s balancing of factors, review of which is beyond our
jurisdiction. See Xiao Ji Chen, 471 F.3d at 332.
Blanco Robles also argues that the agency failed to consider the evidence
and testimony from his prior February 2012 hearing, the country conditions
evidence, the financial difficulties his son Jonathan will experience upon Blanco
Robles’s removal, and the impact his removal will have on Jonathan if Blanco
Robles resumes drinking after he is removed.
First, as the Government argues, Blanco Robles failed to exhaust his claim
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that the IJ overlooked the evidence and testimony presented at his February 2012
hearing. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 123 (2d Cir. 2007)
(noting that “issues not raised to the BIA will not [usually] be examined by” this
Court). Regardless, the IJ acknowledged the “findings from the last hearing” in
his May 2017 decision. Blanco Robles also failed to exhaust his argument that the
agency overlooked the fact that Jonathan will “no doubt” be affected if Blanco
Robles were to start drinking again in Honduras. Moreover, he has identified no
specific impact, and the BIA considered that Jonathan’s behavior could worsen
upon Blanco Robles’s removal. As to country conditions, Blanco Robles testified
that Jonathan would not accompany him to Honduras, and the IJ explicitly noted
that it had reviewed the 2016 State Department Report for Honduras that Blanco
Robles submitted. Finally, the IJ and BIA considered that Jonathan would
experience economic difficulties upon Blanco Robles’s removal but found that
these financial struggles, even combined with other factors, did not rise to the level
of “exceptional and extremely unusual” hardship for cancellation.
The agency’s decision, absent any legal error such as overlooking material
evidence or facts, is therefore a discretionary determination that we cannot review.
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See Mendez, 566 F.3d at 322‐23. To the extent that Blanco Robles argues that the
agency put too little weight on certain evidence, the weight the agency gives to the
evidence and its balancing of factors is beyond our jurisdiction. See Barco‐
Sandoval, 516 F.3d at 42. The agency did not ignore material facts or commit legal
error in denying cancellation, and Blanco Robles’s arguments are “quarrels over
the [exercise of discretion and the] correctness of the factual findings,” over which
we lack jurisdiction. Emokah, 523 F.3d at 119.
For the foregoing reasons, the petition for review is DISMISSED.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
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