Arguello v. Lynch , 614 F. App'x 19 ( 2015 )

14-216-ag
Arguello v. Lynch
BIA
Straus, IJ
A087 411 677
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
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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 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 9th
day of June, two thousand fifteen.
PRESENT:
ROSEMARY S. POOLER,
BARRINGTON D. PARKER,
RICHARD C. WESLEY,
Circuit Judges.
_______________________________________
MARTHA PATRICIA ARGUELLO,
Petitioner,
v. 14-216-ag
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,
Respondent.1
______________________________________
FOR PETITIONER: Elyssa N. Williams, Formica Williams,
P.C., New Haven, CT.
FOR RESPONDENT: Colette J. Winston, Trial Attorney;
Stuart F. Delery, Assistant Attorney
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Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Loretta E. Lynch is automatically
substituted for former Attorney General Eric H. Holder, Jr.
General; Jennifer Williams, Senior
Litigation Counsel; Office of
Immigration Litigation, U.S. Department
of Justice, 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 for lack of jurisdiction.
Petitioner Martha Patricia Arguello, a native and citizen of
Ecuador, seeks review of a December 26, 2013 decision of the BIA
affirming the October 3, 2012 decision of an Immigration Judge
(“IJ”) denying her application for cancellation of removal. In
re Martha Patricia Arguello, No. A087 411 677 (B.I.A. Dec. 26,
2013), aff’g No. A087 411 677 (Immig. Ct. Hartford Oct. 3, 2012).
We have considered both the IJ’s and the BIA’s opinions “for the
sake of completeness.” Wangchuck v. Dep’t of Homeland Sec., 448
F.3d 524, 528 (2d Cir. 2006). We assume the parties’ familiarity
with the underlying facts and procedural history in this case.
We lack jurisdiction to review the agency’s denial of
Arguello’s application for cancellation of removal. The Attorney
General enjoys discretionary authority to grant cancellation of
removal where an applicant (1) “has been physically present in
the United States for a continuous period of not less than 10
years immediately preceding the date of such application;” (2)
“has been a person of good moral character during such period;”
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(3) has not been convicted of an enumerated criminal offense; and
(4) “establishes that removal would result in exceptional and
extremely unusual hardship to the alien's spouse, parent, or
child, who is a citizen of the United States or an alien lawfully
admitted for permanent residence.” 8 U.S.C. § 1229b(b)(1)(A)-(D);
Sumbundu v. Holder, 602 F.3d 47, 49–50 (2d Cir. 2010). Here the
BIA affirmed the IJ's decision to deny Arguello's application for
cancellation of removal after deciding that she had failed to
establish that her removal would result in exceptional and
extremely unusual hardship to a qualifying family member. Because
this is a discretionary finding, our jurisdiction to review the
agency's determination is limited to “constitutional claims or
questions of law,” 8 U.S.C. § 1252(a)(2)(B), (D), such as in
“those rare cases where the . . . decision on whether this kind
of hardship exists . . . rests on fact-finding which is flawed by
an error of law,” Mendez v. Holder, 566 F.3d 316, 322 (2d Cir.
2009) (internal quotation marks and citations omitted).
In order to ascertain whether a petitioner raises
constitutional challenges or questions of law over which we have
jurisdiction, we must “study the arguments asserted [and] . . .
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
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case the court would lack jurisdiction.” Xiao Ji Chen v. U.S.
Dep't of Justice, 471 F.3d 315, 329 (2d Cir. 2006).
Although Arguello contends that the agency committed an
error of law by mischaracterizing and overlooking factual
evidence in the record, her arguments amount merely to “a quarrel
about fact-finding [and] the exercise of discretion,” id. at 330,
which does not raise a "colorable question of law that we have
jurisdiction to review," Barco-Sandoval v. Gonzales, 516 F.3d 35,
40 (2d Cir. 2008) (internal quotation marks omitted). In broadly
asserting that the IJ mischaracterized evidence of her daughter’s
physical and cognitive disabilities and made findings contrary to
the record, Arguello merely summarizes her interpretation of the
evidence and expresses her disagreement with the IJ’s
consideration of her testimony and the record evidence. Further,
Arguello’s contention that the IJ overlooked the severity of
particular aspects of her daughter’s developmental deficiencies
contests only the IJ’s weighing of the evidence of hardship.
Review of these discretionary determinations here is beyond the
scope of our jurisdiction.
Finally, we pause to note a consideration independent of the
legal issues presented in this petition. It appears from the
record before us that Arguello has been present in the United
States for fifteen years and has two United States citizen
children - an eleven-year-old son and a four-year-old daughter.
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Arguello represents that she has been steadily employed, and
nothing in the record indicates that she has any criminal
convictions. In light of these factors, the government may well
wish to consider whether continued prosecution of this case is
consistent with its new guidelines (announced since the tolling
period in this case was cancelled and the matter was argued
before this Court) on immigration enforcement priorities and the
exercise of prosecutorial discretion. See Memorandum from Jeh
Johnson, Secretary, Department of Homeland Security, to U.S.
Immigration and Customs Enforcement, et al. (Nov. 20, 2014)
("Subject: Policies for the Apprehension, Detention and Removal
of Undocumented Immigrants") available at
http://www.dhs.gov/sites/default/files/publications/14_1120_memo_
prosecutorial_discretion.pdf.
For the foregoing reasons, the petition for review is
DISMISSED. As we have completed our review, the stay of removal
that the Court previously granted in this petition is VACATED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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