20-586(L) Mazariegos 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 23rd day of April, two thousand twenty-one.

PRESENT: Guido Calabresi, Steven J. Menashi, Circuit Judges, John G. Koeltl, District Judge. * ____________________________________________

RAUL MAZARIEGOS, AKA RAUL SANDOVAL ALALRCON, AKA MARIO ROLANDO MARTINEZ,

Petitioner,

* Judge John G. Koeltl, United States District Judge for the Southern District of New York, sitting by designation. v. No. 20-586(L), 20-1922(Con)

MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL,

Respondent. † ____________________________________________

For Petitioner: S. Bernard Schwarz, S. Bernard Schwarz & Associates, New York, NY.

For Respondent: Jeffrey Bossert Clark, Acting Assistant Attorney General; Claire L. Workman, Assistant Director; Edward C. Durant, Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.

UPON DUE CONSIDERATION of these petitions for review of Board of

Immigration Appeals (“BIA”) decisions, it is hereby ORDERED, ADJUDGED, and

DECREED that the lead petition is DISMISSED and the consolidated petition is

DENIED.

† The Clerk of Court is directed to amend the caption as set forth above.

2 Petitioner Raul Mazariegos, a native and citizen of Guatemala, seeks review

of a January 17, 2020, decision of the BIA affirming an April 17, 2018, decision of

an Immigration Judge (“IJ”) denying Mazariegos’s application for cancellation of

removal, and a June 11, 2020 decision of the BIA denying his motion to reopen. In

re Raul Mazariegos, No. A 097 519 228 (B.I.A. Jan. 17, 2020), aff’g No. A 097 519 228

(Immig. Ct. Apr. 17, 2018); In re Raul Mazariegos, No. A 097 519 228 (B.I.A. Jun. 11,

2020). We assume the parties’ familiarity with the underlying facts and procedural

history.

I

We dismiss the lead petition, No. 20-586, for lack of jurisdiction.

Mazariegos challenges the denial of cancellation of removal. To obtain

cancellation, he had to establish, among other requirements, that his removal

“would result in exceptional and extremely unusual hardship to” a qualifying

relative—here, his three children. 8 U.S.C. § 1229b(b)(1). Our review is limited to

the hardship determination because the BIA affirmed the IJ’s decision on that

ground alone. See Xue Hong Yang v. U.S. Dep’t of Justice,

(2d Cir.

2005). Our jurisdiction to review the denial of cancellation of removal based on an

applicant’s failure to satisfy the hardship requirement is limited to constitutional

3 claims and questions of law. See

(a)(2)(B)(i), (D); Barco-Sandoval v.

Gonzales,

(2d Cir. 2008).

Hardship requires a nonpermanent resident to demonstrate that “qualifying

relatives would suffer hardship that is substantially different from, or beyond, that

which would normally be expected from the deportation of an alien with close

family members.” In re Monreal-Aguinaga,

(B.I.A. 2001).

Mazariegos’s argument—that the agency overlooked the economic impact

of his departure on the children, who will stay in the United States if he is removed,

and the indirect effect that their mother’s stress and economic burden will cause

the children—is not colorable. The record here reflects that the agency considered

all the evidence. To the extent that Mazariegos disputes the agency’s factual

findings and exercise of discretion, these are not reviewable. See Barco-Sandoval,

.

II

We deny the consolidated petition, No. 20-1922, in which Mazariegos

challenges the BIA’s denial of his motion to reopen.

We review the denial of the motion for abuse of discretion. See Zhao Quan

Chen v. Gonzales,

(2d Cir. 2007).

4 Mazariegos’s brief does not address the grounds on which the BIA denied

his motion. He argues that the IJ failed to provide a reasoned decision for not

closing his case when he requested prosecutorial discretion. This argument is

misplaced because he did not request administrative closure before the IJ and there

was no basis for the IJ to raise the issue given the Department of Homeland

Security’s determination it would not exercise prosecutorial discretion in

Mazariegos’s favor. Mazariegos has thus abandoned his challenge to the denial of

reopening. See Yueqing Zhang v. Gonzales,

, 546 n.7 (2d Cir. 2005). Even

were we to reach the BIA’s grounds for denying reopening, we would find no

abuse of discretion. Mazariegos sought reopening to pursue prosecutorial

discretion, but, as the BIA stated, Mazariegos can seek an exercise of that discretion

without administrative closure or reopening. See

(c)(2)(A);

(a). Mazariegos’s argument for reopening based on New York’s legislation

retroactively reducing sentences for class A misdemeanors was immaterial

because the BIA did not rely on his conviction in denying cancellation of removal.

***

5 For the foregoing reasons, the lead petition is DISMISSED and the

consolidated petition is DENIED.

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

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