Rose v. Garland

21-6498
Rose v. Garland
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 19th day of May, two thousand twenty-three.
PRESENT: Amalya L. Kearse,
Dennis Jacobs,
Steven J. Menashi,
Circuit Judges.
____________________________________________
MATTHEW O’DANIEL ROSE,
Petitioner,
v. No. 21-6498
MERRICK B. GARLAND,
UNITED STATES ATTORNEY GENERAL
Respondent. *
____________________________________________
* The Clerk of Court is directed to amend the caption as set forth above.
For Petitioner: Melissa M. Desvarieux, Desvarieux Law
Group, P.C., Long Island City, NY.
For Respondent: Brian M. Boynton, Principal Deputy Assistant
Attorney General, Civil Division; Kohsei
Ugumori, David J. Schor, Senior Litigation
Counsel, Office of Immigration Litigation, U.S.
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 Matthew O’Daniel Rose, a citizen of Jamaica, seeks review of an
August 13, 2021, decision of the BIA denying his motion to remand and affirming
a February 24, 2021, decision of an Immigration Judge (“IJ”) denying his
application for cancellation of removal. In re Matthew O Daniel Rose, No. A213 638
454 (B.I.A. Aug. 13, 2021), aff’g No. A213 638 454 (Immigr. Ct. N.Y.C. Feb. 24, 2021).
We assume the parties’ familiarity with the underlying facts and procedural
history.
We have reviewed the IJ’s decision as supplemented by the BIA. See Yan
Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). Our jurisdiction to review the
agency’s denial of discretionary relief, including cancellation of removal and
adjustment of status, is limited to “constitutional claims or questions of law.”
8 U.S.C. § 1252(a)(2)(B)(i), (D); Patel v. Garland, 142 S. Ct. 1614, 1627 (2022)
(“Federal courts lack jurisdiction to review facts found as part of discretionary-
relief proceedings under … provisions enumerated in § 1252(a)(2)(B)(i).”). Our
review of motions to remand, like motions to reopen, is similarly limited when
such motions are tied to discretionary relief. See Sepulveda v. Gonzales, 407 F.3d 59,
64 (2d Cir. 2005). Rose has not raised a reviewable constitutional claim or question
of law as to the denial of cancellation of removal or as to the denial of his motion
to remand.
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To obtain cancellation of removal, a nonpermanent resident such as Rose
must, as relevant here, “establish[] that removal would result in exceptional and
extremely unusual hardship to [his] spouse, parent, or child, who is a citizen of the
United States or an alien lawfully admitted for permanent residence.” 8 U.S.C.
§1229b(b)(1)(A)-(D). Before the IJ, Rose sought cancellation of removal based on
hardship to his American citizen daughter. We deem that claim abandoned
because Rose has not addressed it in his brief here. See Yueqing Zhang v. Gonzales,
426 F.3d 540, 545 n.1 (2d Cir. 2005) (concluding that an alien abandoned a claim
“by failing to discuss [it] anywhere in his brief”).
After the IJ’s decision denying cancellation of removal, Rose married his
daughter’s mother, who was a lawful permanent resident. Rose then argued
before the BIA that the matter should be remanded to the IJ for consideration of
cancellation of removal based on his new marital status and for him to apply to
adjust his status based on a visa petition that his wife had filed on his behalf. In
support of remand, Rose submitted his marriage certificate and a receipt from U.S.
Citizenship and Immigration Services (“USCIS”) for the visa petition that, if
granted, would allow him to apply to adjust to permanent resident status.
Rose has not identified a question of law regarding the BIA’s denial of
remand for further consideration of cancellation of removal. Although his
marriage meant that his wife became a qualifying relative for purposes of
cancellation, he did not present evidence of the hardship that his removal would
cause her. 8 U.S.C. § 1229b(b)(1)(D). A movant has the burden to establish prima
facie eligibility for the relief sought and to submit evidence to support a grant of
relief. See 8 U.S.C. § 1229a(c)(7)(B) (“The motion to reopen shall state the new facts
that will be proven at a hearing to be held if the motion is granted, and shall be
supported by affidavits or other evidentiary material.”); Li Yong Cao v. DOJ, 421
F.3d 149, 156 (2d Cir. 2005) (“A motion to remand that relies on newly available
evidence is held to the substantive requirements of a motion to reopen.”); Jian Hui
Shao v. Mukasey, 546 F.3d 138, 168 (2d Cir. 2008) (holding that a movant’s “ability
to secure reopening depends on a demonstration of prima facie eligibility for [relief
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from removal], which means she must show a ‘realistic chance’ that she will be
able to obtain such relief”). Although he asserts that the agency failed to consider
evidence, he does not identify what evidence was overlooked and he did not
attach additional evidence to his motion.
Nor has Rose identified a question of law regarding the BIA’s denial of
remand to allow him to apply to adjust status. Although the BIA did not list the
reasons that Rose was ineligible to adjust, Rose has not identified why he would
have been eligible. At the time of the BIA’s decision, the visa petition had not been
approved and an immediately available visa is a prerequisite to adjustment.
8 U.S.C. § 1255(a). Moreover, because Rose’s wife was a lawful permanent resident
rather than an American citizen at the time of the BIA’s decision, there were
additional barriers to eligibility because visas for spouses of lawful permanent
residents are limited and Rose had overstayed a prior visa. See 8 U.S.C.
§§ 1151(b)(2)(A)(i), 1255(a), (c)(2). And because he and his wife married after he
was ordered removed, Rose had the burden to prove that his marriage was entered
into in good faith and not for the purpose of procuring his admission as an
immigrant. 8 U.S.C. § 1255(e)(3), (1) (providing that an alien who marries while in
removal proceedings must establish by “clear and convincing evidence” that the
marriage was entered into in good faith). While Rose asserts that his wife is now
an American citizen, he has not documented that fact, and he must first present
that basis for adjustment to the BIA. See 8 U.S.C. § 1252(b)(4)(A) (“[T]he court of
appeals shall decide the petition only on the administrative record on which the
order of removal is based.”).
* * *
We have considered Rose’s remaining arguments, which we conclude are
without merit. For the foregoing reasons, we dismiss the petition for review for
lack of jurisdiction.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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