Borohov v. Garland

22-6385
Borohov 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 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 11th day of October, two thousand twenty-three.
PRESENT:
DENNIS JACOBS,
RICHARD C. WESLEY,
BETH ROBINSON,
Circuit Judges.
_____________________________________
Gavriel Borohov, Oksana Borochov,
Petitioners,
v. No. 22-6385
Merrick B. Garland, United States Attorney
General,
Respondent.
_____________________________________
FOR PETITIONERS: ALLISON N. GROSZ, Bibicheff &
Associates, P.C., Brooklyn, NY.
FOR RESPONDENT: JULIA J. TYLER, Acting Senior
Litigation Counsel, Office of
Immigration Litigation, Civil
Division (Brian Boynton,
Assistant Attorney General, Tim
Ramnitz, Senior Litigation
Counsel, Shelley R. Goad,
Assistant Director, on the brief), for
Merrick B. Garland, United States
Attorney General, 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 DISMISSED.
Petitioners Gavriel Borohov and Oksana Borochov—husband and wife,
natives of Uzbekistan, and citizens of Israel—petition for review of a decision of
the BIA affirming an immigration judge’s (“IJ”) denial of their applications for
cancellation of removal. In re Gavriel Borohov and Oksana Borochov, Nos. A099 591
491, A205 614 488 (B.I.A. July 12, 2022), aff’g id., (Immig. Ct. N.Y. City Apr. 12,
2019). We assume the parties’ familiarity with the underlying facts and
procedural history.
We review the IJ’s decision as modified and supplemented by the BIA, and
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we therefore consider only the agency’s denial of relief on the basis of hardship.
See Xue Hong Yang v. U.S. Dep’t of Just., 426 F.3d 520, 522 (2d Cir. 2005); Yan Chen
v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). Noncitizens who do not have
permanent resident status may have their removal cancelled if, among other
things, they “establish[] that removal would result in exceptional and extremely
unusual hardship” to a qualifying relative. 8 U.S.C. § 1229b(b)(1)(D). Here,
Petitioners’ qualifying relative is their U.S. citizen daughter. The hardship to a
qualifying relative “must be substantially beyond the ordinary hardship that
would be expected when a close family member leaves this country.” In re
Monreal-Aguinaga, 23 I. & N. Dec. 56, 62 (B.I.A. 2001). 1 Relevant factors include
“the age[], health, and circumstances” of the qualifying relative. Id. at 63. A
“strong applicant might have a qualifying child with very serious health issues, or
compelling special needs in school.” Id. But “a lower standard of living or
adverse country conditions in the country of return” are generally “insufficient in
themselves to support a finding of exceptional and extremely unusual
hardship.” Id. at 63–64.
1 In quotations from case law and the parties’ briefing, this order will omit all internal
quotation marks, alterations, footnotes, and citations, unless otherwise noted.
3
Our jurisdiction to review the denial of cancellation of removal is limited to
“constitutional claims or questions of law.” 2 8 U.S.C. § 1252(a)(2)(B)(i), (D); Patel
v. Garland, 142 S. Ct. 1614, 1622, 1627 (2022); see also Guerrero-Lasprilla v. Barr, 140
S. Ct. 1062, 1072 (2020) (“The statutory term ‘questions of law’ includes the
application of a legal standard to established facts.”). A question of law may arise
if the agency applies the wrong legal standard, considers a prohibited factor, or
“totally overlook[s]” or “seriously mischaracterize[s]” facts relevant for the
hardship determination. Mendez v. Holder, 566 F.3d 316, 323 (2d Cir. 2009); see also
Barco-Sandoval v. Gonzales, 516 F.3d 35, 39 (2d Cir. 2007); Argueta v. Holder, 617 F.3d
109, 113 (2d Cir. 2010). Petitioners have not raised a colorable constitutional claim
or question of law.
