16-3958 Sandoval v. Barr BIA Buchanan, IJ A093 334 631

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 7th day of May, two thousand nineteen.

PRESENT: ROBERT A. KATZMANN, Chief Judge, ROSEMARY S. POOLER, SUSAN L. CARNEY, Circuit Judges. _____________________________________

SELVIN SANDOVAL,

Petitioner,

v. 16-3958 NAC

WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL,

Respondent. _____________________________________

FOR PETITIONER: Gisela Chavez-Garcia, New York, NY. FOR RESPONDENT: Chad A. Readler, Acting Assistant Attorney General; Russell J.E. Verby, Senior Litigation Counsel; Nancy Kwang Canter, Trial Attorney, Office of Immigration Litigation, United States 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 Selvin Sandoval, a native and citizen of

Guatemala, seeks review of an October 26, 2016, decision of

the BIA affirming an October 6, 2015, decision of an

Immigration Judge (“IJ”) denying Sandoval’s motion to reopen

his removal proceedings. In re Selvin Sandoval, No. A093 334

631 (B.I.A. Oct. 26, 2016), aff’g No. A093 334 631 (Immig.

N.Y. City Oct. 6, 2015). We assume the parties’ familiarity

with the underlying facts and procedural history in this case.

We review the denial of a motion to reopen for abuse of

discretion. Jian Hui Shao v. Mukasey,

(2d Cir. 2008). Where, as here, a motion to reopen is filed

to apply for cancellation of removal and argues ineffective

assistance of counsel, the dispositive analysis is whether

the movant established his prima facie eligibility for

2 cancellation. See INS v. Abudu,

(1988);

Rabiu v. INS,

(2d Cir. 1994). To demonstrate

eligibility for cancellation of removal, a nonpermanent

resident such as Sandoval must demonstrate that his “removal

would result in exceptional and extremely unusual hardship

to” his U.S.-citizen daughters. 8 U.S.C. § 1229b(b)(1)(D).

“‘[E]xceptional and extremely unusual hardship’

determinations by the [agency] are discretionary judgments.”

Barco-Sandoval v. Gonzales,

(2d Cir. 2008)

(quoting De La Vega v. Gonzales,

(2d

Cir. 2006)). Thus, our jurisdiction to review the agency’s

hardship determination, as well as the denial of a motion to

reopen, is limited to constitutional claims and questions of

law.

(a)(2)(B), (D); Barco-Sandoval,

(hardship determinations); Mariuta v. Gonzales,

(2d Cir. 2005)(motion to reopen).

Although a question of law may arise when “some facts

important to the subtle determination of ‘exceptional and

extremely unusual hardship’ have been totally overlooked and

others have been seriously mischaracterized,” Mendez v.

Holder,

(2d Cir. 2009), Sandoval failed to

identify any such errors in the agency’s hardship ruling.

3 Moreover, the agency applied the correct standard and

considered Sandoval’s hardship evidence, including a

pediatrician’s letter concerning the asthma of one of his

daughters. In re Gonzalez Recinas,

(B.I.A. 2002) (In making a hardship determination,

“consideration should be given to the age, health, and

circumstances of the qualifying family members, including how

a lower standard of living or adverse country conditions in

the country of return might affect those relatives.”).

Sandoval does not challenge the agency’s factual findings

that he is not his daughters’ primary caregiver, that he does

not live with them or visit them often, and that he provided

no evidence that they would accompany him to Guatemala or

that his daughter’s asthma could not be effectively treated

there.

Sandoval asserts that some supporting documentation was

withheld by his prior counsel, but he did not raise this

argument before the BIA and provides no description of the

allegedly withheld documents. In any event, our review is

limited to the administrative record on which the agency’s

decision was based.

(b)(4)(A).

4 For the foregoing reasons, Sandoval’s petition for review

is DISMISSED.

FOR THE COURT: Catherine O’Hagan Wolfe Clerk of Court

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