Lozada v. Holder

13-3922-ag
Lozada v. Holder
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 13th day of November, two thousand fourteen.
PRESENT:
JOHN M. WALKER, JR.,
JOSÉ A. CABRANES,
SUSAN L. CARNEY,
Circuit Judges.
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ALFREDO GEOBANNY LOZADA, AKA ALFREDO GIOVANNY
LOZADA, AKA ALFREDO G. LOZADA,
Petitioner,
-v.- No. 13-3922-ag
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
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FOR PETITIONER: H. RAYMOND FASANO, New York, NY.
FOR RESPONDENT: SIU P. WONG, Trial Attorney, Office of
Immigration Litigation, for Stuart F. Delery,
Assistant Attorney General, United States
Department of Justice, Washington, D.C.
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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.
Alfredo Geobanny Lozada, a native and citizen of Ecuador, seeks review of a September 19,
2013, decision of the BIA affirming the October 25, 2011, decision of an Immigration Judge (“IJ”)
denying his application for cancellation of removal. In re Alfredo Geobanny Lozada, No. A088 437 384
(BIA Sept. 19, 2013), aff ’g No. A088 437 384 (Immig. Ct. N.Y. City Oct. 25, 2011). We assume the
parties’ familiarity with the underlying facts and procedural history of this case.1
The Attorney General may cancel removal if an alien demonstrates, in relevant part, that he
“(A) has been physically present in the United States for a continuous period of not less than 10
years immediately preceding the date of such application; (B) has been a person of good moral
character during such period; (C) has not been convicted of [certain] offense[s] . . .; and
(D) establishes that removal would result in exceptional and extremely unusual hardship to [his]
spouse, parent, or child, who is a citizen of the United States . . . .” 8 U.S.C. § 1229b(b)(1).
Here, the IJ denied Lozada’s application for cancellation of removal on the grounds that he
failed to establish that he had continuously resided in the United States for the ten years prior to
being placed in removal proceedings, or that his removal would cause his U.S. citizen son exceptional
and extremely unusual hardship. CAR at 15–32. The IJ also found that, in light of Lozada’s two
DWI convictions and his arrest for assaulting a former girlfriend, Lozada did not warrant
cancellation as a matter of discretion. Id. The BIA, in dismissing Lozada’s appeal, agreed with the
IJ that Lozada had not established that his removal would cause exceptional and extremely unusual
hardship to his son. Because the hardship determination was “dispositive of the request for
cancellation of removal,” the BIA “d[id] not reach the IJ’s findings or arguments on appeal with
respect to the admission of Mr. Lozada’s criminal record, his good moral character, or the
continuous physicial presence required for cancellation of removal.” Id. at 4.
The BIA reviewed de novo the IJ’s determination of whether petitioner’s removal would result
in an “exceptional and extremely unusual hardship” to any of his qualifying relatives. Because the
BIA did not explicitly adopt the IJ’s decision in its analysis, we review only the BIA’s decision. See
Aliyev v. Mukasey, 549 F.3d 111, 115 (2d Cir. 2008). Accordingly, the only issue before us is the BIA’s
determination that Lozada failed to demonstrate that his removal would cause his U.S. citizen son
exceptional and extremely unusual hardship as required to establish eligibility for cancellation of
removal under 8 U.S.C. § 1229b(b)(1). Although we lack jurisdiction to review this finding by the
BIA, see 8 U.S.C. § 1252(a)(2)(B); Barco-Sandoval v. Gonzales, 516 F.3d 35, 38–40 (2d Cir. 2008), we
retain jurisdiction to review constitutional claims and questions of law, see 8 U.S.C. § 1252(a)(2)(D),
for which our review is de novo, see Pierre v. Holder, 588 F.3d 767, 772 (2d Cir. 2009). The only
1
“CAR” denotes the Certified Administrative Record.
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question of law for which we retain jurisdiction is, therefore, whether the BIA’s failure to address all
of the statutory requirements for cancellation of removal was legal error, such that this Court is
required to vacate and remand.
“As a general rule courts and agencies are not required to make findings on issues the
decision of which is unnecessary to the results they reach.” INS v. Bagamasbad, 429 U.S. 24, 25
(1976); Hibbert v. INS, 554 F.2d 17, 22 (2d Cir. 1977) (“[W]e see no reason to depart from the general
rule and require the immigration judge to arrive at purely advisory findings and conclusions as to
statutory eligibility.”). If an applicant for cancellation of removal fails to satisfy any requirement for
such discretionary relief, the BIA need not consider whether that applicant has satisfied any of the
other requirements. See Wellington v. Holder, 623 F.3d 115, 117 (2d Cir. 2010) (“Because Wellington is
ineligible for cancellation of removal on the basis of her criminal offense, we, like the BIA, need not
reach the question of whether she has accrued 10 years of continuous physical presence sufficient
to satisfy § 1229b(b)(1)(A).”). Accordingly, Lozada’s sole legal challenge to the agency’s denial of
cancellation of removal is without merit.
For the foregoing reasons, the petition for review is DENIED.
FOR THE COURT,
Catherine O’Hagan Wolfe, Clerk of Court
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