Martinez Leon v. Garland ( 2023 )

21-6343
Martinez Leon v. Garland
BIA
A206 031 209
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.
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 12th day of September, two thousand
twenty-three.
PRESENT:
MICHAEL H. PARK,
ALISON J. NATHAN,
SARAH A. L. MERRIAM,
Circuit Judges.
_____________________________________
ANTONIO MARTINEZ LEON,
Petitioner,
v. 21-6343-ag
MERRICK B. GARLAND, UNITED
STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Visuvanathan Rudrakumaran, Esq., New
York, NY.
FOR RESPONDENT: Brian Boynton, Principal Deputy Assistant
Attorney General; Holly M. Smith, Assistant
Director; Jesse D. Lorenz, 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 Antonio Martinez Leon, a native and citizen of Mexico, seeks
review of a May 12, 2021 decision of the BIA, denying his motion to reopen. In re
Antonio Martinez Leon, No. A206 031 209 (B.I.A. May 12, 2021). We assume the
parties’ familiarity with the underlying facts and procedural history.
Martinez Leon sought reopening to present additional evidence in support
of cancellation of removal, specifically that his 18-year-old son had decided to
return to Mexico with him and would suffer hardship there because of his health
issues, COVID-19, and difficulty obtaining employment. Our jurisdiction to
review the agency’s denial of cancellation of removal for failure to establish
hardship to a qualifying relative, or the denial of a motion to reopen to present
more evidence in support of hardship, is limited to colorable constitutional claims
and questions of law. See 8 U.S.C. §§ 1252(a)(2)(B), (D); Patel v. Garland, 142 S. Ct.
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1614, 1622–23 (2022); Barco-Sandoval v. Gonzales, 516 F.3d 35, 38–40 (2d Cir. 2007);
Sepulveda v. Gonzales, 407 F.3d 59, 64 (2d Cir. 2005). We review such claims de
novo. See Dale v. Barr, 967 F.3d 133, 138 (2d Cir. 2020).
Martinez Leon argues that the BIA erred as a matter of law in denying his
motion to reopen to submit new evidence that his son would suffer exceptional
and extremely unusual hardship if he (Martinez Leon) is removed because the BIA
failed to mention COVID-19 in evaluating the evidence, it did not evaluate any
hardship factors other than employment and health, and it did not mention a then-
unpublished academic article he cited on emotional hardship that results from the
removal of a parent. See 8 U.S.C. § 1229b(b)(1)(D) (requiring nonpermanent
resident cancellation applicant to “establish[] 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”). His arguments are belied by the record.
The BIA explicitly acknowledged Martinez Leon’s evidence related to
COVID-19 but nevertheless concluded that such evidence would not change the
underlying determination that he had not shown the requisite exceptional and
extremely unusual hardship. Further, the BIA did not err in focusing primarily
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on employment and health because those were the hardships Martinez Leon
specifically alleged that his son would suffer. And Martinez Leon did not
actually submit the academic article he argues the BIA should have considered.
Accordingly, because Martinez Leon’s arguments do not raise colorable
constitutional claims or questions of law, we lack jurisdiction and dismiss the
petition. See 8 U.S.C. §§ 1229b(b), 1252(a)(2)(B), (D); Barco-Sandoval, 516 F.3d at
39–40; Sepulveda, 407 F.3d at 64.
For the foregoing reasons, the petition for review is DISMISSED. All
pending motions and applications are DENIED and stays VACATED.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
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