12-4236
Duarte v. Holder
BIA
A073 570 007
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
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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 18th day of November, two thousand thirteen.
PRESENT:
JON O. NEWMAN,
JOSÉ A. CABRANES,
PETER W. HALL,
Circuit Judges.
_____________________________________
NERY ORLANDO DUARTE,
Petitioner,
v. 12-4236
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Bruno J. Bembi, Hempstead, New York.
FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
General; Blair T. O’Connor,
Assistant Director; Remi Da Rocha-
Afodu, 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
decision of the Board of Immigration Appeals (“BIA”), it is
hereby ORDERED, ADJUDGED, AND DECREED that the petition for
review is DENIED.
Petitioner Nery Orlando Duarte, a native and citizen of
Guatemala, seeks review of a September 26, 2012, order of
the BIA denying his motion to reopen. In re Nery Orlando
Duarte, No. A073 570 007 (B.I.A. Sept. 26, 2012). We assume
the parties’ familiarity with the underlying facts and
procedural history in this case.
We review the BIA’s denial of a motion to reopen for
abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d
Cir. 2006). While we lack jurisdiction to review
discretionary denials of cancellation, 8 U.S.C.
§ 1252(a)(2)(B)(i), including in the motion to reopen
context, see Durant v. INS, 393 F.3d 113, 115 (2d Cir.
2004), we retain jurisdiction to review constitutional
claims and questions of law. 8 U.S.C. § 1252(a)(2)(D). In
this case, Duarte’s argument that he was held to an
inappropriately stringent standard for reopening is a
question of law over which the Court retains jurisdiction.
8 U.S.C. § 1252(a)(2)(D); Barco-Sandoval v. Gonzales, 516
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F.3d 35, 40 (2d Cir. 2008) (“the argument that a
discretionary decision was based on a legally erroneous
standard raises a question of law”).
Here, Duarte alleged only that he had a qualifying
relative for cancellation, his daughter, without specifying
any exceptional or extremely unusual hardship, beyond the
fact that he provided financial support for her. The BIA
acknowledged these factors, and there is no indication that
it used too stringent a standard in its determination that
they did not demonstrate a prima facie case of exceptional
and extremely unusual hardship. INS v. Abudu, 485 U.S. 94,
104 (1988); Matter of Monreal-Aguinaga, 23 I&N Dec. 56, 65
(BIA 2001) (holding that an applicant for cancellation must
demonstrate hardship to a qualifying family member that is
“substantially different from, or beyond, that which would
normally be expected from the deportation of an alien with
close family members here”). Additionally, the BIA did not
abuse its discretion in denying reconsideration, as Duarte
failed to identify any error in the BIA’s prior decision.
See 8 U.S.C. § 1229a(c)(6); 8 C.F.R. § 1003.2(b)(1); Ke Zhen
Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 90 (2d Cir.
2001).
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For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of
removal that the Court previously granted in this petition
is VACATED, and any pending motion for a stay of removal in
this petition is DISMISSED 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
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