10-4673-ag
Rojas v. Holder
BIA
Straus, IJ
A079 129 849
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 2nd day of February, two thousand twelve.
PRESENT:
AMALYA L. KEARSE,
JOSÉ A. CABRANES,
ROBERT D. SACK,
Circuit Judges.
________________________________________
KLEBER POMPILIO PACHECO ROJAS,
Petitioner,
v. 10-4673-ag
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
________________________________________
FOR PETITIONER: Glenn L. Formica, New Haven, CT.
FOR RESPONDENT: Tony West, Assistant Attorney General; Anthony W.
Norwood, Senior Litigation Counsel; Manuel A. Palau,
Trial Attorney, Office of Immigration Litigation, United
States Department of Justice, 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 DENIED in part and DISMISSED in part.
Kleber Pompilio Pacheco Rojas, a native and citizen of Ecuador, seeks review of an October
20, 2010, order of the BIA affirming the June 12, 2009, decision of Immigration Judge (“IJ”)
Michael W. Straus, denying his motion for a continuance and his application for cancellation of
removal. In re Kleber Pompilio Pacheco Rojas, No. A079 129 849 (B.I.A. Oct. 20, 2010), aff’g No. A079
129 849 (Immig. Ct. Hartford, CT, June 12, 2009). We assume the parties’ familiarity with the
underlying facts and procedural history in this case.
Under the circumstances of this case, we have reviewed the IJ’s decision as supplemented by
the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).
I. Motion for a Continuance
We review the BIA’s affirmance of an IJ’s decision to deny a motion for a continuance for
an abuse of discretion. See Sanusi v. Gonzales, 445 F.3d 193, 199 (2d Cir. 2006). An IJ abuses his
discretion only “if (1) his decision rests on an error of law (such as application of the wrong legal
principle) or a clearly erroneous factual finding or (2) his decision . . . cannot be located within the
range of permissible decisions.” Morgan v. Gonzales, 445 F.3d 549, 551-52 (2d Cir. 2006) (internal
quotation marks and brackets omitted). As we have held previously, the IJs denial of a continuance,
while an I-130 visa petition is pending on appeal to the BIA, is not an abuse of discretion where the
petition was not “prima facie approvable.” See Pedreros v. Keisler, 503 F.3d 162, 166 (2d Cir. 2007)
(finding no abuse of discretion due to the lack of “some evidence or argument” that the visa petition
denial was incorrect).
Although Rojas argues that the IJ abused his discretion because he failed to consider all of
the factors mentioned in Matter of Hashmi, 24 I. & N. Dec. 785 (B.I.A. 2009), including whether his
adjustment application would warrant a favorable exercise of discretion, in Hashmi, the BIA merely
permitted the agency to consider other factors in addition to the central inquiry as to the likelihood
of success on the adjustment application. Id. at 790. Here, the United States Citizenship and
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Immigration Services (“USCIS”) had already denied Rojas’s visa petition, making it no longer prima
facie approvable. See Pedreros, 503 F.3d at 166. Furthermore, Rojas failed to provide persuasive
explanations as to why the USCIS’s decision was erroneous, and the government had objected to a
continuance. See id.; Hashmi, 24 I. & N. Dec. at 790. Therefore, the BIA did not abuse its broad
discretion in affirming the IJ’s denial of Rojas’s motion for a continuance. See Morgan, 445 F.3d at
551; Sanusi, 445 F.3d at 199.
II. Cancellation of Removal Application
Generally we do not have jurisdiction to review the agency’s denial of an application for
cancellation of removal under 8 U.S.C. § 1229b(b) based on an alien’s failure to establish
“exceptional and extremely unusual hardship.” See 8 U.S.C. § 1252(a)(2)(B); see also Barco-Sandoval v.
Gonzales, 516 F.3d 35, 39 (2d Cir. 2008). However, pursuant to the REAL ID Act, we retain
jurisdiction to review non-frivolous constitutional claims and questions of law, and we review such
questions de novo. See 8 U.S.C. § 1252(a)(2)(D); Vargas-Sarmiento v. U.S. Dep’t of Justice, 448 F.3d 159,
164-65 (2d Cir. 2006). We dismiss the petition as to cancellation because although the application of
an improper standard when exercising discretion constitutes a question of law, Wallace v. Gonzales,
463 F.3d 135, 138 (2d Cir. 2006), Rojas’s argument does not present a non-frivolous question of law,
see Barco-Sandoval, 516 F.3d at 40.
Rojas argues that the IJ applied a hardship standard inconsistent with BIA precedent. This
argument is unavailing. Although the BIA has noted that an alien need not demonstrate hardship that
rises to an “unconscionable” level, the IJ properly required Rojas to establish hardship that is
“substantially beyond” that which ordinarily would be expected when a close family member leaves
this country. See Matter of Monreal, 23 I. & N. Dec. 56, 60, 62 (B.I.A. 2001); see also Matter of Recinas, 23
I. & N. Dec. 467, 468 (B.I.A. 2002). In contrast to the petitioner in Recinas, where the BIA found the
hardship standard met, Rojas’s wife testified that Rojas’s U.S.-citizen children would remain in the
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United States. Although Rojas testified that his removal would cause his family members great
emotional distress and deprive them of his income, economic detriment to qualifying relatives alone
does not meet the hardship standard, and emotional strain is not an unusual consequence of
deportation. See Matter of Andazola-Rivas, 23 I. & N. Dec. 319, 322 (B.I.A. 2002). Because Rojas has
not raised a question of law substantial enough to invoke our jurisdiction, see Barco-Sandoval, 516 F.3d
at 40, the petition is dismissed to the extent it challenges the agency’s denial of cancellation of
removal.
For the foregoing reasons, the petition for review is DENIED in part and DISMISSED in part.
As we have completed our review, the pending motion for a stay of removal in this petition is
DISMISSED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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