We reject Petitioners’ first argument that the BIA applied the wrong
standard of review when it dismissed their appeal. Petitioners contend that
because the facts of the case were not in dispute, the BIA should have reviewed
the IJ’s determination de novo rather than for clear error. But in its decision, the
2 We recognize that the Supreme Court recently granted certiorari on the question of whether
a court of appeals has jurisdiction to review the agency’s hardship determination pursuant to 8
U.S.C. § 1252(a)(2)(D). See Wilkinson v. Garland, 143 S. Ct. 2687 (2023). However, at oral
argument, Petitioners conceded that they do not seek our review of the agency’s weighing of the
hardship factors. They only seek our review of whether the agency failed to follow the proper
mode of analysis, thereby raising a “question of law” under § 1252(a)(2)(D).
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BIA stated the correct standard—that it reviews an IJ’s factual findings for clear
error and issues of law and discretion de novo. See 8 C.F.R. § 1003.1(d)(3)(i), (ii).
Nothing in its subsequent discussion suggests that it applied a different standard.
With respect to the ultimate question, the BIA did not defer to the IJ. To the
contrary, the BIA concluded, “We will affirm the Immigration Judge’s decision to
deny cancellation of removal because the respondents did not establish that their
return to Israel would result in exceptional and extremely unusual hardship to
their United States citizen child.” Spec. App’x 3.
Moreover, after concluding that the Immigration Judge’s factual findings
were not clearly erroneous, the BIA itself assessed the hardship question in light
of those facts. For this reason, Petitioners’ claim that the BIA improperly deferred
to the IJ is not supported by the record and does not raise a colorable question of
law. See Barco-Sandoval, 516 F.3d at 40 (“While the argument that a discretionary
decision was based on a legally erroneous standard raises a question of law, we
lack jurisdiction to review any legal argument that is so insubstantial and frivolous
as to be inadequate to invoke federal-question jurisdiction.”).
Petitioners’ second argument is that the IJ failed to consider the hardship
factors in the aggregate, and the BIA failed to adequately respond to their
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argument on that point. Their contention is contradicted by the record. When
the IJ found that Petitioners did not show their removal to Israel would cause
exceptional and extremely unusual hardship to Petitioners’ U.S. citizen daughter,
the IJ accurately described the record. The IJ acknowledged that Petitioners’
daughter has asthma, eczema, depression, anxiety, allergies, and a learning
disability, and that she has never been to Israel. The IJ identified the following
countervailing factors: Petitioners’ daughter speaks Hebrew, has a large family in
Israel, would have access to healthcare for her medical conditions there, and
would not experience any exceptional or extremely unusual diminution in
educational opportunities. The IJ stated the correct legal standard, and the IJ’s
decision provides no reason to believe that the IJ failed to consider hardships in
the aggregate.
And the BIA explicitly considered and rejected the Petitioners’ argument
that the IJ failed to consider hardships in the aggregate. The BIA also recited all
of the above hardships to Petitioners’ daughter and acknowledged her anxiety
about the possibility of relocating to Israel. The fact that the BIA specifically
addressed Petitioners’ arguments that their daughter would suffer exceptional
and extremely unusual hardship based on her medical needs does not negate its
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recognition of all of the various hardship factors identified by Petitioners.
Moreover, contrary to the Petitioners’ argument, the IJ explained why he
did not find that their daughter would suffer exceptional and extremely unusual
hardship in Israel based on the record before him, and no further explanation was
required under the circumstances. See Wei Guang Wang v. BIA, 437 F.3d 270, 275
(2d Cir. 2006) (explaining that the agency need not “expressly parse or refute on
the record each individual argument or piece of evidence offered by the
petitioner,” as long as it “has given reasoned consideration to the petition, and
made adequate findings”).
Finally, to the extent that Petitioners argue that the BIA engaged in improper
factfinding, the BIA’s word choice characterizing the healthcare system available
in Israel as “comprehensive” does not meaningfully differ from the IJ’s finding
that this system was available to treat their daughter’s medical conditions.
In sum, although Petitioners have articulated various challenges to the legal
standard applied by the BIA, none is colorably supported by the record.
For the foregoing reasons, the petition for review is DISMISSED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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