Otavalo Montoya v. Lynch

14-2635-ag
Otavalo Montoya v. Lynch
BIA
Straus, IJ
A055 462 268
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 TO 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 21st day
of July, two thousand fifteen.
PRESENT:
ROSEMARY S. POOLER,
RAYMOND J. LOHIER, JR.,
CHRISTOPHER F. DRONEY,
Circuit Judges.
_____________________________________
CARMEN GERMANIA OTAVALO MONTOYA,
Petitioner,
v. 14-2635-ag
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,
Respondent.1
_____________________________________
FOR PETITIONER: Kevin E. Dehghani, New Haven, CT.
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Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney
General Loretta E. Lynch is automatically substituted for former
Attorney General Eric H. Holder, Jr.
FOR RESPONDENT: Robbin K. Blaya, Trial Attorney, Office of
Immigration Litigation (Joyce R.
Branda, Acting Assistant Attorney
General, Civil Division; Mary Jane
Candaux, Assistant Director, Office of
Immigration Litigation, on the brief),
United States Department of Justice,
Washington, D.C.
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 DENIED in part
and DISMISSED in part.
Petitioner Carmen Germania Otavalo Montoya, a native and citizen
of Ecuador, seeks review of a June 27, 2014 decision of the BIA
affirming the December 17, 2012 decision of an Immigration Judge
(“IJ”) denying her applications for a waiver and voluntary departure.
In re Carmen Germania Otavalo Montoya, No. A055 462 268 (B.I.A. June
27, 2014), aff’g No. A055 462 268 (Immig. Ct. Hartford Conn. Dec.
17, 2012). Under the circumstances of this case, we review the IJ’s
decision as modified by the BIA. See Xue Hong Yang v. U.S. Dep’t of
Justice, 426 F.3d 520, 522 (2d Cir. 2005). We assume the parties’
familiarity with the underlying facts and procedural history in this
case.
An alien granted conditional permanent residence based on her
marriage to a U.S. citizen must jointly petition with her spouse to
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remove the conditional basis of her residence. Id. § 1186a(c)(1).
The agency may waive the joint petitioning requirement if, inter alia,
the alien demonstrates that “extreme hardship would result” if she
were removed. 8 U.S.C. § 1186a(c)(4)(A). We have not yet decided
if the determination of whether an alien is eligible for a hardship
waiver under Section 1186(c)(4) is committed to the discretion of
the agency. See Contreras-Salinas v. Holder, 585 F.3d 710, 713 (2d
Cir. 2009). The majority of our sibling circuits to have considered
this issue have held that the agency’s determination of a petitioner’s
eligibility under Section 1186(c)(4) is a non-discretionary decision
and therefore subject to judicial review. See Johns v. Holder, 678
F.3d 404, 407 (6th Cir. 2012); Singh v. Holder, 591 F.3d 1190, 1193—97
(9th Cir. 2010); Nguyen v. Mukasey, 522 F.3d 853, 854—55 (8th Cir.
2008); Cho v. Gonzales, 404 F.3d 96, 99—102 (1st Cir. 2005). But see
Assaad v. Ashcroft, 378 F.3d 471, 475 (5th Cir. 2004) (holding
eligibility determination cannot be reviewed); Urena–Tavarez v.
Ashcroft, 367 F.3d 154, 159–60 (3d Cir. 2004) (same). We reserve this
question for another day, as here the agency plainly did not err in
determining that Otavalo Montoya failed to demonstrate extreme
hardship. See Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332,
338 n.2 (“Our assumption of jurisdiction to consider first the merits
is not barred where the jurisdictional constraints are imposed by
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statute, not the Constitution, and where the jurisdictional issues
are complex and the substance of the claim is, as here, plainly without
merit.”). As the agency found, Otavalo Montoya’s evidence indicated
that the “hardship involved is not significantly greater than that
which would be experienced by any other alien who is removed to her
home country.” App’x at 3; see 8 C.F.R. § 216.5(e)(1).
We lack jurisdiction to review the agency’s denial of voluntary
departure. 8 U.S.C. § 1229c(f). However, we are not precluded from
reviewing constitutional claims or questions of law. Carcamo v. U.S.
Dep’t of Justice, 498 F.3d 94, 97 (2d Cir. 2007). Otavalo Montoya
contends that the IJ erred by taking into account a prior finding
that her marriage was not bona fide. But this argument “merely
quarrels over the . . . justification for the [IJ’s] discretionary
choices” and presents neither a constitutional claim nor a legal
question. Id. at 98 (internal quotation marks omitted). In any
event, the agency did not rely on this finding in its affirmance.
Rather, the agency agreed with the IJ that even if Otavalo Montoya
met the statutory requirements for voluntary departure, she did not
warrant relief as an exercise of discretion because she declined to
answer questions posed by the government about her marriage — an issue
the IJ found relevant to the exercise of discretion. Otavalo Montoya
also argues that in relying on her refusal to so testify the IJ and
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the agency committed legal error. However, Otavalo Montoya bore the
burden to show that she warranted voluntary departure, see 8 C.F.R.
§ 1240.8(d); the IJ reasonably concluded that she failed to meet her
burden when she declined to offer such testimony in support of her
application. Accordingly, Otavalo Montoya has not raised a colorable
claim that the agency erred in denying her application for voluntary
departure as a matter of discretion. See 8 U.S.C. § 1229c(f);
Barco-Sandoval v. Gonzales, 516 F.3d 35, 40-41 (2d Cir. 2008).
For the foregoing reasons, the petition for review is DENIED
in part, as to review of the denial of the hardship waiver, and
DISMISSED in part, as to review of the denial of voluntary departure.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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