Fernandez v. Holder

U.S. Court of Appeals for the Second Circuit
Fernandez v. Holder, 563 F. App'x 67 (2d Cir. 2014)

Fernandez v. Holder

Opinion

SUMMARY ORDER

Petitioner Jacqueline Del Carmen Fernandez, a native and citizen of the Dominican Republic, seeks review of the April 24, 2013, decision of the BIA denying her motion to reopen. In re Jacqueline Del Carmen Fernandez, No. A042 091 035 (B.I.A. Apr. 24, 2013). We assume the parties’ familiarity with the underlying facts and procedural history of the case.

We review the denial of a motion to reopen for abuse of discretion, Kaur v. BIA 413 F.3d 232, 233 (2d Cir. 2005) (per curiam), and when the BIA considers relevant evidence of country conditions in evaluating a motion to reopen, we review the BIA’s factual findings under the substantial evidence standard. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008). However, we lack jurisdiction to review any final order of removal against an alien “who is removable by reason of having committed” an aggravated felony. 8 U.S.C. § 1252(a)(2)(C). Where review of the underlying removal order would be prohibited by § 1252(a)(2)(C), the jurisdictional bar has been extended to petitions seeking review of the BIA’s denial of a motion to reopen. See Durant v. INS, 393 F.3d 113, 115-16 (2d Cir. 2004). Notwithstanding these provisions, we nonetheless retain jurisdiction to review constitutional claims and “questions of law.” 8 U.S.C. § 1252(a)(2)(D).

In order to ascertain whether a petitioner raises constitutional challenges or questions of law over which we have jurisdiction, we “study the arguments asserted [and] ... determine, regardless of the rhetoric employed in the petition, whether *68 it merely quarrels over the correctness of the factual findings or justification for the discretionary choices, in which case the court would lack jurisdiction.” Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d Cir. 2006). In this case, Fernandez does not raise any constitutional claims or questions of law. Fernandez first argues that the BIA erred in determining that she did not establish a change in country conditions. A determination regarding whether the evidence submitted established a change in country conditions is a factual finding, and we lack jurisdiction to review it. See id. at 330. Fernandez also argues that the agency’s denial of her motion to reopen violated her due process right. However, Fernandez’s specific claim is that her due process right was violated because the BIA did not properly consider the evidence of changed country conditions. This argument “merely quarrels over the correctness of the factual findings.” See id. at 329.

Because the BIA’s conclusion that Fernandez did not establish changed country conditions was dispositive of her motion to reopen, we do not address her argument regarding her prima facie eligibility for relief.

For the foregoing reasons, the petition for review is DISMISSED.

Reference

Full Case Name
Jacqueline Del Carmen FERNANDEZ, AKA Jackeline Fernandez, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent
Status
Unpublished