23-6890-ag Carrera Hernandez 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 28th day of October, two thousand twenty-four.

PRESENT: PIERRE N. LEVAL, DENNY CHIN, RAYMOND J. LOHIER, JR., Circuit Judges. ------------------------------------------------------------------ FREDY CARRERA HERNANDEZ, ESPERANZA CARRERA REYES,

Petitioners,

v. No. 23-6890-ag

MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL,

Respondent. ------------------------------------------------------------------ FOR PETITIONERS: Usman B. Ahmad, Law Office of Usman B. Ahmad, P.C., Long Island City, NY

FOR RESPONDENT: Joannabelle M. Aquino, Trial Attorney, Jennifer P. Levings, Assistant Director, Brian Boynton, Principal Deputy Assistant Attorney General, 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 in part and DISMISSED in

part.

Petitioners Fredy Carrera Hernandez and Esperanza Carrera Reyes,

natives and citizens of Mexico, seek review of a July 14, 2023 decision of the BIA

affirming a September 12, 2019 decision of an Immigration Judge (IJ) denying

their applications for cancellation of removal under 8 U.S.C. § 1229b(b). In re

Fredy Carrera Hernandez, Esperanza Carrera Reyes, Nos. A208 344 863/864 (B.I.A.

July 14, 2023), aff’g Nos. A208 344 863/864 (Immigr. Ct. Hartford Sept. 12, 2019).

We assume the parties’ familiarity with the underlying facts and procedural

history, to which we refer only as necessary to explain our decision to deny the

petition for review in part and dismiss it in part. 2 To be eligible for cancellation of removal, Petitioners had to “establish[]

that removal would result in exceptional and extremely unusual hardship to

[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)(D). To meet

this standard, Petitioners were required to show “that [their] qualifying relative[]

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 here.” In re Monreal-Aguinaga,

(B.I.A. 2001). The

agency considers hardship factors in the aggregate, including “the ages, health,

and circumstances of qualifying . . . relatives.”

at 63–64.

“Where, as here, the BIA has adopted the IJ’s reasoning and offered

additional commentary, we review the decision of the IJ as supplemented by the

BIA.” Yan Juan Chen v. Holder,

(2d Cir. 2011). Our jurisdiction

to review the BIA’s denial of cancellation of removal is limited to “constitutional

claims or questions of law.”

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

, 338–39 (2022).

3 I. Due Process

Petitioners first contend that their due process right to a full and fair

removal hearing was violated by the IJ’s comments, refusal to admit evidence of

hardship, and unwillingness to afford Petitioners’ counsel extra time at the

hearing when their counsel arrived more than thirty minutes late. “To establish

a violation of due process, [Petitioners] must show that [they were] denied a full

and fair opportunity to present [their claims] or that the IJ or BIA otherwise

deprived [them] of fundamental fairness.” Burger v. Gonzales,

(2d Cir. 2007) (quotation marks omitted). Petitioners have not demonstrated a

due process violation.

"[J]udicial remarks . . . that are disapproving of, or even hostile to, counsel,

the parties, or their cases do not support a claim of bias or partiality unless they

reveal ‘such a high degree of favoritism or antagonism as to make fair judgment

impossible.’” Francolino v. Kuhlman,

(2d Cir. 2004) (quoting

Liteky v. United States,

(1994)); see Shu Ling Ni v. Bd. of Immigr.

Appeals,

, 180–81 (2d Cir. 2006). We do not view the IJ’s statements

as evidencing any degree of favoritism or antagonism toward Petitioners. To the

contrary, the IJ ultimately did give Petitioners’ counsel “the full amount of time

4 that [their] case was scheduled [for],” Certified Administrative Record (“CAR”)

at 166, and the BIA clarified that even if it “consider[ed] the untimely evidence,”

it would still deny Petitioners’ appeal, CAR at 4. Petitioners have not identified

any additional evidence that they would have offered if given the opportunity

and thus have failed to show that they suffered any “cognizable prejudice” that

could support their due process challenge. See Garcia-Villeda v. Mukasey,

(2d Cir. 2008) (quotation marks omitted).

II. Exceptional and Extremely Unusual Hardship

Petitioners also challenge the agency’s determination that they were

ineligible for cancellation of removal because they failed to show the requisite

exceptional and extremely unusual hardship. “[T]he application of the

exceptional and extremely unusual hardship standard to a given set of facts is

reviewable as a question of law under § 1252(a)(2)(D).” Wilkinson v. Garland,

, 217 (2024). Although we typically review such questions de novo, Paucar

v. Garland,

(2d Cir. 2023), the Supreme Court has clarified that the

particular mixed question of whether established facts satisfy the eligibility

standard under § 1252(a)(2)(D) “is primarily factual, [so] that review is

deferential,” Wilkinson, 601 U.S. at 225.

5 Where, as here, the claim is “based on the health of a qualifying relative,

an applicant needs to establish that the relative has a serious medical condition

and, if he or she is accompanying the applicant to the country of removal, that

adequate medical care . . . is not reasonably available in that country.” Matter of

J-J-G-,

(B.I.A. 2020). The agency considered the hardship

evidence, including Petitioners’ son’s undiagnosed condition involving growths

on his skin and his bronchitis diagnosis. 1 But it determined that, “[c]onsidering

all of the hardships cumulatively and in the aggregate, [Petitioners] have not

shown exceptional and extremely unusual hardship to their qualifying relative.”

CAR at 4. Given the “more deferential standard of review” that applies in this

context, Wilkinson, 601 U.S. at 222, we find no error in the agency’s

determination.

To the extent that Petitioners challenge the agency’s underlying factual

determinations — for example, that there was “insufficient evidence that [their

1 The IJ also considered hardship evidence with respect to Petitioners’ daughter. Because their daughter turned 21 while the case was pending before the BIA, the BIA did not consider her in its hardship analysis. The Government now argues that Petitioners have abandoned any challenge to that determination. While Petitioners do not explicitly challenge that determination in their brief, they continue to rely on the hardships suffered by their daughter. Even if the hardships suffered by their daughter were taken into account, however, the result would not change. 6 son’s] condition would need further treatment or that treatment would be

unavailable in Mexico,” CAR at 4 — we lack jurisdiction to review those

determinations. Wilkinson, 601 U.S. at 222.

CONCLUSION

We have considered Petitioners’ remaining arguments and conclude that

they are without merit. For the foregoing reasons, the petition for review is

DENIED in part and DISMISSED in part. All pending motions and applications

are DENIED and stays VACATED.

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

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