10-1332-ag
Macancela 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 18th day of April, two thousand eleven.
PRESENT:
AMALYA L. KEARSE,
ROGER J. MINER,
DENNY CHIN,
Circuit Judges.
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LUIS HERIBERTO MACANCELA,
Petitioner,
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ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
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FOR PETITIONER: H. RAYMOND FASANO, Madeo & Fasano, New York,
New York.
FOR RESPONDENT: FRANKLIN M. JOHNSON, Trial Attorney, Office
of Immigration Litigation (Tony West,
Assistant Attorney General, Paul Fiorino,
Senior Litigation Counsel, on the brief), for
Eric H. Holder, Jr., United States Attorney
General, 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.
Luis Heriberto Macancela, a native and citizen of
Ecuador, petitions for review of a March 11, 2010 final order of
removal of the BIA affirming a March 10, 2009 decision of
Immigration Judge ("IJ") Philip Verrillo denying Macancela's
application for cancellation of removal. See 8 U.S.C.
§ 1229b(b)(1). The IJ determined that Macancela failed to
establish that: (1) his removal would result in "exceptional and
extremely unusual hardship" to his three U.S. citizen children,
§ 1229b(b)(1)(D), and (2) he "has been a person of good moral
character," § 1229b(b)(1)(B), in light of his history of arrests
for drunk driving and domestic violence, see In re Macancela, No.
A029 652 926 (B.I.A. Mar. 11, 2010), aff'g No. A029 652 926
(Immig. Ct. Hartford, Conn. Mar. 10, 2009). We assume the
parties' familiarity with the facts and procedural history of the
case.
On a petition for review of a denial of an application
for cancellation of removal, we have jurisdiction only to
consider constitutional claims and questions of law, see 8 U.S.C.
§ 1252(a)(2)(B)(i), (D), and we review those issues de novo, see
Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008). In addition,
because the BIA did not explicitly adopt the IJ's decision in its
analysis, we review only the BIA's decision, Aliyev v. Mukasey,
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549 F.3d 111, 115-16 (2d Cir. 2008), which was based on its
conclusion that Macancela had not shown that his removal would
result in "exceptional and extremely unusual hardship" to his
children, see 8 U.S.C. § 1229b(b)(1)(D). The decision as to
whether an application for cancellation of removal should be
granted based on a claim of hardship is a determination committed
to the agency's discretion, and we lack jurisdiction to review
that decision, see § 1252(a)(2)(B)(i), "except in those rare
cases where the BIA decision . . . is made without rational
justification or based on an erroneous legal standard, or rests
on fact-finding which is flawed by an error of law," Mendez v.
Holder, 566 F.3d 316, 322 (2d Cir. 2009) (per curiam) (internal
quotation marks and citations omitted).
Macancela argues that the BIA so overestimated his
ability to support his family once he is removed and so
understated the extent of his son's speech disabilities that its
conclusions constituted an error of law. But Macancela fails to
show, as he must to give the court jurisdiction, that "some facts
important to the subtle determination of [hardship] have been
totally overlooked and others have been seriously
mischaracterized." Id. at 323. Rather, the record supports the
BIA's conclusion that Macancela's family in Ecuador may be able
to offer financial assistance and that Macancela is likely to
find agricultural or construction work. The record also
indicates that the therapy Macancela's son presently receives
will continue in his absence. We do not doubt that removal will
be difficult for Macancela's family, but "a petitioner cannot use
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the rhetoric of a 'constitutional claim' or 'question of law' to
disguise what is essentially a quarrel about fact-finding or the
exercise of discretion," Barco-Sandoval v. Gonzalez, 516 F.3d 35,
39 (2d Cir. 2008) (internal quotation marks and brackets
omitted), that we lack jurisdiction to review, 8 U.S.C. §
1252(a)(2)(B)(I).
We have considered petitioner's other arguments and
conclude they are without merit. Accordingly, the petition for
review is DISMISSED for lack of jurisdiction.
FOR THE COURT:
CATHERINE O'HAGAN WOLFE, CLERK
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