Noriega De Pomar v. Holder ( 2011 )

11-174-ag
Noriega de Pomar v. Holder
BIA
Balasquide, IJ
A097 722 742
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 6th day of December, two thousand eleven.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 PETER W. HALL,
10 GERARD E. LYNCH,
11 Circuit Judges.
12 _________________________________________
13
14 PAOLA ESTHER NORIEGA DE POMAR,
15 Petitioner,
16
17 v. 11-174-ag
18
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _______________________________________
23
24
25 FOR PETITIONER: Amanda E. Gray (Jules E. Coven,
26 Kerry W. Bretz, on the brief)
27 Bretz & Coven, LLP,
28 New York, NY.
29
1 FOR RESPONDENT: Tony West, Assistant Attorney
2 General; Blair O’Connor, Assistant
3 Director; Kathryn Moore, Trial
4 Attorney, United States Department
5 of Justice, Civil Division, Office
6 of Immigration Litigation,
7 Washington, D.C.
8
9 UPON DUE CONSIDERATION of this petition for review of a
10 Board of Immigration Appeals (“BIA”) decision, it is hereby
11 ORDERED, ADJUDGED, AND DECREED that the petition for review
12 is DENIED.
13 Paola Esther Noriega de Pomar, a native and citizen of
14 Peru, seeks review of a December 20, 2010, order of the BIA
15 reversing the September 14, 2009, decision of Immigration
16 Judge (“IJ”) Javier E. Balasquide, and finding her removable
17 and ineligible for cancellation of removal. In re Paola
18 Esther Noriega de Pomar, No. A097 722 742 (B.I.A. Dec. 20,
19 2010), rev’g No. A097 722 742 (Immig. Ct. N.Y. City, Sept.
20 14, 2009). We assume the parties’ familiarity with the
21 underlying facts, procedural history, and the issues
22 presented for review. Since the BIA reversed the decision
23 of the IJ, we review only the BIA’s decision. See Yan Chen
24 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).
25 Generally we lack jurisdiction to review the agency’s
26 denial of an application for cancellation of removal under 8
2
1 U.S.C. § 1229b(b) that is based on an alien’s failure to
2 establish “exceptional and extremely unusual hardship.” See
3 8 U.S.C. § 1252(a)(2)(B)(i); see also Barco-Sandoval v.
4 Gonzales, 516 F.3d 35, 39 (2d Cir. 2008). However, pursuant
5 to the REAL ID Act, we retain jurisdiction to review non-
6 frivolous constitutional claims and questions of law, which
7 we review de novo. See 8 U.S.C. § 1252(a)(2)(D); Vargas-
8 Sarmiento v. U.S. Dep’t of Justice, 448 F.3d 159, 164-65 (2d
9 Cir. 2006); Sepulveda v. Gonzales, 407 F.3d 59, 62-63 (2d
10 Cir. 2005).
11 [1] Noriega de Pomar argues that the BIA’s discretionary
12 decision rests on fact-finding that is flawed by an error of
13 law because it overlooked and mischaracterized evidence that
14 Andrea, her U.S. citizen daughter, would suffer exceptional
15 and extremely unusual hardship as a result of Noriega de
16 Pomar’s removal. The BIA explicitly considered the likely
17 impact of Noriega de Pomar’s removal on Andrea’s academic
18 and athletic endeavors. Noriega de Pomar points out that
19 the BIA did not mention the number of years that Andrea was
20 in honors classes or the possibility that she could earn a
21 soccer scholarship, but it was not required to do so. See
22 Mendez v. Holder, 566 F.3d 316, 323 (2d Cir. 2009) (“[T]he
3
1 agency does not commit an ‘error of law’ every time an item
2 of evidence is not explicitly considered or is described
3 with imperfect accuracy . . . .”)
4 The BIA concluded that Noriega de Pomar’s daughter
5 would be “emotionally distracted” by her mother’s removal.
6 Noriega de Pomar argues that this mischaracterizes the
7 extent of the hardship. However, the record does not
8 contradict that characterization. See Carcamo v. U.S. Dep’t
9 of Justice, 498 F.3d 94, 98 (2d Cir. 2007).
10 [2] Noriega de Pomar further contends that the BIA
11 incorrectly applied the clearly erroneous standard of review
12 by substituting its judgment when reviewing the IJ’s
13 findings. This argument is unavailing. The BIA reviews
14 questions of law and discretion de novo, and under that
15 standard the BIA may make an independent determination of
16 whether the hardship to be suffered by the alien’s citizen
17 relative rises to the necessary level. 8 C.F.R.
18 § 1003.1(d)(3)(ii). The BIA thus did not err in rejecting
19 the IJ’s conclusion that the seriousness of Andrea’s
20 psychological state showed that she would experience
21 hardship that is exceptional and extremely unusual.
22 Noriega’s arguments to the contrary amount to “a quarrel
4
1 about . . . the exercise of discretion” which we lack
2 jurisdiction to review. Barco-Sandoval, 516 F.3d at 39
3 (internal quotation marks omitted). Similarly, the BIA did
4 not make an inappropriate factual finding as to whether
5 Noriega de Pomar would reunite with her family; rather, the
6 BIA correctly noted that she presented no evidence that a
7 reunion was impossible in South America.
8 [3] Finally, Noriega de Pomar asserts that the BIA
9 erroneously failed to provide its reasoning or consider the
10 hardship factors in the aggregate. However, the BIA
11 clearly discussed the detrimental effects Noriega de Pomar’s
12 removal would have on her daughter’s academic and athletic
13 endeavors, as well as Andrea’s loss of her mother’s
14 financial contribution and emotional support. The BIA
15 nevertheless found that, in the aggregate, this evidence did
16 not amount to the requisite hardship because Noriega de
17 Pomar testified that her daughter would remain in the United
18 States if she were removed, and thus Andrea would enjoy the
19 same educational and athletic opportunities in the United
20 States. The BIA’s legal finding is supported by precedent.
21 See Matter of Andazola-Rivas, 23 I. & N. Dec. 319, 322-23
22 (B.I.A. 2002) (holding that economic detriment to a
23 qualifying relative alone does not meet the hardship
5
1 standard); cf. Matter of Recinas, 23 I. & N. Dec. 467, 471
2 (B.I.A. 2002). Because the BIA explained its reasoning, and
3 the record does not reflect any failure of the BIA to assess
4 the hardship factors in the aggregate, the BIA did not err
5 as a matter of law. See id. at 472 (holding that the
6 analysis of hardship requires an assessment of the hardship
7 factors in their totality).
8 We have considered Petitioner’s remaining arguments and
9 we find them to be without merit. For the foregoing reasons,
10 the petition for review is DENIED. As we have completed our
11 review, the pending motion to dismiss this petition is
12 DISMISSED as moot.
13 FOR THE COURT:
14 Catherine O’Hagan Wolfe, Clerk
15
16
6