Saldivar Moran v. Sessions ( 2018 )

17-2209
Saldivar Moran v. Sessions
BIA
Sichel, IJ
A201 241 803
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
14th day of September, two thousand eighteen.
PRESENT:
RALPH K. WINTER,
JOHN M. WALKER, JR.,
CHRISTOPHER F. DRONEY,
Circuit Judges.
_____________________________________
MIGUEL SALDIVAR MORAN, AKA MIGUEL
SALDIVAR, AKA MIGUEL MORAN
SALDIVAR,
Petitioner,
v. 17-2209
JEFFERSON B. SESSIONS III,
UNITED STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Robert Cini, Howard M. Rosengarten, New York, NY.
FOR RESPONDENT: Chad A. Readler, Acting Assistant Attorney General;
Carl McIntyre, Assistant Director; Kevin J. Conway,
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.
Petitioner Miguel Saldivar Moran, a native and citizen of Mexico, seeks review of
a June 30, 2017, decision of the BIA dismissing his appeal of a September 7, 2016, decision
of an Immigration Judge (“IJ”) ordering his removal and denying his application for
cancellation of removal. In re Miguel Saldivar Moran, No. A 201 241 803 (B.I.A. June
30, 2017), aff’g No. A 201 241 803 (Immig. Ct. N.Y. City Sept. 7, 2016). We assume the
parties’ familiarity with the underlying facts and procedural history in this case.
I. Jurisdiction
Our jurisdiction to review Saldivar Moran’s removal order is limited to de novo
review of non-frivolous constitutional claims or questions of law, see 8 U.S.C.
§ 1252(a)(2)(D); Pierre v. Holder, 588 F.3d 767, 772 (2d Cir. 2009); Barco-Sandoval v.
Gonzales, 516 F.3d 35, 40 (2d Cir. 2008). Accordingly, we may not review Saldivar
Moran’s challenge to the removal order if it “merely quarrels over the correctness of the
factual findings or justification for the discretionary choices.” Xiao Ji Chen v. U.S. Dep’t
of Justice, 471 F.3d 315, 329 (2d Cir. 2006).
II. Governing Law
A nonpermanent resident, such as Saldivar Moran, may have his removal cancelled
if he demonstrates that his “removal would result in exceptional and extremely unusual
hardship” to his U.S. citizen or lawful permanent resident spouse, parent, or child.
8 U.S.C. § 1229b(b)(1)(D). To satisfy this standard, “the hardship to [his] relatives . . .
must be ‘substantially’ beyond the ordinary hardship that would be expected when a close
family member leaves this country.” In re Monreal-Aguinaga, 23 I. & N. Dec. 56, 62
(B.I.A. 2001) (quoting H.R. Conf. Rep. No. 104-828, at 213 (1996)).
Because the BIA only affirmed the IJ’s hardship determination, and in doing so
relied on a more limited set of factors than the IJ, we have reviewed the IJ’s decision as
limited by the BIA’s analysis. See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520,
522 (2d Cir. 2005). Accordingly, the issue presented is whether Saldivar Moran has
identified a non-frivolous constitutional claim or question of law regarding the IJ’s
hardship determination. We conclude he has not. Although the agency may commit an
error of law if it ignores or seriously mischaracterizes material facts, see Mendez v. Holder,
566 F.3d 316, 323 (2d Cir. 2009), the record reflects that the IJ and the BIA properly
considered the evidence Saldivar Moran submitted.
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III. Undue Hardship to Saldivar Moran’s Parents and Sister
Saldivar Moran argues that the IJ improperly speculated that his parents’ diabetes
and his mother’s poor vision are common and usually manageable conditions, and that the
IJ could have sought testimony from his parents rather than relying solely on their
affidavits, which did not elaborate on the seriousness of their medical conditions. But
neither of those arguments shows that the IJ failed to consider or mischaracterized the
evidence he submitted. Instead, Saldivar Moran challenges the IJ’s factual determination,
over which this court has no jurisdiction, Emokah v. Mukasey, 523 F.3d 110, 119 (2d Cir.
2008), and fails to acknowledge that he had the burden to prove that his parents’ medical
conditions were sufficiently serious, see 8 U.S.C. § 1229a(c)(4)(A), (B) (placing the burden
of proving eligibility for relief on the applicant, providing that the IJ may require
corroboration of even credible testimony, and requiring the applicant to produce such
evidence unless it cannot be reasonably obtained). Although Saldivar Moran’s parents did
not testify, Saldivar Moran stipulated that they would testify consistently with their
affidavits, documents that the IJ identified as exhibits and cited throughout his opinion.
Nor did the agency ignore evidence of Saldivar Moran’s parents’ or sister’s
economic or logistical hardships. The IJ acknowledged Saldivar Moran’s testimony that
his parents would be unable to provide for Roberto because of their health conditions and
that his sister’s full-time job would make it impossible for her to care for Roberto as well
as her own child. But the IJ concluded that Saldivar Moran had not demonstrated that he
could not financially support Roberto from Mexico or that his family could not care for
Roberto, particularly given that Roberto now lives with his aunt and grandparents whose
schedules align with Roberto’s. Because the IJ considered the evidence Saldivar Moran
claims it did not, he has not identified a non-frivolous question of law for the court’s
review. See Mendez, 566 F.3d at 323.
IV. Undue Hardship to Saldivar Moran’s Son
Saldivar Moran also claims the IJ failed to conduct adequate factfinding regarding
the seriousness of his son’s heart murmur. But, again, Saldivar Moran bore the burden of
proving that hardship and thus may only argue that the IJ failed to consider or
mischaracterize the evidence he offered in support. Here, the IJ considered the only
documentation provided of his son’s heart condition—an assessment from a social
worker—and noted that Saldivar Moran had not produced medical records or a letter from
a cardiologist or treating physician to prove his claim. The IJ was permitted to require
this documentation. See 8 U.S.C. § 1229a(c)(4)(B). And because the IJ’s conclusion that
the evidence of hardship due to that condition was insufficient is another factual
determination that we cannot reach, Emokah, 523 F.3d at 119, Saldivar Moran still has not
shown reversible error.
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Saldivar Moran also asserts that the IJ should not have used his conviction for
driving while intoxicated and endangering the welfare of a child—involving his son and
others—as evidence of “extremely poor parenting.”1 But even if the IJ should not have
considered his poor parenting, the BIA did not rely on it in affirming the IJ’s decision, and
so it could not have resulted in reversible prejudice. See Xue Hong Yang, 426 F.3d at 522.
To the extent Saldivar Moran also argues that the IJ failed to consider positive
representations of his parenting in his family’s affidavits, that argument also fails. The IJ
cited the affidavits throughout her decision, leaving no doubt that she had reviewed and
considered the statements they contain.
V. Conclusion
For the foregoing reasons, the petition for review is DISMISSED.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
1
Saldivar Moran, however, does not challenge the consideration of his criminal conviction generally.
4