Tenecela v. Garland ( 2021 )

20-2637
Tenecela v. Garland
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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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
19th day of October, two thousand twenty-one.
PRESENT:
DENNIS JACOBS,
STEVEN J. MENASHI,
Circuit Judges,
LEWIS A. KAPLAN,
District Judge. *
_____________________________________
FREDDY MAURICIO NIEVES TENECELA,
AKA FREDDY NIEVES, AKA FREDDY
MAURICIO TENECELA,
Petitioner,
v. 20-2637
MERRICK B. GARLAND, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Erin O’Neil-Baker, O’Neil Baker
Law, LLC, Hartford, CT.
* Judge Lewis A. Kaplan, of the United States District Court for
the Southern District of New York, sitting by designation.
FOR RESPONDENT: Bryan Boynton, Acting Assistant
Attorney General, Civil Division;
Russell J. E. Verby, Senior
Litigation Counsel, Office of
Immigration Litigation; John D.
Williams, Trial Attorney, Office
of Immigration Litigation, United
States Department of Justice,
Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a
decision of the Board of Immigration Appeals (“BIA”), it is hereby
ORDERED, ADJUDGED, and DECREED that the petition for review is
DISMISSED.
Petitioner Freddy Mauricio Nieves Tenecela, a citizen of
Ecuador, seeks review of a July 28, 2020, decision of the BIA,
affirming an April 30, 2018, decision of an Immigration Judge
(“IJ”) denying his application for cancellation of removal. In re
Freddy Mauricio Nieves Tenecela, No. A206 781 573 (B.I.A. July 28,
2020), aff’g No. A206 781 573 (Immig. Ct. Hartford Apr. 30, 2018).
We assume the parties’ familiarity with the underlying facts and
procedural history.
We have reviewed the IJ’s decision as modified by the BIA,
i.e., minus the physical presence finding that the BIA did not
reach. See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520,
522 (2d Cir. 2005). A deportable or inadmissible alien such as
Tenecela may have his removal cancelled if, as relevant here, the
alien “establishes that removal would result in exceptional and
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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)(D). The hardship
to a qualifying relative “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) (internal quotation marks omitted). Our jurisdiction
to review the agency’s denial of cancellation of removal based on
an alien’s failure to satisfy the hardship requirement is limited
to colorable constitutional claims and questions of law. 8 U.S.C.
§ 1252(a)(2)(B), (D); Barco-Sandoval v. Gonzales, 516 F.3d 35, 39-
41 (2d Cir. 2008).
The agency determined that Tenecela failed to show that his
qualifying relatives—his three U.S. citizen children—would suffer
exceptional and extremely unusual hardship if he were removed to
Ecuador because he testified that they will remain in the United
States with their respective mothers and alleged only that they
will suffer the unfortunate but ordinary emotional hardship to be
expected upon a father’s removal from the country. Tenecela does
not raise a colorable constitutional claim or question of law over
which we have jurisdiction. He argues that the agency erred in
determining that, although one of his children receives assistance
with reading, that child does not have a serious learning
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disability or an unusual or significant medical history. That
argument is frivolous because the agency made no such
determinations, and no learning disabilities or medical conditions
were alleged before the IJ. Accordingly, because Tenecela has not
raised a colorable constitutional claim or question of law
regarding the agency’s dispositive hardship determination, we
dismiss the petition for lack of jurisdiction, see 8 U.S.C. §§
1229b(b), 1252(a)(2)(B), (D); Barco-Sandoval, 516 F.3d at 39-41,and do not reach the agency’s alternative discretionary denial of
cancellation, see INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As
a general rule courts and agencies are not required to make
findings on issues the decision of which is unnecessary to the
results they reach.”).
For the foregoing reasons, the petition for review is
DISMISSED.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
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