Perez v. Sessions , 686 F. App'x 59 ( 2017 )

15-3197
Perez v. Sessions
BIA
Christensen, IJ
A094 357 311
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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 10th day of April, two thousand seventeen.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 DEBRA ANN LIVINGSTON,
9 DENNY CHIN,
10 Circuit Judges.
11 _____________________________________
12
13 ELDER ISABEL PEREZ,
14 Petitioner,
15
16 v. 15-3197
17 NAC
18 JEFFERSON B. SESSIONS III, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Perham Makabi, Kew Gardens, N.Y.
24
25 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
26 Assistant Attorney General; Shelley
27 R. Goad, Assistant Director; Carmel
28 A. Morgan, Trial Attorney, Office of
29 Immigration Litigation, United
30 States Department of Justice,
31 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review is
4 DISMISSED.
5 Petitioner Elder Isabel Perez, a native and citizen of
6 Honduras, seeks review of a September 11, 2015, decision of the
7 BIA, affirming a May 22, 2014, decision of an Immigration Judge
8 (“IJ”) denying Perez’s motion to reopen. In re Elder Isabel
9 Perez, No. A094 357 311 (B.I.A. Sept. 11, 2015), aff’g No. A094
10 357 311 (Immigr. Ct. N.Y.C. May 22, 2014). We assume the
11 parties’ familiarity with the underlying facts and procedural
12 history in this case.
13 Perez does not dispute that his 2014 motion to reopen was
14 untimely because his order of removal was final in 2006. See
15 8 U.S.C. § 1229a(c)(7)(C)(i) (setting 90-day period for filing
16 motion to reopen); 8 C.F.R. § 1003.23(b)(1) (same). This time
17 limitation may be excused if the motion requests reopening to
18 apply for asylum and “is based on changed country conditions
19 arising in the country of nationality or the country to which
20 removal has been ordered, if such evidence is material and was
21 not available and would not have been discovered or presented
22 at the previous proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii).
23 When the agency considers relevant evidence of country
1 conditions in evaluating a motion to reopen, we review the
2 agency’s factual findings under the substantial evidence
3 standard. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d
4 Cir. 2008).
5 However, our jurisdiction to review the BIA’s denial of
6 reopening in this case is limited to constitutional claims and
7 colorable questions of law because Perez’s removal order was
8 based on his conviction for a controlled substance offense. 8
9 U.S.C. § 1252(a)(2)(C), (D); Barco-Sandoval v. Gonzales, 516
10 F.3d 35, 41 (2d Cir. 2007); Durant v. U.S. INS, 393 F.3d 113,
11 115-16 (2d Cir. 2004) (applying jurisdictional bar in
12 § 1252(a)(2)(C) to petitions for review challenging the denial
13 of reopening). In order to ascertain whether a petitioner
14 raises constitutional challenges or questions of law over which
15 we have jurisdiction, we “study the arguments asserted
16 [and] . . . determine, regardless of the rhetoric employed in
17 the petition, whether it merely quarrels over the correctness
18 of the factual findings or justification for the discretionary
19 choices, in which case the court would lack jurisdiction.”
20 Xiao Ji Chen v. U.S. Dep't of Justice, 471 F.3d 315, 329 (2d
21 Cir. 2006).
3
1 Perez argues that the agency erred in concluding that he
2 failed to demonstrate a change in conditions in Honduras.
3 Although he frames this challenge as a question of law, i.e.,
4 that the agency ignored Second Circuit precedent holding that
5 worsened conditions could constitute a change in country
6 conditions, his challenge implicates the sort of agency factual
7 and discretionary determinations over which we lack
8 jurisdiction. See Barco-Sandoval, 516 F.3d at 42. Though
9 there is some evidence of increasingly severe violence
10 surrounding land disputes related to drug trafficking
11 post-2009, there was also substantial evidence that violence
12 against landowners had long been ongoing. Because the agency
13 did fairly consider the evidence in the record, Perez cannot
14 demonstrate that the agency erred as a matter of law in
15 concluding that he failed to show a change in conditions. See
16 Xiao Ji Chen, 471 F.3d at 330-31; see also Siewe v. Gonzales,
17 480 F.3d 160, 167 (2d Cir. 2007) (“Decisions as to . . . which
18 of competing inferences to draw are entirely within the province
19 of the trier of fact.” (internal quotation marks omitted)).
20 Because the BIA’s conclusion that Perez did not establish a
21 change in conditions is dispositive of his motion to reopen,
4
1 we need not reach the remainder of Perez’s arguments challenging
2 the BIA’s alternative grounds for dismissing Perez’s appeal.
3 For the foregoing reasons, the petition for review is
4 DISMISSED. As we have completed our review, any stay of removal
5 that the Court previously granted in this petition is VACATED,
6 and any pending motion for a stay of removal in this petition
7 is DISMISSED as moot. Any pending request for oral argument
8 in this petition is DENIED in accordance with Federal Rule of
9 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
10 34.1(b).
11 FOR THE COURT:
12 Catherine O’Hagan Wolfe, Clerk
5