15-2088
Funes Menjivar v. Sessions
BIA
A095 041 878
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 TO 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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 16th day of February, two thousand seventeen.
5
6 PRESENT:
7 RALPH K. WINTER,
8 PETER W. HALL,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 MANUEL DE JESUS FUNES MENJIVAR,
14 Petitioner,
15
16 v. 15-2088
17 NAC
18 JEFF SESSIONS, UNITED STATES
19 ATTORNEY GENERAL,1
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Maggy T. Duteau, New York, NY.
24
25 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
26 Assistant Attorney General; Greg D.
27 Mack, Senior Litigation Counsel;
1
Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney
General Jeff Sessions is automatically substituted for former
Attorney General Loretta E. Lynch as the Respondent in this case.
1 Christina P. Greer, Trial Attorney,
2 Office of Immigration Litigation,
3 United States Department of Justice,
4 Washington, DC.
5
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review is
9 DISMISSED.
10 Petitioner Manuel De Jesus Funes Menjivar, a native and
11 citizen of El Salvador, seeks review of a May 29, 2015 decision
12 of the BIA denying his motion to reopen. In re Manuel De Jesus
13 Funes Menjivar, No. A095 041 878 (B.I.A. May 29, 2015). We
14 assume the parties’ familiarity with the underlying facts and
15 procedural history in this case.
16 In the main, Funes challenges the IJ’s reasoning for
17 denying cancellation. But he did not petition for review of
18 that decision. See Stone v. INS, 514 U.S. 386, 405 (1995)
19 (requiring separate timely petitions for review of the final
20 removal order and the denial of a motion to reconsider or
21 reopen); Kaur v. BIA, 413 F.3d 232, 233 (2d Cir. 2005) (per
22 curiam) (same). Funes’s contentions that the IJ failed to
23 consider the implications of El Salvador’s temporary protective
24 status or his country conditions evidence are therefore not
25 before the Court.
2
1 Funes also challenges the BIA’s denial of his motion to
2 reopen. As a general matter, we review such a decision “for
3 abuse of discretion, mindful that motions to reopen ‘are
4 disfavored.’” Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006)
5 (quoting INS v. Doherty, 502 U.S. 314, 322-23 (1992)). But we
6 lack jurisdiction to review the agency’s denial of cancellation
7 of removal based on an alien’s failure to establish “exceptional
8 and extremely unusual hardship,” 8 U.S.C. 1229b(b)(1)(D),
9 because that is a discretionary determination reserved for the
10 agency, see 8 U.S.C. § 1252(a)(2)(B); Barco-Sandoval v.
11 Gonzales, 516 F.3d 35, 39 (2d Cir. 2008). We nevertheless
12 retain jurisdiction to review constitutional claims and
13 questions of law with respect to cancellation, 8 U.S.C.
14 § 1252(a)(2)(D), which may “‘arise for example in fact-finding
15 which is flawed by an error of law’ or ‘where a discretionary
16 decision is argued to be an abuse of discretion because it was
17 made without rational justification or based on a legally
18 erroneous standard,’” Barco-Sandoval, 516 F.3d at 39 (quoting
19 Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d
20 Cir. 2006)). To ascertain whether a petitioner raises
21 constitutional challenges or questions of law over which this
22 Court has jurisdiction, we “study the argument[] asserted
3
1 [and] . . . determine, regardless of the rhetoric employed in
2 the petition, whether it merely quarrels over the correctness
3 of the factual findings or justification for the discretionary
4 choices, in which case the court would lack jurisdiction.”
5 Xiao Ji Chen, 471 F.3d at 329. For example, we have found an
6 error of law in a hardship determination where “facts important
7 to the subtle determination of ‘exceptional and extremely
8 unusual hardship’ have been totally overlooked and others have
9 been seriously mischaracterized.” Mendez v. Holder, 566 F.3d
10 316, 323 (2d Cir. 2009).
11 Here, we lack jurisdiction over the petition: Funes’s
12 assertion that the BIA failed to consider his daughter’s speech
13 condition merely employs the rhetoric of a question of law to
14 challenge the agency’s discretionary hardship determination.
15 See Xiao Ji Chen, 471 F.3d at 329. The BIA reviewed Funes’s
16 evidence and concluded that reopened proceedings would not
17 reach a different outcome. See Matter of Coelho, 20 I. & N.
18 Dec. 464, 473 (B.I.A. 1992); 8 C.F.R. § 1003.2(c). That
19 determination, in any event, was reasonable. Some of the
20 school reports predated the merits hearing and therefore were
21 not new evidence. Those that postdated the hearing did not
22 reflect substantial impairment. The BIA likewise had the
4
1 discretion to find that the reports failed to demonstrate that
2 Funes’s daughter’s educational needs, such as they are, will
3 go unaddressed if she remains in the United States without her
4 father. Diminished educational opportunities rarely
5 constitute exceptional and extremely unusual hardship. See In
6 re Andazola-Rivas, 23 I. & N. Dec. 319, 323 n.1 (B.I.A. 2002)
7 (“[A] finding that diminished educational opportunities result
8 in ‘exceptional and extremely unusual hardship’ would mean that
9 cancellation of removal would be granted in virtually all cases
10 involving [applicants] from developing countries who have young
11 United States citizen or lawful permanent resident children[,
12 which] . . . is not consistent with congressional intent.”).
13 For the foregoing reasons, the petition for review is
14 DISMISSED. As we have completed our review, any stay of removal
15 that the Court previously granted in this petition is VACATED,
16 and any pending motion for a stay of removal in this petition
17 is DISMISSED as moot. Any pending request for oral argument
18 in this petition is DENIED in accordance with Federal Rule of
19 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
20 34.1(b).
21 FOR THE COURT:
22 Catherine O=Hagan Wolfe, Clerk
5