Cedillo v. Lynch

13-331
Cedillo v. Lynch
BIA
A089 014 724
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 24th day of June, two thousand sixteen.
5
6 PRESENT:
7 BARRINGTON D. PARKER,
8 DEBRA ANN LIVINGSTON,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _____________________________________
12
13 CARLOS VINICIO CEDILLO, AKA CARLOS
14 CEDILLO,
15 Petitioner,
16
17 v. 13-331
18 NAC
19 LORETTA E. LYNCH, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Justin Conlon, Law Offices of Justin
25 Conlon, Hartford, CT.
26
27 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
28 General; Anthony W. Norwood, Senior
29 Litigation Counsel; Manuel Palau,
1 Trial Attorney, Office of
2 Immigration Litigation, United
3 States Department of Justice,
4 Washington, D.C.
5
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review
9 is DISMISSED.
10 Petitioner Carlos Vinicio Cedillo, a native and citizen
11 of Ecuador, seeks review of a January 3, 2013 decision of
12 the BIA denying his timely motion to reopen to seek
13 voluntary departure. In re Carlos Vinicio Cedillo, No. A089
14 014 724 (B.I.A. Jan. 3, 2013). We assume the parties’
15 familiarity with the underlying facts and procedural history
16 in this case.
17 We review the BIA’s denial of a motion to reopen for
18 abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517
19 (2d Cir. 2006) (per curiam). “A motion to reopen
20 proceedings shall not be granted unless it appears to the
21 Board that evidence sought to be offered is material and was
22 not available and could not have been discovered or
23 presented at the former hearing.” 8 C.F.R. § 1003.2(c)(1).
24 Failure to offer such evidence is, therefore, a proper
25 ground on which the BIA may deny a motion to reopen, as is
2
1 the movant’s failure to establish a prima facie case for the
2 underlying substantive relief sought. INS v. Abudu, 485
3 U.S. 94, 104-05 (1988). In addition, where the ultimate
4 relief is discretionary, “the BIA may leap ahead, as it
5 were, over the two threshold concerns (prima facie case and
6 new evidence[]), and simply determine that even if they were
7 met, the movant would not be entitled to the discretionary
8 grant of relief.” Id. at 105.
9 We are “barred by statute from reviewing the denial of
10 a request for voluntary departure.” See Carcamo v. U.S.
11 Dep’t of Justice, 498 F.3d 94, 97 (2d Cir. 2007) (citing 8
12 U.S.C. § 1229c(f) (“No court shall have jurisdiction over an
13 appeal from denial of a request for an order of voluntary
14 departure . . . .”); 8 U.S.C. § 1252(a)(2)(B)(i) (depriving
15 courts of jurisdiction to review “any judgment regarding the
16 granting of relief under section ... 1229c[, which governs
17 grants of voluntary departure”])). Nevertheless, we retain
18 jurisdiction to review constitutional claims and questions
19 of law. 8 U.S.C. § 1252(a)(2)(D). A “petitioner cannot . .
20 . secure review by using the rhetoric of a ‘constitutional
21 claim’ or ‘question of law’ to disguise what is essentially
22 a quarrel about fact-finding or the exercise of discretion.”
3
1 Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d
2 Cir. 2006).
3 Cedillo’s argument, that the BIA engaged in
4 impermissible fact-finding by concluding that the dismissal
5 of his charges under a pretrial diversion program did not
6 outweigh his serious criminal activity, “merely quarrels
7 over the correctness of the . . . justification for [the
8 BIA’s] discretionary choice[].” Id. As noted above, the
9 BIA may deny a motion to reopen based on its own
10 determination that “the movant would not be entitled to the
11 [underlying] discretionary grant of relief” sought. Abudu,
12 485 U.S. at 105. Cedillo’s contention, in reliance on
13 Padmore v. Holder, 609 F.3d 62, 67 (2d Cir. 2010), that the
14 BIA was not free to determine that he had engaged serious
15 criminal activity because the IJ had merely observed that
16 Cedillo had serious charges pending, is misplaced. Padmore
17 concerned an appeal from an IJ’s decision to the BIA, see
18 id. at 64, and we have recognized that the BIA will properly
19 engage in fact-finding when, as here, it is deciding a
20 motion to reopen. See, e.g., Jian Hui Shao v. Mukasey, 546
21 F.3d 138, 168 (2d Cir. 2008); Li Yong Cao v. Dep’t of
22 Justice, 421 F.3d 149, 151, 156 (2d Cir. 2005). See also 8
4
1 C.F.R. § 1003.1(d)(3)(iv) (“Except for taking administrative
2 notice of commonly known facts such as current events or the
3 contents of official documents, the Board will not engage in
4 factfinding in the course of deciding appeals.”) (emphasis
5 added)).
6 For the foregoing reasons, the petition for review is
7 DISMISSED. The pending request for oral argument in this
8 petition is DENIED in accordance with Federal Rule of
9 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
10 34.1(b).
11 FOR THE COURT:
12 Catherine O’Hagan Wolfe, Clerk
13
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