20-1805 Miguel v. Garland

BIA Kolbe, IJ A206 223 340 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 31st day of August, two thousand twenty-one.

PRESENT: BARRINGTON D. PARKER, GERARD E. LYNCH, JOSEPH F. BIANCO, Circuit Judges. _____________________________________

CESAR ORLANDO MIGUEL, AKA ANTONIO ESCOBAR-MUNRROI, Petitioner,

v. 20-1805

MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Craig Relles, Law Office of Craig Relles, White Plains, NY.

FOR RESPONDENT: Brian M. Boynton, Acting Assistant Attorney General, Claire L. Workman, Senior Litigation Counsel, Maarja T. Luhtaru, 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 in

part and DENIED in part.

Petitioner Cesar Orlando Miguel, a native and citizen of

Guatemala, seeks review of a May 13, 2020 decision of the BIA

affirming a May 17, 2018 decision of an Immigration Judge (“IJ”),

which denied both his application for cancellation of removal and

his motion to remand for consideration of additional evidence. In

re Cesar Orlando Miguel, No. A206 223 340 (B.I.A. May 13, 2020),

aff’g No. A206 223 340 (Immigr. Ct. N.Y.C. May 17, 2018). We

assume the parties’ familiarity with the underlying facts and

procedural history.

We have reviewed the IJ’s decision as supplemented by the

BIA. See Yan Chen v. Gonzales,

(2d Cir. 2005).

For a nonpermanent resident like Miguel, the agency may cancel

removal where, in relevant part, the applicant “establishes that

removal would result in exceptional and extremely unusual hardship

to” a qualifying relative, here Miguel’s U.S. citizen daughters.

8 U.S.C. § 1229b(b)(1)(D). Our jurisdiction to review the denial

2 of cancellation on hardship grounds is limited to constitutional

claims and questions of law. See id. § 1252(a)(2)(B)(i), (D);

Barco-Sandoval v. Gonzales,

, 38–40 (2d Cir. 2008).

A question of law may arise where the agency “totally overlooked”

or “seriously mischaracterized” evidence, Mendez v. Holder,

(2d Cir. 2009), considered a prohibited factor,

Argueta v. Holder,

(2d Cir. 2010), or applied “a

legally erroneous standard,” Barco-Sandoval,

. We

dismiss the petition because Miguel has not raised a colorable

question of law and deny review of his due process claim.

Hardship is a high burden, requiring 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); see also In re

Andazola-Rivas,

(B.I.A. 2002) (noting

that exceptional and extremely unusual hardship is a “very high

standard”).

First, Miguel argues the agency “cherry-picked” evidence to

support its conclusion that his wife would be able to support their

daughters in the event of his removal and “fail[ed] to appreciate”

the severity of his daughters’ generalized anxiety and major

depressive disorders. Petitioner Br. at 18–19. These arguments

3 are belied by the record and do not raise a question of law

sufficient to invoke our jurisdiction. The BIA considered the

impact of Miguel’s wife’s health issues on her ability to care for

their daughters, but also considered the absence of medical

evidence regarding her condition and that she was able to rent a

room to a tenant, find part-time work, and obtain government

assistance while Miguel was detained. Miguel argues the agency

should have considered his testimony that his family would have to

leave their home. Miguel’s arguments amount to quarrels over the

weight afforded the evidence and the balancing of hardship factors,

which we cannot review. See Xiao Ji Chen v. U.S. Dep’t of Just.,

(2d Cir. 2006) (“[T]he weight to afford

. . . evidence lies largely within the discretion of the IJ.”

(internal quotation marks and brackets omitted)); see also

Argueta,

(distinguishing between consideration of

a prohibited factor, which raises a question of law, and balancing

of factors, which is an unreviewable factual determination).

Miguel’s claim that the agency “fail[ed] to appreciate” the

severity of his daughters’ mental health issues and

mischaracterized the evidence does not raise a question of law.

The IJ considered the daughters’ diagnoses, but weighed them

against the presence of their mother and other relatives in the

United States. See Xiao Ji Chen, 471 F.3d at 329–30.

4 Second, Miguel’s challenge to the BIA’s denial of his motion

to remand does not raise a colorable question of law. “A motion

to remand that relies on newly available evidence is held to the

substantive requirements of a motion to reopen.” Li Yong Cao v.

U.S. Dep’t of Just.,

(2d Cir. 2005). Thus, to

succeed on a motion to remand, an applicant must show that the new

evidence sought to be offered “is material and was not available

and could not have been discovered or presented at the former

hearing.”

(c)(1), (4) (2020). Miguel claims the

agency ignored and mischaracterized evidence of his daughter’s

worsening heart condition, his affidavit, and reports on the

Guatemalan healthcare system. But the BIA explicitly addressed

the cardiologist’s conclusion that Miguel’s daughter’s “cardiac

functions remain normal at this time.” Special App’x at 2 (quoting

the letter from the daughter’s cardiologist). And Miguel’s

affidavit does not add further detail demonstrating the worsening

of his daughter’s condition beyond the information contained in

the cardiologist’s letter. The BIA’s conclusion that this evidence

was insufficient to establish a “serious medical condition” was

not an error of law. Matter of J-J-G-,

(B.I.A. 2020) (requiring applicant to show qualifying relative has

a serious medical condition). Moreover, Miguel has not shown how

evidence regarding the Guatemalan healthcare system would have

5 changed the outcome of his proceedings given his testimony that

his wife and daughters would remain in the United States. See

(c)(1) (requiring “material” evidence for

reopening).

We do not reach Miguel’s unexhausted argument that the IJ

deprived him of due process by denying him the opportunity to give

an oral closing statement. See Lin Zhong v. U.S. Dep’t of Just.,

, 118–20, 122 (2d Cir. 2007) (discussing the

requirement of issue exhaustion in asylum cases). Had Miguel

exhausted the issue, however, we would find no error because Miguel

had the opportunity to file a written post-hearing brief with the

IJ.

For the foregoing reasons, the petition for review is

DISMISSED as to the denial of the application for cancellation of

removal and the motion to remand, and DENIED as to the claim of

denial of due process.

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

6