15-2717
Orellana Merchan v. Sessions
BIA
A088 445 134
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 23rd day of February, two thousand seventeen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 ROSEMARY S. POOLER,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 JAIME FERNANDO ORELLANA MERCHAN,
14 Petitioner,
15
16 v. 15-2717
17 NAC
18 JEFF SESSIONS, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Gregory C. Osakwe, Hartford, CT.
24
25 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
26 Assistant Attorney General; Anthony
27 P. Nicastro, Assistant Director;
28 Dana M. Camilleri, Trial Attorney,
29 Office of Immigration Litigation,
30 United States Department of Justice,
31 Washington, DC.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review is
4 DISMISSED for lack of jurisdiction.
5 Petitioner Jaime Fernando Orellana Merchan, a native and
6 citizen of Ecuador, seeks review of an August 7, 2015, decision
7 of the BIA denying his motion to reconsider a May 2015 BIA
8 decision, which affirmed a decision of an Immigration Judge
9 (“IJ”) denying Orellana’s application for cancellation of
10 removal. In re Jaime Fernando Orellana Merchan, No. A088 445
11 134 (B.I.A. Aug. 7, 2015). We assume the parties’ familiarity
12 with the underlying facts and procedural history in this case.
13 We review denials of motions to reconsider for abuse of
14 discretion. Zhao Quan Chen v. Gonzales, 492 F.3d 153, 154 (2d
15 Cir. 2007). An alien seeking reconsideration must “specify the
16 errors of law or fact in the previous order and [support the
17 motion with] pertinent authority.” 8 U.S.C.
18 § 1229a(c)(6)(C); 8 C.F.R. § 1003.2(b)(1); see also Jian Hui
19 Shao v. Mukasey, 546 F.3d 138, 173 (2d Cir. 2008).
20 Orellana challenges the agency’s underlying determination
21 that he failed to establish that his removal would result in
22 exceptional and extremely unusual hardship to his U.S.-citizen
23 children. We lack jurisdiction over that challenge because the
2
1 petition for review was not timely filed from the BIA’s May 2015
2 decision. See Stone v. INS, 514 U.S. 386, 405 (1995) (requiring
3 separate timely petitions for review of the final removal order
4 and the denial of a motion to reconsider or reopen); Kaur v.
5 BIA, 413 F.3d 232, 233 (2d Cir. 2005) (same); see also 8 U.S.C.
6 § 1252(b)(1)(“The petition for review must be filed not later
7 than 30 days after the date of the final order of removal.”);
8 Luna v. Holder, 637 F.3d 85, 92 (2d Cir. 2011). While
9 Orellana’s brief specifies that he is “petition[ing] for review
10 of the BIA’s decision denying his motion to reconsider,”
11 Petitioner’s Br. (“PB”) at 18, it makes no arguments concerning
12 the denial of reconsideration and challenges only the agency’s
13 underlying denial of cancellation of removal.
14 Even construing Orellana’s challenges as pertaining to the
15 BIA’s denial of reconsideration, we still lack jurisdiction
16 over the petition. Notwithstanding Orellana’s assertions to
17 the contrary, it is well settled that we generally lack
18 jurisdiction to review the agency’s determination that an
19 applicant has failed to establish “exceptional and extremely
20 unusual hardship” because that is a discretionary determination
21 reserved for the agency. See 8 U.S.C. § 1252(a)(2)(B);
22 Barco-Sandoval v. Gonzales, 516 F.3d 35, 39 (2d Cir. 2008). We
23 nevertheless have jurisdiction to review constitutional claims
3
1 and questions of law, 8 U.S.C. § 1252(a)(2)(D), which may
2 “‘arise for example in fact-finding which is flawed by an error
3 of law’ or ‘where a discretionary decision is argued to be an
4 abuse of discretion because it was made without rational
5 justification or based on a legally erroneous standard,’”
6 Barco-Sandoval, 516 F.3d at 39 (quoting Xiao Ji Chen v. U.S.
7 Dep’t of Justice, 471 F.3d 315, 329 (2d Cir. 2006)). To
8 ascertain whether a petitioner raises constitutional
9 challenges or questions of law over which we have jurisdiction,
10 we “study the argument[] asserted [and] . . . determine,
11 regardless of the rhetoric employed in the petition, whether
12 it merely quarrels over the correctness of the factual findings
13 or justification for the discretionary choices, in which case
14 the court would lack jurisdiction.” Xiao Ji Chen, 471 F.3d at
15 329.
16 Orellana’s assertion that the IJ “downplay[ed]” the
17 seriousness of his daughter’s foot condition, PB at 25, fails
18 to raise a constitutional claim or a question of law. Compare
19 Xiao Ji Chen, 471 F.3d at 329-30 (finding no constitutional
20 claim or question of law raised), with Mendez v. Holder, 566
21 F.3d 316, 323 (2d Cir. 2009) (finding error of law in a hardship
22 determination where “facts important to the subtle
23 determination of ‘exceptional and extremely unusual hardship’
4
1 have been totally overlooked and others have been seriously
2 mischaracterized” (emphasis added)). In any event, neither
3 the BIA nor the IJ “totally overlooked” or “seriously
4 mischaracterized” Orellana’s daughter’s foot condition; both
5 the IJ and the BIA considered it in the context of the hardship
6 determination, and Orellana did not submit any medical
7 documentation to support a diagnosis or the condition’s
8 severity. See Mendez, 566 F.3d at 323.
9 Lastly, as the Government argues, Orellana’s remaining
10 arguments are unexhausted. See Lin Zhong v. U.S. Dep’t of
11 Justice, 480 F.3d 104, 123 (2d Cir. 2007) (providing judicially-
12 imposed issue exhaustion “will usually mean that issues not
13 raised to the BIA will not be examined by the reviewing court”).
14 Orellana did not previously raise his arguments that he suffered
15 a violation of the Vienna Convention and that his attorney
16 before the agency was ineffective. Orellana’s ineffective
17 assistance claim is also procedurally deficient because he has
18 yet to comply with the Lozada requirements. See Jian Yun Zheng
19 v. U.S. Dep’t of Justice, 409 F.3d 43, 46 (2d Cir. 2005)
20 (requiring substantial compliance with Lozada to preserve an
21 ineffective assistance of counsel claim); see also In re Lozada,
22 19 I. & N. Dec. 637 (B.I.A. 1988).
5
1 For the foregoing reasons, the petition for review is
2 DISMISSED for lack of jurisdiction. As we have completed our
3 review, any pending motion for a stay of removal in this petition
4 is DISMISSED as moot
5 FOR THE COURT:
6 Catherine O’Hagan Wolfe, Clerk
6