Victor Ferman v. Eric Holder, Jr. , 555 F. App'x 254 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-2106
VICTOR A. FERMAN, a/k/a Victor Alberto Ferman Molina,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: February 11, 2014 Decided: February 20, 2014
Before WILKINSON, KING, and SHEDD, Circuit Judges.
Petition dismissed in part, denied in part by unpublished per
curiam opinion.
Victor A. Ferman, Petitioner Pro Se. Michael Christopher Heyse,
Office of Immigration Litigation, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Victor A. Ferman, a native and citizen of El Salvador,
petitions for review of an order of the Board of Immigration
Appeals (“Board”) dismissing his appeal from the immigration
judge’s order and denying his motion to remand. Ferman’s
request for cancellation of removal under 8 U.S.C. § 1229b(b)(1)
(2012) was denied because he failed to show that his removal
would result in “exceptional and extremely unusual hardship” to
his qualifying relatives. We dismiss in part and deny in part
the petition for review.
Under 8 U.S.C. § 1252(a)(2)(B)(i) (2012), entitled
“Denials of discretionary relief,” “no court shall have
jurisdiction to review any judgment regarding the granting of
relief under section . . . 1229b,” which is the section
governing cancellation of removal. See Obioha v. Gonzales, 431
F.3d 400, 405 (4th Cir. 2005) (“It is quite clear that the
gatekeeper provision [of § 1252(a)(2)(B)(i)] bars our
jurisdiction to review a decision of the BIA to actually deny a
petition for cancellation of removal or the other enumerated
forms of discretionary relief.”). However, this court does have
jurisdiction over constitutional claims and questions of law. 8
U.S.C. § 1252(a)(2)(B)(i), (D). Jean v. Gonzales, 435 F.3d 475,
480 (4th Cir. 2006). “[A]n ‘exceptional and extremely unusual
hardship’ determination is a subjective, discretionary judgment
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that has been carved out of appellate jurisdiction.” Romero-
Torres v. Ashcroft, 327 F.3d 887, 888 (9th Cir. 2003). Indeed,
we have concluded that the issue of hardship is committed to
agency discretion and thus is not subject to appellate review.
Okpa v. INS, 266 F.3d 313, 317 (4th Cir. 2001).
Because Ferman does not raise a constitutional claim
or a question of law regarding the dismissal of his appeal from
the immigration judge’s order denying cancellation of removal,
we lack jurisdiction and dismiss in part the petition for
review.
A motion to remand in order to consider new evidence
that is filed while an appeal to the Board is pending is held to
the same legal standard as a motion to reopen. See Onyeme v.
INS, 146 F.3d 227, 234 (4th Cir. 1998). Such a motion must
state the new facts to be proven at a hearing and must be
supported by affidavits or other evidentiary material. See 8
C.F.R. § 1003.2(c)(1) (2013). Further, such motion shall not be
granted unless the evidence sought to be offered is material and
was not available and could not have been discovered or
presented at the former hearing. Id. The movant must also
demonstrate that the new evidence would likely change the result
in the case. See Matter of Coelho, 20 I. & N. Dec. 464, 473
(B.I.A. 1992). The Board’s denial of a motion to remand and
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reopen is reviewed for abuse of discretion. See Hussain v.
Gonzales, 477 F.3d 153, 155 (4th Cir. 2007).
We also recognize three independent grounds on which a
motion to reopen removal proceedings may be denied: “(1) the
alien has not established a prima facie case for the underlying
substantive relief sought; (2) the alien has not introduced
previously unavailable, material evidence; and (3) where relief
is discretionary, the alien would not be entitled to the
discretionary grant of relief.” Onyeme, 146 F.3d at 234 (citing
INS v. Abudu, 485 U.S. 94, 104-05 (1988)). We will reverse the
denial of a motion to reopen only if it is “arbitrary,
irrational, or contrary to law.” Mosere v. Mukasey, 552 F.3d
397, 400 (4th Cir. 2009) (internal quotation marks omitted).
We conclude that the Board did not abuse its
discretion. Ferman did not show that the new evidence was
previously unavailable. Nor did he show that the evidence
established a prima facie case for cancellation of removal.
Accordingly, we dismiss in part and deny in part the
petition for review. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
PETITION DISMISSED IN PART;
DENIED IN PART
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