Opinion
20-426 NAC
07-07-2022
MANUEL TRINIDAD SINCHI, AKA MANUEL TRINIDAD SINCHI SINCHI, BLANCA YOLANDA SINCHI, AKA BLANCA REINOSO VALLADAREZ, Petitioners, v. MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent.
FOR PETITIONERS: Manuel D. Gomez, Esq., New York, NY. FOR RESPONDENT: Brian Boynton, Acting Assistant Attorney General; M. Jocelyn Lopez Wright, Senior Litigation Counsel; Allison Frayer, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.
UNPUBLISHED OPINION
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 7th day of July, two thousand twenty-two.
FOR PETITIONERS: Manuel D. Gomez, Esq., New York, NY.
FOR RESPONDENT: Brian Boynton, Acting Assistant Attorney General; M. Jocelyn Lopez Wright, Senior Litigation Counsel; Allison Frayer, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.
PRESENT: JOSE A. CABRANES, DENNY CHIN, STEVEN J. MENASHI, Circuit Judges.
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 Manuel Trinidad Sinchi and Blanca Yolanda Sinchi, citizens of Ecuador, seek review of a January 3, 2020, decision of the BIA affirming a May 2, 2019, decision of an Immigration Judge ("IJ") denying their motions to reconsider and reopen their removal proceedings to revisit their application for cancellation of removal. In re Manuel Trinidad Sinchi, Blanca Yolanda Sinchi, No. A 089 213 425/202 018 398 (B.I.A. Jan. 3, 2020), aff'g No. A 089 213 425/202 018 398 (Immigr. Ct. N.Y. City May 2, 2019). We assume the parties' familiarity with the underlying facts and procedural history.
Our jurisdiction to review denials of discretionary relief, such as cancellation of removal, is limited to "constitutional claims or questions of law." 8 U.S.C. § 1252(a)(2)(B), (D); Patel v. Garland, 142 S.Ct. 1614, 1622-27 (2022). This limitation extends to the denial of motions to reopen and reconsider when the motions relate to discretionary relief. Sepulveda v. Gonzales, 407 F.3d 59, 64 (2d Cir. 2005) ("[B]ecause a final order of removal is intertwined with subsequent motions to reconsider and reopen those removal proceedings, a jurisdictional provision that applies to a final order of removal necessarily also applies to related motions to reconsider and reopen.").
Applicants for cancellation of removal have the burden to show that their removal would cause "exceptional and extremely unusual hardship" to a qualifying relative, here Petitioners' younger U.S. citizen daughter. 8 U.S.C. §§ 1229a(c)(4)(A), 1229b(b)(1)(D). "[T]he hardship . . . must be 'substantially' beyond the ordinary hardship that would be expected when a close family member leaves this country." In re Monreal-Aguinaga, 23 I. &N. Dec. 56, 62 (B.I.A. 2001) (quoting H.R. Rep. 104-828, at 213 (1996) (Conf. Rep.)). In determining the necessary level of hardship, the agency considers, among other things, the qualifying relative's age, health, and circumstances, as well as the applicant's family and community ties and length of residence in the United States. Id. at 63. A lower standard of living, diminished educational opportunities, poor economic conditions, and other adverse factors in the country of removal are generally not sufficient to show the necessary hardship. Id. at 63-64; In re Andazola-Rivas, 23 I. &N. Dec. 319, 323 (B.I.A. 2002).
I. Motion for reconsideration
A motion to reconsider "shall specify the errors of law or fact in the previous order and shall be supported with pertinent authority." 8 U.S.C. § 1229a(c)(6)(C); 8 C.F.R. §§ 1003.2(b)(1), 1003.23(b)(2). "A motion to reconsider is a request that the [agency] reexamine its decision in light of additional legal arguments, a change of law, or perhaps an argument or aspect of the case which was overlooked ...." Matter of Cerna, 20 I. &N. Dec. 399, 402 n.2 (B.I.A. 1991) (quotation marks omitted).
Petitioners have not identified a colorable question of law or meritorious constitutional claim arising from the agency's denial of reconsideration. They argue that the IJ should have let their older daughter testify regarding their younger daughter's mental health issues. But they did not submit her name on a witness list prior to their hearing as required by the Immigration Court Practice Manual, and the relevant evidence was in the record as they testified about their younger daughter's mental health and a 2017 assault that contributed to her issues, and the IJ considered an oral offer of proof. See Immigration Court Practice Manual § 3.1(b)(2)(B), (d)(2), available at. Petitioners have not stated a meritorious due process claim because the testimony would have been repetitive, and they do not explain how they were prejudiced by the IJ's decision not to allow it. See Garcia-Villeda v. Mukasey, 531 F.3d 141, 149 (2d Cir. 2008) ("Parties claiming denial of due process in immigration cases must, in order to prevail, allege some cognizable prejudice fairly attributable to the challenged process." (quotation marks omitted)).
Petitioners also argue that the BIA erred in denying their request for transcripts because they needed them to show that their older daughter's testimony was required to detail the source of their younger daughter's mental health issues. But they did not file a direct appeal of the IJ's denial of cancellation, and transcripts generally are produced only when such an appeal is filed. In re W-F-, 21 I. &N. Dec. 503, 507-08 (B.I.A. 1996); see also B.IA. Practice Manual, Ch. 4.2(f)(ii), 5.5 (March 23, 2018), available at https://www.justice.gov/eoir/eoir-policy-manual/iii.
In determining that Petitioners' younger daughter would not suffer the requisite level of hardship, the IJ considered evidence of her psychological issues and ongoing therapy and her reduced economic and education prospects in Ecuador. Because the IJ considered the relevant evidence, Petitioners arguments amount to a quarrel about the agency's fact finding and the weight it gave the evidence, which is not subject to review. See Mendez v. Holder, 566 F.3d 316, 323 (2d Cir. 2009) (concluding that question of law may arise if facts "have been totally overlooked" or "seriously mischaracterized," but "acknowledging] that the agency does not commit an 'error of law' every time an item of evidence is not explicitly considered or is described with imperfect accuracy"); Barco-Sandoval v. Gonzales, 516 F.3d 35, 39-42 (2d Cir. 2008) (holding that we do not have jurisdiction over fact finding and discretionary choices).
II. Motion to Reopen
In contrast to a motion to reconsider, a motion to reopen must present new, material evidence that was not available at the time of the earlier hearing and "shall be supported by affidavits or other evidentiary material." 8 U.S.C. § 1229a(c)(7)(B); 8 C.F.R. §§ 1003.2(c)(1), 1003.23(b)(3).
The agency did not err in denying reopening because the evidence Petitioners presented with their motion was available at the time of their 2019 hearing. See id. They supplied an updated psychological evaluation of their younger daughter, which contained facts about an attempted rape or assault in 2017, statements from Petitioners and Blanca's mother attesting to the poor conditions in their hometown of Sinincay, a report on Ecuador's minimum wage between 2000 and 2018, and a 2018 report from a nonprofit focused on global poverty. As the agency found, this evidence was not new and could have been presented at the 2019 hearing. See INS v. Abudu, 485 U.S. 94, 104-05 (1988) (holding that failure to "introduce[] previously unavailable, material evidence" is proper basis for denial of motion to reopen).
Finally, we generally lack jurisdiction to review a challenge to the BIA's decision to refer an appeal to a single board member rather than a three-member panel. Ibragimov v. Gonzales, 476 F.3d 125, 138-39 (2d Cir. 2007). To the extent Petitioners raise a due process challenge to the regulation, we have previously rejected such a challenge to this streamlining regulation. Id.
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.