21-6256 Esquivel-Garcia 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 5th day of October, two thousand twenty-two.

PRESENT: SUSAN L. CARNEY, JOSEPH F. BIANCO, ALISON J. NATHAN, Circuit Judges. _____________________________________

DANIEL ESQUIVEL-GARCIA,

Petitioner,

v. 21-6256

MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL,

Respondent. _____________________________________

FOR PETITIONER: PAUL O’DWYER, Esq., Law Office of Paul O’Dwyer, P.C., New York, NY.

FOR RESPONDENT: JESSICA R. LESNAU, Trial Attorney, Office of Immigration Litigation (Lindsay Marshall, Julie M. Iversen, Senior Litigation Counsel, on the brief), for Brian Boynton, Principal Deputy Assistant Attorney General, 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.

Petitioner Daniel Esquivel-Garcia, a native and citizen of

Mexico, seeks review of an April 12, 2021 decision of the BIA,

affirming a December 7, 2018 decision of an Immigration Judge

(“IJ”) denying his application for cancellation of removal. In

re Daniel Esquivel-Garcia, No. A206 031 064 (B.I.A. Apr. 12, 2021),

aff’g No. A206 031 064 (Immig. Ct. N.Y. City Dec. 7, 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).

A noncitizen like Esquivel-Garcia, who is not a permanent resident,

may have his removal cancelled if, as relevant here, he

“establishes that removal would result in exceptional and

extremely unusual hardship to [his] 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)(D). For a

2 petitioner to be eligible for cancellation, the hardship to the

qualifying relative “must be substantially beyond the ordinary

hardship that would be expected when a close family member leaves

this country.” In re Monreal-Aguinaga,

(B.I.A. 2001) (internal quotation marks 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 colorable constitutional claims and

questions of law.

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

v. Gonzales,

(2d Cir. 2008).

Esquivel-Garcia argues that the agency misconstrued or

ignored evidence, applied a heightened standard when considering

evidence of criminal conditions, and failed to consider hardship

evidence cumulatively. These arguments are not colorable and for

that reason we are not vested with jurisdiction over his petition.

First, the agency did not “totally overlook[]” or “seriously

mischaracterize[]” important facts. Mendez v. Holder,

(2d Cir. 2009). Contrary to Esquivel-Garcia’s

contention, the agency did not find that his extended family will

financially support him in Mexico; rather, the agency determined

that they might ease his family’s transition. See In re Andazola-

Rivas,

(B.I.A. 2002) (recognizing that

3 adjustment to removal is more difficult without family members in

the country of removal). That finding was consistent with

Esquivel-Garcia’s testimony that he and his family would initially

stay at his mother’s house. And, contrary to his suggestion on

appeal, he did not raise a claim before the agency that his

children’s education would suffer because they will live in an

indigenous area. For that reason, the agency was not obligated

to give explicit consideration to evidence regarding educational

opportunities in such areas. See 8 U.S.C. § 1229a(c)(4)(A)(i)

(applicant bears burden of proof); Jian Hui Shao v. Mukasey,

(2d Cir. 2008) (“[W]e do not demand that the BIA

expressly parse or refute on the record each individual argument

or piece of evidence offered by the petitioner.” (internal

quotation marks omitted)).

The IJ did misquote Esquivel-Garcia as stating that violent

crimes did not typically occur in Zitácuaro. In fact, Esquivel-

Garcia testified that while violent crimes did not typically occur

in his hometown of Crescencio Morales, they did frequently occur

in Zitácuaro. However, Esquivel-Garcia conceded the argument in

his reply brief. Even if he had not, the IJ’s error does not rise

to the level of serious mischaracterization. The IJ concluded,

4 consistent with the evidence, that violent crimes were infrequent

in Esquivel-Garcia’s hometown.

Second, Esquivel-Garcia does not identify any error of law in

the agency’s decision declining to accept his late-filed evidence

concerning a recent violent incident that took place near his

hometown. See Dedji v. Mukasey,

(2d Cir. 2008)

(“[A]n IJ has broad discretion to set and extend filing deadlines

pursuant to

.”); see also Xiao Ji Chen v. U.S.

Dep’t of Just.,

(2d Cir. 2006)(providing that a

question of law may arise “where a discretionary decision is argued

to be an abuse of discretion because it was made without rational

justification or based on a legally erroneous standard”). He does

not make out a constitutional claim, for example, that the

evidentiary decision violated his due process rights, because the

IJ permitted him to testify about the incident discussed in that

evidence and considered it. See Garcia-Villeda v. Mukasey,

(2d Cir. 2008) (“Parties claiming denial of due

process in immigration cases must, in order to prevail, allege

some cognizable prejudice fairly attributable to the challenged

process.” (internal quotation marks omitted)); cf. Martinez Roman

v. Garland,

, at *7-*10 (2d Cir. Sept. 15, 2022)

5 (concluding that the IJ’s denial of a continuance to hear live

testimony from a noncitizen’s children was an abuse of discretion).

Further, the agency did not apply an erroneously heightened

legal standard by requiring him to show that his children would be

singled out for violent crime in Mexico. Rather, it appropriately

acknowledged crime conditions, noted that Esquivel-Garcia’s

extended family in Mexico generally had not suffered from crime,

and observed the lack of evidence as to how his young children

specifically would suffer hardship from general crime conditions.

See In re Andazola-Rivas, 23 I. & N. Dec. at 323 (“[T]he relative

level of hardship a person might suffer . . . must necessarily be

assessed, at least in part, by comparing it to the hardship others

might face.”).

Finally, contrary to Esquivel-Garcia’s assertion, the IJ

explicitly considered the claimed hardships cumulatively. See In

re Gonzalez Recinas,

(B.I.A. 2002) (“Part

of that analysis requires the assessment of hardship factors in

their totality, often termed a ‘cumulative’ analysis.”). We lack

jurisdiction to review the agency’s weighing of the hardship

evidence or balancing of factors. See Barco-Sandoval,

; Argueta v. Holder,

(2d Cir. 2010).

6 For the foregoing reasons, the petition for review is

DISMISSED.

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

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