11-1558-ag
Guzman v. Holder

                          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 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 4th day of October, two thousand twelve.

PRESENT: REENA RAGGI,
         PETER W. HALL,
         DEBRA ANN LIVINGSTON,
                   Circuit Judges.

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MARIO GUZMAN,
                                 Petitioner,

                         v.                                              No. 11-1558-ag

ERIC H. HOLDER, JR., Attorney General of the
United States,
                                 Respondent.
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FOR PETITIONER:                  Mario DeMarco, Esq., Port Chester, New York.

FOR RESPONDENT:                  Stuart F. Delery, Acting Assistant Attorney General; Thomas B.
                                 Fatouros, Senior Litigation Counsel; Imran R. Zaidi, Trial
                                 Attorney, Office of Immigration Litigation, Civil Division,
                                 United States 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 DENIED.

       Mario Guzman, a native and citizen of Mexico, seeks review of a March 23, 2011

order of the BIA affirming the May 24, 2010 decision of Immigration Judge (“IJ”) Alan A.

Vomacka, finding Guzman removable and ineligible for cancellation of removal. In re Mario

Guzman, No. A088 207 986 (B.I.A. Mar. 23, 2011), aff’g No. A088 207 986 (Immig. Ct.

N.Y.C., May 24, 2010). We assume the parties’ familiarity with the underlying facts and

procedural history in this case, which we reference only as necessary to explain our decision

to deny the petition for review.

       Under the circumstances of this case, we have reviewed the IJ’s decision as

supplemented and modified by the BIA. See Xue Hong Yang v. U.S. Dep’t of Justice, 

, 522 (2d Cir. 2005); Yan Chen v. Gonzales, 

, 271 (2d Cir. 2005). For

Guzman, who is not a lawful permanent resident, to demonstrate eligibility for cancellation

of removal, he must show that his “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). Guzman

challenges the agency’s conclusion that he failed to carry this burden with respect to his U.S.

citizen son. He asserts that the BIA erred as a matter of law in mischaracterizing the record

to support an erroneous conclusion that, if Guzman were removed, his wife and two U.S.


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citizen children would remain the United States rather than accompany him to Mexico. We

retain jurisdiction to consider this alleged legal error. See 8 U.S.C. § 1252(a)(2)(B), (D);

Mendez v. Holder, 

, 322–23 (2d Cir. 2009).

1.     Hardship Determination

       We agree with Guzman that the BIA mischaracterized the IJ’s decision when it

referred to the IJ’s “finding that . . . the respondent’s wife . . . would remain for the time

being in the United States with the couple’s children.” J.A. 3. While the IJ expressed the

opinion that this was likely, see J.A. 50, he made no definite finding as to the intent of

Guzman’s wife. Insofar as the BIA’s mischaracterization might be construed as making a

de novo finding of fact rather than reviewing the IJ’s findings for clear error, that would run

afoul of the limited scope of review assigned to the BIA by 8 C.F.R. § 1003.1(d)(3)(i). See

Hui Lin Huang v. Holder, 

 (2d Cir. 2012). However, this error would not

require remand, because there is no realistic possibility that the BIA would reach a different

conclusion absent the mischaracterization.

       We know that this is so because Guzman’s appeal to the BIA relied on the very factual

premise that he now faults the agency for adopting—i.e., his son’s remaining in the United

States after Guzman’s removal to Mexico. In his brief to the BIA, Guzman argued that this

“loss of a father” would pose a particular hardship to his son because the boy suffers from

Attention Deficit Disorder. J.A. 26–28. On this record, there is “no realistic possibility”

that, absent the identified error, the BIA “would have reached a different conclusion,” Alam


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v. Gonzales, 

, 187–88 (2d Cir. 2006) (internal citations and quotation marks

omitted). In such a case, remand is futile. See Cao He Lin v. U.S. Dep’t of Justice, 

, 401–02 (2d Cir. 2005).

2.     Exhaustion

       Alternatively, Guzman challenges the denial of cancellation on the ground that his son

would suffer hardship if the entire family were to relocate to Mexico. Because Guzman

failed to raise this argument before the agency, and because the government here raises this

failure to exhaust, we decline to consider the issue. See Lin Zhong v. U.S. Dep’t of Justice,

, 124 (2d Cir. 2007) (describing issue-exhaustion requirement as “affirmative

defense subject to waiver”).

       For the foregoing reasons, the petition for review is DENIED. As we have completed

our review, any pending motion for a stay of removal in this petition is DENIED as moot.

Any pending request for oral argument in this petition is DENIED in accordance with

Federal Rule of Appellate Procedure 34(a)(2) and Second Circuit Local Rule 34.1(b).

                                   FOR THE COURT:
                                   CATHERINE O’HAGAN WOLFE, Clerk of Court




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