Barrientos Palacios v. Garland

22-6494
Barrientos Palacios 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.
1 At a stated term of the United States Court of Appeals for the Second Circuit,
2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
3 New York, on the 30th day of November, two thousand twenty-three.
4
5 PRESENT:
6 GERARD E. LYNCH,
7 MICHAEL H. PARK,
8 EUNICE C. LEE
9 Circuit Judges.
10 _____________________________________
11
12 Leonel Arnoldo Barrientos Palacios,
13 Mildred Yojana Orellana Tejada,
14
15 Petitioners,
16
17 v. 22-6494
18
19 Merrick B. Garland,
20 United States Attorney General,
21
22 Respondent.
23 _____________________________________
24
25 FOR PETITIONERS: Usman B. Ahmad, Long Island City, NY.
26
27 FOR RESPONDENT: Brian M. Boynton, Principal Deputy Assistant,
28 Attorney General; Dawn S. Conrad, Senior
29 Litigation Counsel; A. Ashley Arthur, Trial
30 Attorney, Office of Immigration Litigation, United
31 States Department of Justice, Washington, DC.
32
1 UPON DUE CONSIDERATION of this petition for review of a Board of Immigration
2 Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND DECREED that the
3 petition for review is DISMISSED.
4 Petitioners Barrientos Palacios and Orellana Tejada (“Petitioners”), natives and citizens of
5 Guatemala, seek review of a September 19, 2022 decision of the BIA affirming a December 18,
6 2018 decision of an Immigration Judge (“IJ”) denying their application for cancellation of removal
7 for certain non-permanent residents. In re Barrientos Palacios, Nos. A099 089 711/205 218 832
8 (B.I.A. Sept. 19, 2022), aff’g No. A099 089 711 (Immigr. Ct. N.Y.C. Dec. 18, 2018). We assume
9 the parties’ familiarity with the underlying facts and procedural history.
10 We have reviewed the IJ’s decision as supplemented by the BIA. See Chen v. Gonzales,
11 417 F.3d 268, 271 (2d Cir. 2005). When applying for cancellation of removal, Petitioners bear
12 the burden to prove eligibility for relief from removal and to establish that they merit a favorable
13 exercise of discretion. See 8 U.S.C. § 1229a(c)(4)(A). Statutory eligibility for cancellation of
14 removal requires that Petitioners show, among other elements, that their “removal would result in
15 exceptional and extremely unusual hardship” to their lawful permanent resident or U.S. citizen
16 spouse, parent, or child. See 8 U.S.C. § 1229b(b)(1). The BIA concluded that Petitioners did
17 not establish the requisite hardship to their qualifying relatives. The BIA also declined to exercise
18 its discretion in favor of Petitioners. It noted that it had considered Petitioners’ “favorable
19 equities,” including Orellana Tejada’s lack of criminal history, Barrientos Palacios’s steady
20 employment history, and both Petitioners’ support to their children, but “the dearth of candor, and
21 the gravity of the allegations of sexual abuse of a minor against [Barrientos Palacios], weigh
22 against a favorable exercise of discretion.”
2
1 Our jurisdiction to review the agency’s denial of cancellation of removal is limited to
2 colorable legal or constitutional error. See 8 U.S.C. § 1252(a)(2)(B)(i), (D); Barco-Sandoval v.
3 Gonzales, 516 F.3d 35, 40-41 (2d Cir. 2007). “[W]e are obliged to dismiss any claim [] that
4 essentially disputes the correctness of the agency’s factfinding or the wisdom of its exercise of
5 discretion.” Hernandez v. Garland, 66 F. 4th 94, 101 (2d Cir. 2023) (alteration in original)
6 (citation and internal quotation marks omitted).
7 Here, the BIA gave two independent reasons for denying cancellation of removal: (1) that
8 Petitioners failed to demonstrate the required hardship to their U.S.-citizen children, and (2) that
9 they did not merit cancellation as a matter of discretion.
10 Petitioners do not challenge the latter conclusion. Thus, we deem any such challenge
11 abandoned. See Zhang v. Gonzales, 426 F.3d 540, 541 n.1 (2d Cir. 2005) (finding claim
12 abandoned when it was not raised in petitioner’s brief). The decision to deny cancellation as a
13 matter of discretion is an independent and dispositive ground for denying this form of relief. See
14 8 U.S.C. § 1229b(b)(1) (stating that the agency “may” cancel removal of an applicant who satisfies
15 eligibility requirements); Rodriguez v. Gonzales, 451 F.3d 60, 62 (2d Cir. 2006) (“[A]ssuming an
16 alien satisfies the statutory requirements, the Attorney General in his discretion decides whether
17 to grant or deny relief.”).
18 Moreover, that decision is a matter of discretion that we lack jurisdiction to review. See
19 8 U.S.C. § 1252(a)(2)(B)(i); see also Rodriguez, 451 F.3d at 62 (stating that “we have no
20 jurisdiction to review the . . . discretionary determinations concerning either cancellation of
21 removal or adjustment of status”). Because the agency’s discretionary denial of relief, which we
3
1 may not review and which in any event Petitioners do not challenge, is dispositive of their
2 application, we need not consider their challenge to the agency’s decision on eligibility.
3 For the foregoing reasons, the petition for review is DISMISSED.
4
5 FOR THE COURT:
6 Catherine O’Hagan Wolfe, Clerk of Court
4