22-6411 Escobar v. Garland BIA A204 787 573

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 13th day of August, two thousand twenty-four.

PRESENT: JON O. NEWMAN, JOSEPH F. BIANCO, ALISON J. NATHAN, Circuit Judges. _____________________________________

HECTOR MANUEL ESCOBAR, Petitioner,

v. 22-6411 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________ FOR PETITIONER: Jon E. Jessen, Law Offices of Jon E. Jessen, LLC, Stamford, CT.

FOR RESPONDENT: Brian M. Boynton, Principal Deputy Assistant Attorney General; Anna E. Juarez, Senior Litigation Counsel; Jonathan S. Needle, 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 DENIED.

Petitioner Hector Manuel Escobar, a native and citizen of Guatemala, seeks

review of a July 28, 2022, decision of the BIA denying his motion to reopen his

removal proceedings. In re Hector Manuel Escobar, No. A204 787 573 (B.I.A. July

28, 2022). We assume the parties’ familiarity with the underlying facts and

procedural history.

Our review of cancellation of removal, including a motion to reopen to

apply for cancellation of removal, is limited to constitutional claims and questions

of law. See

(a)(2)(B)(i), (D); Paucar v. Garland,

, 79–80 (2d

Cir. 2023). An ineffective assistance claim is a reviewable constitutional claim,

and we review questions of law de novo, including the application of law to

2 established facts, and whether the agency applied the correct legal standards or

mischaracterized the evidence. Wilkinson v. Garland,

, 221–22, 225

(2024); Paucar,

. However, we cannot reach underlying factual

determinations such as “factfinding on credibility, the seriousness of a family

member’s medical condition, or the level of financial support a noncitizen

currently provides.” Wilkinson,

.

“To demonstrate ineffective assistance of counsel, [a movant] must show

that counsel’s performance ‘fell below an objective standard of reasonableness’

and that he was prejudiced as a result of such deficient performance.” Paucar,

(quoting Strickland v. Washington,

, 687–88 (1984)). The sole

issue here is prejudice. “To establish prejudice in this context, [Escobar] must

show that, ‘but for counsel’s unprofessional errors,’ there is a ‘reasonable

probability’ the IJ would have granted the relief.”

(quoting Matter of Melgar,

(B.I.A. 2020)).

The agency did not err in finding that Escobar failed to demonstrate

prejudice because he did not establish a reasonable probability that the IJ would

have granted relief. A nonpermanent resident like Escobar may have his removal

cancelled if, in relevant part, he can “establish[] that removal would result in

3 exceptional and extremely unusual hardship to [his] spouse . . . or child, who is a

citizen of the United States.” 8 U.S.C. § 1229b(b)(1). Although he initially

applied for cancellation of removal based on hardship to both his U.S. citizen wife

and U.S. citizen children, he was separated from his wife and moved to reopen

based only on hardship to his children. 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) (quotation marks omitted). Relevant factors include

“the ages, health, and circumstances” of the qualifying relatives.

. A

“strong applicant might have a qualifying child with very serious health issues, or

compelling special needs in school.”

Escobar argues that the agency “did not consider the impact of separation

on the children especially since he was a proactive father,” and that it failed to

review the medical records of his daughter, who suffers from asthma, anemia, and

anxiety. He also states that the agency applied the wrong legal standard. He

argues that his counsel was ineffective for “fail[ing] to provide evidence (i.e.,

psychological report)” on how his children would suffer in his absence, for failing

4 to file an appellate brief, and for failing to note for the IJ that his daughter suffered

from anemia and anxiety, and his son from depression.

Escobar has not established error in the BIA’s conclusion that he failed to

establish prejudice. The BIA did not apply a heightened hardship standard. It

cited the relevant standard, that the hardship must be “substantially beyond” that

ordinarily associated with a person’s ordered departure. In re Monreal-Aguinaga,

23 I. & N. at 62.

Further, the BIA addressed the evidence presented with the motion to

reopen. The BIA explicitly considered a letter from a school administrator that

Escobar’s son had exhibited depression at age 10 and his daughter’s medical

records. The letter stated that “[his son] was a regular, well-adjusted 10-year-old

until he received word that his father was facing deportation. At that time, [he]

became depressed, agitated, aggressive, and withdrawn from his peers and

surroundings.” His daughter’s medical records reflected that she had reported

or exhibited symptoms of anxiety for which counseling was encouraged, and had

been diagnosed with, and been prescribed medication for, anemia and asthma.

The BIA reasoned that Escobar did not have medical evidence to corroborate his

son’s depression and that the IJ had already considered that his son was depressed

5 and would suffer emotional hardship from his removal. Essentially, the BIA

found that Escobar had not presented new evidence that his son suffered from a

serious medical condition; that factual determination regarding seriousness is not

subject to judicial review. See Wilkinson,

. Similarly, as to his

daughter’s asthma, the BIA concluded that Escobar had not shown how his

removal would affect her condition or how it would constitute hardship. Again,

this factual determination that the condition was not shown to be sufficiently

serious is not reviewable. Wilkinson,

. Moreover, the record does

not suggest that the BIA “totally overlooked” or “seriously mischaracterized” any

facts or evidence about his daughter’s conditions. Mendez v. Holder,

(2d Cir. 2009). The BIA did not comment on Escobar’s daughter’s anemia and

anxiety, which are noted in the same medical records, but it was not required to

do so, particularly as his brief in support of his motion to reopen mentioned only

his daughter’s asthma and did not identify or argue that her anemia or anxiety

were serious conditions. See Jian Hui Shao v. Mukasey,

(2d Cir.

2008) (holding that the BIA is not required to “expressly parse or refute on the

record each individual argument or piece of evidence offered by the petitioner”

(quotation marks omitted)); Xiao Ji Chen v. U.S. Dep’t of Just.,

, 336 n.17

6 (2d Cir. 2006) (“presum[ing] that [the agency] has taken into account all of the

evidence . . . unless the record compellingly suggests otherwise”).

While we may review whether the BIA erred in finding that the “established

facts” failed to demonstrate “exceptional and extremely unusual hardship,”

absent the minimal additional evidence of the children’s medical conditions, there

was no evidence that would change the IJ’s hardship determination. As noted

above, the BIA did not ignore or mischaracterize evidence of the children’s health.

Escobar did not allege that his children had “compelling special needs in school”

in the United States. In re Monreal-Aguinaga,

. Nor did he

present additional evidence of financial hardship. In sum, the BIA did not err in

concluding that Escobar failed to show a reasonable probability that the outcome

would have been different if former counsel had presented the additional medical

evidence before the IJ. See Paucar,

.

Finally, to the extent Escobar argues that he was deprived of due process,

he simply states that the BIA’s decision deprived him of an opportunity to present

his case. As set forth above, the BIA considered the arguments and evidence

presented with his motion to reopen, and Escobar has not otherwise specified how

the BIA deprived him of due process.

7 For the foregoing reasons, the petition for review is DENIED. All pending

motions and applications are DENIED and stays VACATED.

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

8