23-7748 Perez-Marcos v. Garland BIA Hochul, IJ A206 471 720

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 31st day of October, two thousand twenty-four.

PRESENT: RICHARD C. WESLEY, GERARD E. LYNCH, MARIA ARAÚJO KAHN, Circuit Judges. _____________________________________

BALVINO ISAAC PEREZ-MARCOS,

Petitioner,

v. 23-7748

MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL,

Respondent. _____________________________________

FOR PETITIONER: Matthew K. Borowski, Borowski Witmer Immigration Lawyers, Buffalo, NY.

FOR RESPONDENT: Brian Boynton, Principal Deputy Assistant Attorney General; Justin Markel, Senior Litigation Counsel; Andrew Oliveira, Trial Attorney, Office of Immigration Litigation, U.S. Department of Justice, Washington, D.C.

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 Balvino Isaac Perez-Marcos, a native and citizen of Guatemala, seeks

review of an October 16, 2023 decision of the BIA. In that decision, the BIA denied Perez-

Marcos’s motion to remand for consideration of additional evidence and affirmed the

February 6, 2019 decision by an Immigration Judge (“IJ”) to deny his application for

cancellation of removal. In re Balvino Isaac Perez-Marcos, No. A206 471 720 (B.I.A. Oct.

16, 2023), aff’g No. A206 471 720 (Immigr. Ct. Buffalo Feb. 6, 2019). We assume the

parties’ familiarity with the underlying facts, the procedural history, and the issues on

appeal, to which we refer only as necessary to explain our decision.

We have reviewed both the IJ’s and the BIA’s decisions. See Wangchuck v. Dep’t of

Homeland Sec.,

(2d Cir. 2006). To be eligible for cancellation of removal,

Perez-Marcos had the burden to establish that his removal would cause his three U.S.

citizen daughters “exceptional and extremely unusual hardship.” 8 U.S.C.

§ 1229b(b)(1)(D); see id. § 1229a(c)(4)(A)(i) (placing burden of proof on applicant for 2 relief). To meet this high standard, he had to “establish that his [daughters] would suffer

hardship that is substantially different from, or beyond, that which would normally be

expected from the deportation of [a noncitizen] 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.”

. “A lower standard of living or adverse country conditions in the

country of return are factors to consider . . . insofar as they may affect a qualifying

relative, but generally will be insufficient in themselves to support a finding of

exceptional and extremely unusual hardship.”

at 63–64.

Our review of the agency’s denial of cancellation of removal is limited to

constitutional claims and questions of law.

(a)(2)(B), (D). The latter

category includes mixed questions of law and fact. Wilkinson v. Garland,

(2024). Whether an agency erred in applying the hardship standard to established

facts is a mixed question of law and fact that we may review. See

We may not,

however, review the factual findings underlying the agency’s determination, such as

findings regarding levels of financial support. See

Furthermore, although we

generally review questions of law de novo, see Paucar v. Garland,

, 80 (2d Cir.

2023), where, as here, a “mixed question is primarily factual, [our] review is deferential,”

Wilkinson,

.

3 Perez-Marcos challenges the agency’s finding that he could financially provide for

his children if he were removed to Guatemala. The IJ found that Perez-Marcos would

be able to financially support his daughters “to some degree” based on his expressed

intent to work in the agriculture industry in Guatemala, that his daughters would remain

with their mother who could support them, and that his daughters would be eligible for

social services. CAR at 137–38. Because we may not review those findings of fact,

Perez-Marcos’s challenge to them is unavailing. See Wilkinson,

(“[A]n IJ’s

factfinding on credibility, the seriousness of a family member’s medical condition, or the

level of financial support a noncitizen currently provides remain unreviewable.”).

Perez-Marcos further argues that the IJ erred by “minimiz[ing]” his having lived

with his children prior to 2017. Petitioner Br. at 13. The IJ, however, found that Perez-

Marcos is an “involved and devoted father.” CAR at 138. And while Perez-Marcos

contends that the “agency did not conduct a full analysis of what life would be like for

[his] children in Guatemala,” Petitioner Br. at 16, the IJ found, based on Perez-Marcos’s

testimony, that the children would remain in the United States after his removal. As

with the agency’s findings regarding his ability to financially support his daughters, these

factual findings are unreviewable.

Perez-Marcos has not otherwise demonstrated an error of law. Contrary to his

claim, the IJ considered the hardship factors in the aggregate. In addition to financial

4 hardship, the IJ considered emotional hardship, acknowledging that Perez-Marcos has a

good relationship with his daughters. The IJ further considered the familial and social

services support the children would have access to in the United States, notwithstanding

Perez-Marcos’s absence. Cf. In re Gonzalez Recinas,

(B.I.A. 2002)

(finding hardship standard met where the children were “entirely dependent on their

single mother for support”). And the IJ noted that the children were “healthy” and

“do[ing] well” in school. Cf. In re Monreal-Aguinaga, 23 I. & N. Dec. at 63–64 (noting that

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

compelling special needs in school”). Additionally, although the IJ considered evidence

of conditions in Guatemala, the IJ also determined that the children would remain in the

United States with their mother. Given those established facts, the agency did not err in

concluding that he failed to show “exceptional and extremely unusual hardship.” 8

U.S.C. § 1229b(b)(1)(D); see In re Monreal-Aguinaga, 23 I. & N. Dec. at 63–65.

The BIA also did not err in declining to remand for consideration of evidence

Perez-Marcos submitted on appeal. We review that decision for abuse of discretion.

Cao v. U.S. Dep’t of Just.,

(2d Cir. 2005). “A motion to remand that relies

on newly available evidence is held to the substantive requirements of a motion to

reopen,” and a movant’s failure to proffer previously unavailable evidence or

demonstrate his prima facie eligibility for relief are permissible grounds for denying a

5 motion to remand.

. Perez-Marcos’s new evidence showing violence in

Guatemala was immaterial because he had previously testified that his children would

remain in the United States with their mother. Moreover, Perez-Marcos’s evidence

regarding his continued emotional and financial support of his daughters was not new

because the IJ had considered similar evidence and had already found that Perez-Marcos

emotionally and financially supported his daughters. The BIA therefore did not abuse

its discretion by determining that the new evidence was not dispositive to the case’s

outcome.

For the foregoing reasons, the petition for review is DISMISSED IN PART and

DENIED 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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