Canales v. Barr

18-2538
Canales v. Barr
BIA
Christensen, IJ
A094 486 107
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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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 4th
day of December, two thousand nineteen.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
GUIDO CALABRESI,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
_____________________________________
MARTIL DE JESUS CANALES,
Petitioner,
v. 18-2538-ag
WILLIAM P. BARR, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: STEPHEN N. PREZIOSI, Law Office of
Stephen N. Preziosi, P.C., New York,
NY.
FOR RESPONDENT: TIMOTHY G. HAYES, Trial Attorney (Joseph
H. Hunt, Assistant Attorney General;
Cindy S. Ferrier, Assistant Director,
on the brief), for the 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 Martil De Jesus Canales (“Canales”), a native and
citizen of El Salvador, seeks review of an August 14, 2018 decision
of the BIA affirming a September 15, 2017 decision of an
Immigration Judge (“IJ”) denying Canales’s application for
cancellation of removal. In re Martil De Jesus Canales, No. A 094
486 107 (B.I.A. Aug. 14, 2018), aff’g No. A 094 486 107 (Immig.
Ct. N.Y.C. Sept. 15, 2017). We assume the parties’ familiarity
with the underlying facts and procedural history in this case.
We have reviewed both the BIA’s and the IJ’s decisions.
Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.
2006). Our jurisdiction to review the agency’s denial of
cancellation of removal is limited to colorable constitutional
claims and questions of law. 8 U.S.C. §§ 1252(a)(2)(B)(i), (D);
Barco-Sandoval v. Gonzales, 516 F.3d 35, 39–40 (2d Cir. 2008).
A nonpermanent resident, such as Canales, may have his removal
cancelled if he (1) “has been physically present in the United
States for a continuous period of not less than 10 years,” (2) “has
been a person of good moral character during” those years, (3) has
not been convicted of certain offenses, and (4) demonstrates that
his “removal would result in exceptional and extremely unusual
hardship” to his U.S. citizen or lawful permanent resident spouse,
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parent, or child. 8 U.S.C. § 1229b(b)(1). The agency denied
relief based solely on a failure to show hardship.
Hardship is a high standard that requires a showing that the
“qualifying relatives would suffer hardship that is substantially
different from, or beyond, that which would normally be expected
from the deportation of an alien with close family members here.”
In re Monreal-Aguinaga, 23 I. & N. Dec. 56, 65 (BIA 2001); see
also In re Andazola-Rivas, 23 I. & N. Dec. 319, 322 (BIA 2002)
(noting that exceptional and extremely unusual hardship is a “very
high standard”). The agency considers, among other evidence, “the
ages, health, and circumstances of qualifying lawful permanent
resident and United States citizen relatives.” In re Monreal-
Aguinaga, 23 I. & N. Dec. at 63; see In re Andazola-Rivas, 23 I.
& N. Dec. at 323; see also In re Gonzalez Recinas, 23 I. & N. Dec.
467 (BIA 2002).
The agency’s hardship determination, reached after
consideration of the relevant factors and record evidence, is a
discretionary decision that we lack jurisdiction to review.
Barco-Sandoval, 516 F.3d at 42. Although a question of law may
arise if the agency overlooks material evidence, see Mendez v.
Holder, 566 F.3d 316, 323 (2d Cir. 2009), the record does not
support Canales’s argument that the IJ ignored the emotional
hardship that his removal would cause his qualifying relatives.
The IJ considered the documentary record and the testimony from
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Canales and his wife. The IJ acknowledged that Canales has a
close relationship with most of his children and that it would be
“emotionally difficult” for these children to be separated from
him. After considering all the factors, including that his family
relied on him for financial support and the health conditions of
his children and his spouse, the IJ ultimately decided that the
hardship would not be beyond what would be expected from a parent’s
removal. See In re Monreal-Aguinaga, 23 I. & N. Dec. at 62.
Accordingly, because the IJ considered the evidence, Canales’s
argument amounts to a challenge to the IJ’s factfinding and
discretionary choices, which we lack jurisdiction to review. See
Barco-Sandoval, 516 F.3d at 42.
Canales’s remaining arguments also fail. His argument that
the IJ did not have an adequate basis to determine that his
children could assist his wife in supporting his family does not
raise a question of law because Canales is challenging the
inferences that the IJ made based on the record — here, that if
Canales’s wife becomes sick in the future her children may have to
help support her. See Emokah v. Mukasey, 523 F.3d 110, 119 (2d
Cir. 2008); see also Siewe v. Gonzales, 480 F.3d 160, 167–68 (2d
Cir. 2007) (“Drawing inferences from direct and circumstantial
evidence is a routine and necessary task of any factfinder. The
very essence of [the factfinder’s] function is to select from among
conflicting inferences and conclusions that which it considers
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most reasonable.” (internal quotation marks omitted)). Canales’s
argument that the IJ erred by refusing to allow his children to
testify was not exhausted before the agency. Canales both failed
to object when the IJ disallowed his children’s testimony and
failed to raise the issue of his children’s testimony before the
BIA. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 121–
22 (2d Cir. 2007).
For the foregoing reasons, the petition for review is
DISMISSED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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