20-1842
Torres v. Garland
BIA
Christensen, IJ
A206 999 080/085
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.
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 September, two thousand twenty-one.
PRESENT:
JOHN M. WALKER, JR.,
GUIDO CALABRESI,
STEVEN J. MENASHI,
Circuit Judges.
_____________________________________
JOSE REMIGIO LITUMA TORRES, MARIA
MAGDALENA MOLINA PIZARRO,
Petitioners,
v. 20-1842
MERRICK B. GARLAND, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONERS: H. Raymond Fasano, Esq, Youman, Madeo
& Fasano, LLP, New York, NY.
FOR RESPONDENT: Bryan Boynton, Acting Assistant
Attorney General; Russell J.E. Verby,
Senior Litigation Counsel; John D.
Williams, Trial Attorney, Office of
Immigration Litigation, United States
Department of Justice, Washington, DC.
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
DISMISSED.
Petitioners Jose Remigio Lituma Torres and Maria Magdalena
Molina Pizarro, citizens of Ecuador, seek review of a May 21, 2020,
decision of the BIA, affirming an April 30, 2018, decision of an
Immigration Judge (“IJ”) denying their application for
cancellation of removal. See In re Jose Remigio Lituma Torres,
Maria Magdalena Molina Pizarro, Nos. A206 999 080/085 (B.I.A. May
21, 2020), aff’g Nos. A206 999 080/085 (Immig. Ct. N.Y. City Apr.
30, 2018). We assume the parties’ familiarity with the underlying
facts, procedural history, and issues on appeal.
Where, as here, “the BIA briefly affirms the decision of an
IJ and adopt[s] the IJ’s reasoning in doing so, we review the IJ’s
and the BIA’s decisions together.” Wangchuck v. DHS, 448 F.3d 524,
528 (2d Cir. 2006) (internal quotation marks omitted). Aliens
subject to removal may have their removal canceled if they meet
presence and character requirements and “establish[] that removal
would result in exceptional and extremely unusual hardship to
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[their] spouse, parent, or child, who is a citizen of the United
States or an alien lawfully admitted for permanent residence.”
8 U.S.C. § 1229b(b)(1). This is a “very high standard,” Garcia v.
Garland, 847 F. App’x 82, 83 (2d Cir. 2021), which will be met
only when the hardship to a qualifying relative is “substantially
beyond that which ordinarily would be expected to result from the
alien’s deportation,” In re Monreal-Aguinaga, 23 I. & N. Dec. 56,
69 (B.I.A. 2001) (emphasis omitted). Our jurisdiction to review
the agency’s denial of cancellation of removal based on an
applicant’s failure to satisfy the hardship requirement is limited
to constitutional claims and questions of law. 8 U.S.C.
§ 1252(a)(2)(B), (D); see Barco-Sandoval v. Gonzales, 516 F.3d 35,
39 (2d Cir. 2008) (“[W]e [are] deprived of jurisdiction to review
decisions under the [Immigration and Nationality Act] when the
petition for review essentially disputes the correctness of an
IJ’s fact-finding or the wisdom of his exercise of discretion.”).
We dismiss the petition for review because Petitioners have
failed to raise either a constitutional claim or question of law.
Petitioners argue that the IJ mischaracterized the record, failed
to consider critical evidence, and relied on speculation. These
claims are unsupported. The IJ carefully reviewed Petitioners’
claims and found that their allegations did not support a finding
3
of “exceptional and extremely unusual hardship” within the meaning
of the Immigration and Nationality Act. See Special App’x 7-10. In
arguing otherwise, Petitioners “merely summarize[] [their]
interpretation of the evidence and express[] [their] disagreement
with the IJ’s consideration of … the record evidence.” Arguello v.
Lynch, 614 F. App’x 19, 20-21 (2d Cir. 2015). That disagreement is
not enough to bring the petition within our jurisdiction. See
Amarasinghe v. Barr, 831 F. App’x 14, 15 (2d Cir. 2020)
(“[Q]uarrels about fact-finding or the exercise of discretion are
insufficient to establish a colorable legal or constitutional
claim.”) (internal quotation marks and alteration omitted); Sau
Mooi Chai v. Holder, 461 F. App’x 32, 33 (2d Cir. 2012) (“Because
the Petitioners contest only the agency’s weighing of the evidence
of hardship, we lack jurisdiction to consider Petitioners’
challenge to the agency’s denial of cancellation of removal.”).
Petitioners further argue that the IJ and BIA erred by failing
to consider their hardship evidence cumulatively. This is also
incorrect. The IJ explained that he relied on “the record in its
entirety” in finding that Petitioners have not “met their burden
in showing that [their U.S. citizen son] would suffer exceptional
and extremely unusual hardship if they are removed.” Special App’x
10. Accordingly, there is “nothing in the record indicat[ing] that
4
the IJ considered each hardship in isolation, without ultimately
considering cumulative effect.” Barros v. Barr, 797 F. App’x 635,
638 (2d Cir. 2020). Even if the IJ had erred by failing to consider
Petitioners’ hardship evidence cumulatively, that error was
corrected on appeal by the BIA, which expressly stated that it
“[c]onsider[ed] the factors of this case cumulatively” in
affirming the IJ’s decision. Special App’x 4; see Wangchuck, 448
F.3d at 528 (“[W]e review the IJ’s and BIA’s decisions together.”).
Because Petitioners fail to raise a colorable constitutional
or legal claim, we dismiss the petition. See 8 U.S.C.
§ 1252(a)(2)(B), (D); Barco-Sandoval, 516 F.3d at 39–40.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
5
Torres v. Garland
Combined Opinion