Fernandez v. Holder ( 2014 )

13-1984
Fernandez v. Holder
BIA
A042 091 035
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 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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 22nd day of April, two thousand fourteen.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 JOSÉ A. CABRANES,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _________________________________________
12
13 JACQUELINE DEL CARMEN FERNANDEZ,
14 AKA JACKELINE FERNANDEZ,
15 Petitioner,
16
17 v. 13-1984
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _________________________________________
23
24 FOR PETITIONERS: Anayancy R. Housman, Elizabeth, NJ.
25
26 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
27 General; David V. Bernal, Assistant
28 Director; Anthony C. Payne, Senior
29 Litigation Counsel, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DISMISSED.
5 Petitioner Jacqueline Del Carmen Fernandez, a native
6 and citizen of the Dominican Republic, seeks review of the
7 April 24, 2013, decision of the BIA denying her motion to
8 reopen. In re Jacqueline Del Carmen Fernandez, No. A042 091
9 035 (B.I.A. Apr. 24, 2013). We assume the parties’
10 familiarity with the underlying facts and procedural history
11 of the case.
12 We review the denial of a motion to reopen for abuse of
13 discretion, Kaur v. BIA, 413 F.3d 232, 233 (2d Cir. 2005)
14 (per curiam), and when the BIA considers relevant evidence
15 of country conditions in evaluating a motion to reopen, we
16 review the BIA’s factual findings under the substantial
17 evidence standard. See Jian Hui Shao v. Mukasey, 546 F.3d
18 138, 169 (2d Cir. 2008). However, we lack jurisdiction to
19 review any final order of removal against an alien “who is
20 removable by reason of having committed” an aggravated
21 felony. 8 U.S.C. § 1252(a)(2)(C). Where review of the
22 underlying removal order would be prohibited by
2
1 § 1252(a)(2)(C), the jurisdictional bar has been extended to
2 petitions seeking review of the BIA’s denial of a motion to
3 reopen. See Durant v. INS, 393 F.3d 113, 115–16 (2d Cir.
4 2004). Notwithstanding these provisions, we nonetheless
5 retain jurisdiction to review constitutional claims and
6 “questions of law.” 8 U.S.C. § 1252(a)(2)(D).
7 In order to ascertain whether a petitioner raises
8 constitutional challenges or questions of law over which we
9 have jurisdiction, we “study the arguments asserted [and] .
10 . . determine, regardless of the rhetoric employed in the
11 petition, whether it merely quarrels over the correctness of
12 the factual findings or justification for the discretionary
13 choices, in which case the court would lack jurisdiction.”
14 Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d
15 Cir. 2006). In this case, Fernandez does not raise any
16 constitutional claims or questions of law. Fernandez first
17 argues that the BIA erred in determining that she did not
18 establish a change in country conditions. A determination
19 regarding whether the evidence submitted established a
20 change in country conditions is a factual finding, and we
21 lack jurisdiction to review it. See id. at 330. Fernandez
22 also argues that the agency’s denial of her motion to reopen
3
1 violated her due process right. However, Fernandez’s
2 specific claim is that her due process right was violated
3 because the BIA did not properly consider the evidence of
4 changed country conditions. This argument “merely quarrels
5 over the correctness of the factual findings.” See id. at
6 329.
7 Because the BIA’s conclusion that Fernandez did not
8 establish changed country conditions was dispositive of her
9 motion to reopen, we do not address her argument regarding
10 her prima facie eligibility for relief.
11 For the foregoing reasons, the petition for review is
12 DISMISSED.
13 FOR THE COURT:
14 Catherine O’Hagan Wolfe, Clerk
15
16
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