20-2637

Tenecela v. Garland

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 

19th day of October, two thousand twenty-one.

PRESENT:

DENNIS JACOBS,

STEVEN J. MENASHI,

Circuit Judges,

LEWIS A. KAPLAN,

District Judge.*

_____________________________________

FREDDY MAURICIO NIEVES TENECELA, 

AKA FREDDY NIEVES, AKA FREDDY 

MAURICIO TENECELA,

Petitioner,

v. 20-2637

MERRICK B. GARLAND, UNITED STATES

ATTORNEY GENERAL,

Respondent.

_____________________________________

FOR PETITIONER: Erin O’Neil-Baker, O’Neil Baker 

Law, LLC, Hartford, CT.

* Judge Lewis A. Kaplan, of the United States District Court for 

the Southern District of New York, sitting by designation.
2

FOR RESPONDENT: Bryan Boynton, Acting Assistant

Attorney General, Civil Division; 

Russell J. E. Verby, Senior 

Litigation Counsel, Office of 

Immigration Litigation; 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.

Petitioner Freddy Mauricio Nieves Tenecela, a citizen of

Ecuador, seeks review of a July 28, 2020, decision of the BIA, 

affirming an April 30, 2018, decision of an Immigration Judge 

(“IJ”) denying his application for cancellation of removal. In re 

Freddy Mauricio Nieves Tenecela, No. A206 781 573 (B.I.A. July 28, 

2020), aff’g No. A206 781 573 (Immig. Ct. Hartford Apr. 30, 2018). 

We assume the parties’ familiarity with the underlying facts and 

procedural history.

We have reviewed the IJ’s decision as modified by the BIA, 

i.e., minus the physical presence finding that the BIA did not 

reach. See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 

522 (2d Cir. 2005). A deportable or inadmissible alien such as 

Tenecela may have his removal cancelled if, as relevant here, the 

alien “establishes that removal would result in exceptional and 
3

extremely unusual hardship to the alien’s 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)(D). The hardship 

to a qualifying relative “must be substantially beyond the ordinary 

hardship that would be expected when a close family member leaves 

this country.” In re Monreal-Aguinaga, 23 I. & N. Dec. 56, 62 

(B.I.A. 2001) (internal quotation marks omitted). Our jurisdiction 

to review the agency’s denial of cancellation of removal based on 

an alien’s failure to satisfy the hardship requirement is limited 

to colorable constitutional claims and questions of law. 8 U.S.C. 

§ 1252(a)(2)(B), (D); Barco-Sandoval v. Gonzales, 516 F.3d 35, 39-

41 (2d Cir. 2008). 

The agency determined that Tenecela failed to show that his 

qualifying relatives—his three U.S. citizen children—would suffer 

exceptional and extremely unusual hardship if he were removed to

Ecuador because he testified that they will remain in the United 

States with their respective mothers and alleged only that they 

will suffer the unfortunate but ordinary emotional hardship to be 

expected upon a father’s removal from the country. Tenecela does

not raise a colorable constitutional claim or question of law over 

which we have jurisdiction. He argues that the agency erred in 

determining that, although one of his children receives assistance 

with reading, that child does not have a serious learning 
4

disability or an unusual or significant medical history. That 

argument is frivolous because the agency made no such 

determinations, and no learning disabilities or medical conditions 

were alleged before the IJ. Accordingly, because Tenecela has not 

raised a colorable constitutional claim or question of law 

regarding the agency’s dispositive hardship determination, we 

dismiss the petition for lack of jurisdiction, see 8 U.S.C. §§

1229b(b), 1252(a)(2)(B), (D); Barco-Sandoval, 516 F.3d at 39-41, 

and do not reach the agency’s alternative discretionary denial of 

cancellation, see INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As 

a general rule courts and agencies are not required to make 

findings on issues the decision of which is unnecessary to the 

results they reach.”). 

For the foregoing reasons, the petition for review is 

DISMISSED.

FOR THE COURT: 

Catherine O’Hagan Wolfe,

Clerk of Court