Morquecho Garcia v. Garland ( 2021 )

19-1709
Morquecho Garcia v. Garland
BIA
Straus, IJ
A 205 890 441/442
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 13th day of May, two thousand twenty-one.
PRESENT:
JON O. NEWMAN,
ROBERT A. KATZMANN,
JOSEPH F. BIANCO,
Circuit Judges.
_____________________________________
MARTHA LUCIA MORQUECHO GARCIA,
AKA MARTHA MORQUECHO, AKA MARTHA
LUCIA, ANGEL GABRIEL MORQUECHO
SAICO, AKA ANGEL MORQUECHO,
Petitioners,
v. 19-1709
MERRICK B. GARLAND, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONERS: James A. Welcome, Waterbury, CT.
FOR RESPONDENT: Brian M. Boynton, Acting Assistant Attorney General;
Jessica A. Dawgert, Senior Litigation Counsel;
Giovanni B. Di Maggio, Trial Attorney, Office of
Immigration Litigation, 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.
Petitioners Martha Lucia Morquecho Garcia and Angel Gabriel Morquecho Saico, natives
and citizens of Ecuador, seek review of a May 16, 2019 decision of the BIA affirming a January
23, 2018 decision of an Immigration Judge (“IJ”) denying their applications for cancellation of
removal. In re Morquecho Garcia, Morquecho Saico, Nos. A 205 890 441/442 (B.I.A. May 16,
2019), aff’g Nos. A 205 890 441/442 (Immigr. Ct. Hartford Jan. 23, 2018). We assume the parties’
familiarity with the underlying facts and procedural history.
We have reviewed both the BIA’s and IJ’s decisions. See Wangchuck v. DHS, 448 F.3d
524, 528 (2d Cir. 2006). Petitioners applied for cancellation of removal, which is available to non-
permanent residents who meet presence and character requirements and, as relevant here,
“establish[] that removal would result in exceptional and extremely unusual hardship to” a
qualifying relative who is a U.S. citizen. 8 U.S.C. § 1229b(b)(1)(D). Petitioners alleged that
removal to rural Ecuador would cause hardship to their two U.S. citizen sons, primarily because
of the disparity in school quality.
Our review of this hardship determination is limited to colorable constitutional claims and
to questions of law. See 8 U.S.C. § 1252(a)(2)(B)(i), (D); Barco-Sandoval v. Gonzales, 516 F.3d
35, 36 (2d Cir. 2008). An error of law may arise if the agency applies the wrong legal standard,
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see id. at 40, or “overlook[s]” or “seriously mischaracterize[s]” the facts, Mendez v. Holder, 566
F.3d 316, 323 (2d Cir. 2009). 1
We dismiss the petition because Petitioners have not stated a colorable legal claim.
Petitioners’ arguments essentially challenge the weight the agency gave the evidence and the
balancing of factors, which we lack jurisdiction to review. See Xiao Ji Chen v. U.S. Dep’t of
Justice, 471 F.3d 315, 329 (2d Cir. 2006).
Petitioners argue that the BIA and IJ failed to consider all of the required factors or to
consider hardship cumulatively. These claims are not supported by the record. Hardship is a high
burden, requiring that a “qualifying relative[] 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 (B.I.A. 2001); see also
In re Andazola-Rivas, 23 I. & N. Dec. 319, 322 (B.I.A. 2002) (noting that exceptional and
extremely unusual hardship is a “very high standard”). The agency considers “the ages, health, and
circumstances of qualifying . . . relatives,” including how a lower standard of living, diminished
educational opportunities, or adverse country conditions in the country of removal might affect the
relatives. Monreal-Aguinaga, 23 I. & N. Dec. at 63; see also Andazola-Rivas, 23 I. & N. Dec. at
323; In re Gonzalez Recinas, 23 I. & N. Dec. 467, 468 (B.I.A. 2002). Both the IJ and the BIA
considered education, standard of living, family ties, the age and health of the qualifying relatives
and applicants, and Petitioners’ ability to maintain employment, before concluding that the
hardship was not “substantially different from, or beyond, that which ordinarily would be expected
to result from a family member’s removal from the United States.” See Monreal-Aguinaga, 23
1
Unless otherwise indicated, in quoting cases, we omit all internal citations, quotation
marks, footnotes, and alterations.
3
I. & N Dec. at 65; Andazola-Rivas, 23 I. & N. Dec. at 321. The IJ explicitly considered the
“substantial impact to the children in moving to a rural area in Ecuador” as well as the “disruption
to the children’s education,” and weighed these factors against the oldest child’s ability to speak
some Spanish, the children’s lack of health issues, Petitioners’ ability to work, and their family
ties to Ecuador. Cert. Admin. Rec. 43. We do not have jurisdiction to review further the IJ’s
balancing of these factors. See Argueta v. Holder, 617 F.3d 109, 112–13 (2d Cir. 2010).
Petitioners also contend that the IJ “disregarded significant evidence of educational
factors” and failed to account for the “drastic difference[]” in the “education levels” of the United
States and Ecuador. Pet’rs Br. at 25–27. An IJ commits legal error when key facts “have been
totally overlooked” or “seriously mischaracterized.” Mendez, 566 F.3d at 323. However, the IJ
here explicitly considered the difference in education systems, but concluded that the diminished
opportunities in Ecuador did not satisfy the high burden of “exceptional and extremely unusual
hardship.” 8 U.S.C. § 1229b(b)(1)(D). To the extent Petitioners argue that the IJ afforded too little
weight to a given factor, that argument is beyond our jurisdiction. See Barco-Sandoval, 516 F.3d
at 42; Argueta, 617 F.3d at 113 (distinguishing between raising the consideration of a prohibited
factor as a question of law and raising the balancing of factors as an unreviewable factual
determination).
Finally, Petitioners argue that the agency failed to consider certain country condition
reports on the deficiencies of Ecuador’s education system. But the administrative record does not
reflect that any such reports were submitted to the agency. After we requested additional briefing
from the parties on this factual question, Petitioners’ appellate counsel (who did not represent them
before the agency) indicated that he is in possession of a packet of country condition reports
provided by Petitioners’ prior counsel, but conceded the possibility that Petitioners’ prior counsel
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failed to formally add these documents to the agency record. See ECF 95 at 1. Because it was
Petitioners’ burden to build the record before the agency, we cannot consider these country
condition reports on appeal. To the extent such reports support Petitioners’ request for cancellation
of removal but were left out of the record through attorney error, they might be the subject of a
motion to reopen before the agency.
For the foregoing reasons, the petition for review is DISMISSED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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