20-1842 Torres v. Garland BIA Christensen, IJ A206 999 080/085

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 September, two thousand twenty-one.

PRESENT: JOHN M. WALKER, JR., GUIDO CALABRESI, STEVEN J. MENASHI, Circuit Judges. _____________________________________

JOSE REMIGIO LITUMA TORRES, MARIA MAGDALENA MOLINA PIZARRO,

Petitioners,

v. 20-1842

MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL,

Respondent. _____________________________________

FOR PETITIONERS: H. Raymond Fasano, Esq, Youman, Madeo & Fasano, LLP, New York, NY.

FOR RESPONDENT: Bryan Boynton, Acting Assistant Attorney General; Russell J.E. Verby, Senior Litigation Counsel; John D. Williams, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.

UPON DUE CONSIDERATION of this petition for review of a

decision of the Board of Immigration Appeals (“BIA”), it is hereby

ORDERED, ADJUDGED, AND DECREED that the petition for review is

DISMISSED.

Petitioners Jose Remigio Lituma Torres and Maria Magdalena

Molina Pizarro, citizens of Ecuador, seek review of a May 21, 2020,

decision of the BIA, affirming an April 30, 2018, decision of an

Immigration Judge (“IJ”) denying their application for

cancellation of removal. See In re Jose Remigio Lituma Torres,

Maria Magdalena Molina Pizarro, Nos. A206 999 080/085 (B.I.A. May

21, 2020), aff’g Nos. A206 999 080/085 (Immig. Ct. N.Y. City Apr.

30, 2018). We assume the parties’ familiarity with the underlying

facts, procedural history, and issues on appeal.

Where, as here, “the BIA briefly affirms the decision of an

IJ and adopt[s] the IJ’s reasoning in doing so, we review the IJ’s

and the BIA’s decisions together.” Wangchuck v. DHS,

(2d Cir. 2006) (internal quotation marks omitted). Aliens

subject to removal may have their removal canceled if they meet

presence and character requirements and “establish[] that removal

would result in exceptional and extremely unusual hardship to

2 [their] spouse, parent, or child, who is a citizen of the United

States or an alien lawfully admitted for permanent residence.”

8 U.S.C. § 1229b(b)(1). This is a “very high standard,” Garcia v.

Garland,

, 83 (2d Cir. 2021), which will be met

only when the hardship to a qualifying relative is “substantially

beyond that which ordinarily would be expected to result from the

alien’s deportation,” In re Monreal-Aguinaga,

(B.I.A. 2001) (emphasis omitted). Our jurisdiction to review

the agency’s denial of cancellation of removal based on an

applicant’s failure to satisfy the hardship requirement is limited

to constitutional claims and questions of law.

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

(2d Cir. 2008) (“[W]e [are] deprived of jurisdiction to review

decisions under the [Immigration and Nationality Act] when the

petition for review essentially disputes the correctness of an

IJ’s fact-finding or the wisdom of his exercise of discretion.”).

We dismiss the petition for review because Petitioners have

failed to raise either a constitutional claim or question of law.

Petitioners argue that the IJ mischaracterized the record, failed

to consider critical evidence, and relied on speculation. These

claims are unsupported. The IJ carefully reviewed Petitioners’

claims and found that their allegations did not support a finding

3 of “exceptional and extremely unusual hardship” within the meaning

of the Immigration and Nationality Act. See Special App’x 7-10. In

arguing otherwise, Petitioners “merely summarize[] [their]

interpretation of the evidence and express[] [their] disagreement

with the IJ’s consideration of … the record evidence.” Arguello v.

Lynch,

(2d Cir. 2015). That disagreement is

not enough to bring the petition within our jurisdiction. See

Amarasinghe v. Barr,

, 15 (2d Cir. 2020)

(“[Q]uarrels about fact-finding or the exercise of discretion are

insufficient to establish a colorable legal or constitutional

claim.”) (internal quotation marks and alteration omitted); Sau

Mooi Chai v. Holder,

(2d Cir. 2012) (“Because

the Petitioners contest only the agency’s weighing of the evidence

of hardship, we lack jurisdiction to consider Petitioners’

challenge to the agency’s denial of cancellation of removal.”).

Petitioners further argue that the IJ and BIA erred by failing

to consider their hardship evidence cumulatively. This is also

incorrect. The IJ explained that he relied on “the record in its

entirety” in finding that Petitioners have not “met their burden

in showing that [their U.S. citizen son] would suffer exceptional

and extremely unusual hardship if they are removed.” Special App’x

10. Accordingly, there is “nothing in the record indicat[ing] that

4 the IJ considered each hardship in isolation, without ultimately

considering cumulative effect.” Barros v. Barr,

,

638 (2d Cir. 2020). Even if the IJ had erred by failing to consider

Petitioners’ hardship evidence cumulatively, that error was

corrected on appeal by the BIA, which expressly stated that it

“[c]onsider[ed] the factors of this case cumulatively” in

affirming the IJ’s decision. Special App’x 4; see Wangchuck,

(“[W]e review the IJ’s and BIA’s decisions together.”).

Because Petitioners fail to raise a colorable constitutional

or legal claim, we dismiss the petition. See

(a)(2)(B), (D); Barco-Sandoval, 516 F.3d at 39–40.

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

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