Filed: May 07, 2019
Latest Update: Mar. 03, 2020
Summary: 16-3958 Sandoval v. Barr BIA Buchanan, IJ A093 334 631 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
Summary: 16-3958 Sandoval v. Barr BIA Buchanan, IJ A093 334 631 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 N..
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16-3958
Sandoval v. Barr
BIA
Buchanan, IJ
A093 334 631
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 May, two thousand nineteen.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
ROSEMARY S. POOLER,
SUSAN L. CARNEY,
Circuit Judges.
_____________________________________
SELVIN SANDOVAL,
Petitioner,
v. 16-3958
NAC
WILLIAM P. BARR, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Gisela Chavez-Garcia, New York,
NY.
FOR RESPONDENT: Chad A. Readler, Acting Assistant
Attorney General; Russell J.E.
Verby, Senior Litigation Counsel;
Nancy Kwang Canter, 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 DISMISSED.
Petitioner Selvin Sandoval, a native and citizen of
Guatemala, seeks review of an October 26, 2016, decision of
the BIA affirming an October 6, 2015, decision of an
Immigration Judge (“IJ”) denying Sandoval’s motion to reopen
his removal proceedings. In re Selvin Sandoval, No. A093 334
631 (B.I.A. Oct. 26, 2016), aff’g No. A093 334 631 (Immig.
N.Y. City Oct. 6, 2015). We assume the parties’ familiarity
with the underlying facts and procedural history in this case.
We review the denial of a motion to reopen for abuse of
discretion. Jian Hui Shao v. Mukasey, 546 F.3d 138, 168-69
(2d Cir. 2008). Where, as here, a motion to reopen is filed
to apply for cancellation of removal and argues ineffective
assistance of counsel, the dispositive analysis is whether
the movant established his prima facie eligibility for
2
cancellation. See INS v. Abudu, 485 U.S. 94, 104 (1988);
Rabiu v. INS,
41 F.3d 879, 882 (2d Cir. 1994). To demonstrate
eligibility for cancellation of removal, a nonpermanent
resident such as Sandoval must demonstrate that his “removal
would result in exceptional and extremely unusual hardship
to” his U.S.-citizen daughters. 8 U.S.C. § 1229b(b)(1)(D).
“‘[E]xceptional and extremely unusual hardship’
determinations by the [agency] are discretionary judgments.”
Barco-Sandoval v. Gonzales,
516 F.3d 35, 38 (2d Cir. 2008)
(quoting De La Vega v. Gonzales,
436 F.3d 141, 145-46 (2d
Cir. 2006)). Thus, our jurisdiction to review the agency’s
hardship determination, as well as the denial of a motion to
reopen, is limited to constitutional claims and questions of
law. 8 U.S.C. § 1252(a)(2)(B), (D);
Barco-Sandoval, 516 F.3d
at 39 (hardship determinations); Mariuta v. Gonzales,
411
F.3d 361, 365 (2d Cir. 2005)(motion to reopen).
Although a question of law may arise when “some facts
important to the subtle determination of ‘exceptional and
extremely unusual hardship’ have been totally overlooked and
others have been seriously mischaracterized,” Mendez v.
Holder, 566 F.3d 316, 323 (2d Cir. 2009), Sandoval failed to
identify any such errors in the agency’s hardship ruling.
3
Moreover, the agency applied the correct standard and
considered Sandoval’s hardship evidence, including a
pediatrician’s letter concerning the asthma of one of his
daughters. In re Gonzalez Recinas, 23 I. & N. Dec. 467, 468
(B.I.A. 2002) (In making a hardship determination,
“consideration should be given to the age, health, and
circumstances of the qualifying family members, including how
a lower standard of living or adverse country conditions in
the country of return might affect those relatives.”).
Sandoval does not challenge the agency’s factual findings
that he is not his daughters’ primary caregiver, that he does
not live with them or visit them often, and that he provided
no evidence that they would accompany him to Guatemala or
that his daughter’s asthma could not be effectively treated
there.
Sandoval asserts that some supporting documentation was
withheld by his prior counsel, but he did not raise this
argument before the BIA and provides no description of the
allegedly withheld documents. In any event, our review is
limited to the administrative record on which the agency’s
decision was based. 8 U.S.C. § 1252(b)(4)(A).
4
For the foregoing reasons, Sandoval’s petition for review
is DISMISSED.
FOR THE COURT:
Catherine O’Hagan Wolfe
Clerk of Court
5
