Filed: Aug. 17, 2012
Latest Update: Feb. 12, 2020
Summary: 11-4754 Porres v. Holder BIA Straus, I.J. A087 643 113 A087 643 114 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 DATABA
Summary: 11-4754 Porres v. Holder BIA Straus, I.J. A087 643 113 A087 643 114 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 DATABAS..
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11-4754
Porres v. Holder
BIA
Straus, I.J.
A087 643 113
A087 643 114
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 17th day of August, two thousand twelve.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 DENNY CHIN,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _______________________________________
12
13 JUAN CARLOS PORRES, AKA JUAN CARLOS
14 PORRES MUNOZ, BRENDA LISSETTE RODRIGUEZ
15 DE PORRES,
16 Petitioners,
17
18 v. 11-4754
19 NAC
20 ERIC H. HOLDER, JR., UNITED STATES
21 ATTORNEY GENERAL,
22 Respondent.
23 _______________________________________
24
25
26 FOR PETITIONERS: Randy Olen, Providence, Rhode
27 Island.
28
1 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
2 Attorney General; Thomas B.
3 Fotouros, Senior Litigation Counsel;
4 Robert Michael Stalzer, Trial
5 Attorney, Office of Immigration
6 Litigation, United States Department
7 of Justice, Washington, D.C.
8
9 UPON DUE CONSIDERATION of this petition for review of a
10 decision of the Board of Immigration Appeals (“BIA”), it is
11 hereby ORDERED, ADJUDGED, AND DECREED that the petition for
12 review is DISMISSED.
13 Juan Carlos Porres and Brenda Lissette Rodriguez De
14 Porres, natives and citizens of Guatemala, seek review of a
15 September 29, 2011, decision of the BIA affirming the July
16 1, 2010 decision of Immigration Judge (“IJ”) Michael W.
17 Straus denying their applications for cancellation of
18 removal and denying Mr. Porres’s application for withholding
19 of removal. In re Juan Carlos Porres, Brenda Lissette
20 Rodriguez De Porres, Nos. A087 643 113/114 (B.I.A. Sept. 29,
21 2011) ("BIA Decision"), aff’g No. A087 643 113/114 (Immig.
22 Ct. Hartford July 1, 2010). We assume the parties’
23 familiarity with the underlying facts and procedural history
24 of this case.
25 We lack jurisdiction to review “any judgment regarding
26 the granting of relief under” § 240A of the Immigration and
2
1 Nationality Act, including the agency’s determination that
2 the petitioners failed to establish the requisite hardship.
3 8 U.S.C. § 1252(a)(2)(B)(i). We retain jurisdiction to
4 review constitutional claims or questions of law raised in a
5 petition for review, and review those claims de novo. See
6 Wellington v. Holder, 623 F.3d 115, 118 (2d Cir. 2010) (per
7 curiam).
8 Petitioners argue that the agency “overlooked and
9 mischaracterized evidence” when it concluded that they
10 failed to establish that their U.S.-citizen children would
11 suffer an "exceptional and extremely unusual hardship"
12 warranting cancellation of removal. See 8 U.S.C.
13 § 1229(b)(1). Specifically, Petitioners argue that the
14 agency overlooked the drastic change in economic
15 circumstances their family would suffer, the educational
16 opportunities and quality health care their children would
17 lose, and the dangerous conditions they would face in
18 Guatemala. Petitioners have not shown, however, that the
19 agency “totally overlooked” or “seriously mischaracterized”
20 any facts related to conditions in Guatemala. See Mendez v.
21 Holder,
566 F.3d 316, 323 (2d Cir. 2009) (per curiam)
22 (emphasis added). The BIA acknowledged that Petitioners'
3
1 U.S.-citizen children would experience financial hardship,
2 diminished educational opportunities, and other difficulties
3 adapting to a new culture in Guatemala, but concluded that
4 "these hardships are typical of those experienced when a
5 qualifying relative is removed from the United States." BIA
6 Decision at 2. Rather than raising constitutional claims or
7 questions of law, Petitioners’ arguments amount to
8 “essentially a quarrel about fact-finding or the exercise of
9 discretion” by the agency. Barco-Sandoval v. Gonzales, 516
10 F.3d 35, 39 (2d Cir. 2008). Accordingly, this Court lacks
11 jurisdiction to review the agency's discretionary hardship
12 determination.
13 Petitioners also argue that the agency erred in denying
14 Mr. Porres’s application for withholding of removal because
15 it failed to define correctly their particular social group.
16 Because Petitioners failed to raise this issue in their
17 brief to the BIA, we decline to consider it. Lin Zhong v.
18 U.S. Dep’t of Justice,
480 F.3d 104, 119-20 (2d Cir. 2007).
19 For the foregoing reasons, the petition for review is
20 DISMISSED. As we have completed our review, any stay of
21 removal that the Court previously granted in this petition
22 is VACATED, and any pending motion for a stay of removal in
4
1 this petition is DENIED as moot. Any pending request for
2 oral argument in this petition is DENIED in accordance with
3 Federal Rule of Appellate Procedure 34(a)(2), and Second
4 Circuit Local Rule 34.1(b).
5 FOR THE COURT:
6 Catherine O’Hagan Wolfe, Clerk
7
8
5
