Reina v. Sessions , 698 F. App'x 6 ( 2017 )


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  •     16-3230
    Reina v. Sessions
    BIA
    Straus, IJ
    A073 535 464
    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 3rd day
    of October, two thousand seventeen.
    PRESENT:
    DEBRA ANN LIVINGSTON,
    GERARD E. LYNCH,
    Circuit Judges,
    JED S. RAKOFF,
    District Judge.
    _____________________________________
    OSCAR A. REINA, AKA OSCAR REINA
    FLORES,
    Petitioner,
    v.                                           16-3230
    JEFFERSON B. SESSIONS III,
    UNITED STATES ATTORNEY GENERAL,
    Respondent.
    _____________________________________
    FOR PETITIONER:                   ERIN I. O’NEIL-BAKER, Hartford Legal Group,
    LLC, Hartford, CT.
    FOR RESPONDENT:                   MATTHEW CONNELLY, Trial Attorney, Office of
    Immigration Litigation (Chad Readler,
    Acting Assistant Attorney General, Civil
    Division; Mary Jane Candaux, Assistant
    Director,       Office    of    Immigration
     Judge Jed S. Rakoff, of the United States District Court for the
    Southern District of New York, sitting by designation.
    Litigation; on the brief), United States
    Department of Justice, Washington, DC.
    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 Oscar A. Reina, a native and citizen of El Salvador,
    seeks review of an August 19, 2016, decision of the BIA affirming
    a January 15, 2015, decision of an Immigration Judge (“IJ”) denying
    special    rule        cancellation    of   removal    under    8    U.S.C.    §
    1229b(b)(2)(A)(i).         In re Oscar A. Reina, No. A073 535 464 (B.I.A.
    Aug. 19, 2016), aff’g No. A073 535 464 (Immig. Ct. Hartford Jan. 15,
    2015).    We assume the parties’ familiarity with the underlying facts
    and procedural history in this case.
    Under the circumstances of this case, we have reviewed the IJ’s
    decision as supplemented and modified by the BIA.                   See Wala v.
    Mukasey, 
    511 F.3d 102
    , 105 (2d Cir. 2007); Xue Hong Yang v. U.S. Dep’t
    of Justice, 
    426 F.3d 520
    , 522 (2d Cir. 2005).         Because the BIA assumed
    the marriage was bona fide, the only issue before us is the denial
    of relief based on Reina’s failure to show that he was battered or
    subjected to extreme cruelty.          Xue Hong Yang, 
    426 F.3d at 522
    .        Our
    jurisdiction      to    review   the   agency’s   denial   of   special    rule
    cancellation of removal is limited to constitutional claims and
    questions of law.        
    8 U.S.C. § 1252
    (a)(2)(B), (D); Rosario v. Holder,
    
    627 F.3d 58
    , 61 (2d Cir. 2010).
    Reina sought special rule cancellation as an abused former
    spouse of a U.S. citizen.        To qualify for special rule cancellation,
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    an alien must establish that he has been “battered or subjected to
    extreme cruelty by a spouse” who is a U.S. citizen or lawful permanent
    resident.      8 U.S.C. § 1229b(b)(2)(A)(i).       The agency’s denial of
    special rule cancellation of removal for failure to establish battery
    or   extreme    cruelty   is   generally   a   factual   and   discretionary
    determination that we cannot review.           Rosario, 
    627 F.3d at 63-64
    .
    A constitutional claim or question of law may arise if “the BIA
    applies an incorrect law or legal standard, bases its decision on
    a factfinding premised on an error of law, or reaches a conclusion
    that lacks any rational justification.”          
    Id. at 63
    .    Additionally,
    “[w]e determine our jurisdiction by looking at the underlying nature
    of the BIA’s determination rather than any gloss offered by the
    parties.” Rosario, 
    627 F.3d at 62
     (emphasis in original).               “[A]
    petitioner cannot us[e] the rhetoric of a . . . question of law to
    disguise what is essentially a quarrel about fact-finding or the
    exercise of discretion.” Barco-Sandoval v. Gonzales, 
    516 F.3d 35
    ,
    39 (2d Cir. 2008) (quoting Xiao Ji Chen v. U.S. Dep’t of Justice,
    
    471 F.3d 315
    , 330 (2d Cir. 2006) (internal quotation marks omitted)
    (second alteration in original)).
    We conclude that we do not have subject matter jurisdiction to
    review Reina’s petition.
    Reina first argues that the BIA applied the wrong legal standard
    by requiring him to demonstrate that he was subject to battery and
    extreme cruelty.      However, the BIA cited the correct statutory
    provision regarding the burden of proof, “[s]ection 240(c)(4)(B) of
    3
    the [Immigration and Nationality] Act,” which is codified at 8 U.S.C.
    § 1229a(c)(4)(B). Reina contends that the BIA incorrectly relied on
    case law addressing the corroboration standard for asylum in reaching
    its decision. That is untrue: the BIA cited but did not rely on asylum
    cases in which it had found testimony was too vague to be credible.
    At any rate, to the extent Reina argues that citing cases about the
    sufficiency of corroboration from asylum cases in applying the
    statute governing whether an applicant has sustained his burden of
    proof in a cancellation of removal case, 8 U.S.C. § 1229a(c)(4)(b),
    the argument is not colorable, as the comparable statute governing
    asylum   cases,   
    8 U.S.C. § 1158
    (b)(1)(B)(ii),   is   functionally
    identical. Because “the BIA applied the correct law and the correct
    legal standard,” Rosario, 
    627 F.3d at 64
     (setting the substantive
    standard for special rule cancellation of removal for battered
    spouses) (internal citations omitted), we do not have subject matter
    jurisdiction to hear this challenge to the BIA’s decision.
    Second, Reina argues that the BIA’s decision was “erroneous as
    a matter of law” and lacked “rational justification” because the
    agency seriously mischaracterized his testimony and overlooked parts
    of it. Pet’r Br. at 18–19; see Mendez v. Holder, 
    566 F.3d 316
    , 323
    (2d   Cir.   2009).        But     rather   than   cite      any   serious
    mischaracterizations or omissions, Reina just repeats the same
    allegations that the BIA and IJ found too vague to meet his statutory
    burden. This is an objection to the BIA and IJ’s factual findings
    and we cannot entertain it.
    4
    We have considered all of Appellant’s remaining arguments and
    find them to be without merit.       Accordingly, for the foregoing
    reasons, the petition for review is DISMISSED.
    FOR THE COURT:
    Catherine O’Hagan Wolfe, Clerk
    5