13-1984 Fernandez v. Holder BIA A042 091 035 

## UNITED STATES COURT OF APPEALS **FOR THE SECOND CIRCUIT** 

# SUMMARY ORDER

**RULINGS BY SU MMARY ORDER DO NOT**  **HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER J** **ANUARY 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 1 

### for the Second Circuit, held at the Thurgood Marshall United 2 

### States Courthouse, 40 Foley Square, in the City of New York, 3 

### on the 22**nd**

### day of April, two thousand fourteen. 4 5 

### PRESENT: 6 

### JOHN M. WALKER, JR., 7 

### JOSÉ A. CABRANES, 8 

### RAYMOND J. LOHIER, JR., 9 

### Circuit Judges**.** 10



### _________________________________________ 11 12 

### JACQUELINE DEL CARMEN FERNANDEZ, 13 

### AKA JACKELINE FERNANDEZ, 14 

### Petitioner**,** 15 16 

### v. 13-1984 17 

### NAC 18 

### ERIC H. HOLDER, JR., UNITED STATES 19 

### ATTORNEY GENERAL, 20 

### Respondent **.** 21



### _________________________________________ 22 23 

### FOR PETITIONERS: Anayancy R. Housman, Elizabeth, NJ. 24 25 

### FOR RESPONDENT: Stuart F. Delery, Assistant Attorney 26 

### General; David V. Bernal, Assistant 27 

### Director; Anthony C. Payne, Senior 28 

### Litigation Counsel, Office of 29 

### Immigration Litigation, United 30 

### States Department of Justice, 31 

### Washington, D.C. 32

### UPON DUE CONSIDERATION of this petition for review of a 1 

### Board of Immigration Appeals (“BIA”) decision, it is hereby 2 

### ORDERED, ADJUDGED, AND DECREED that the petition for review 3 

### is DISMISSED. 4 

### Petitioner Jacqueline Del Carmen Fernandez, a native 5 

### and citizen of the Dominican Republic, seeks review of the 6 

### April 24, 2013, decision of the BIA denying her motion to 7


### reopen.In re Jacqueline Del Carmen Fernandez , No. A042 091 8 

### 035 (B.I.A. Apr. 24, 2013). We assume the parties’ 9 

### familiarity with the underlying facts and procedural history 10 

### of the case. 11 

### We review the denial of a motion to reopen for abuse of 12 

### discretion, Kaur v. BIA, 413 F.3d 232, 233 (2d Cir. 2005) 13 

### (per curiam), and when the BIA considers relevant evidence 14 

### of country conditions in evaluating a motion to reopen, we 15 

### review the BIA’s factual findings under the substantial 16 

### evidence standard. See Jian Hui Shao v. Mukasey, 546 F.3d 17 

### 138, 169 (2d Cir. 2008). However, we lack jurisdiction to 18 

### review any final order of removal against an alien “who is 19 

### removable by reason of having committed” an aggravated 20 

### felony. 8 U.S.C. § 1252(a)(2)(C). Where review of the 21 

### underlying removal order would be prohibited by 22



### 2

### § 1252(a)(2)(C), the jurisdictional bar has been extended to 1 

### petitions seeking review of the BIA’s denial of a motion to 2


### reopen.See Durant v. INS,393 F.3d 113, 115–16 (2d Cir. 3 

### 2004). Notwithstanding these provisions, we nonetheless 4 

### retain jurisdiction to review constitutional claims and 5 

### “questions of law.” 8 U.S.C. § 1252(a)(2)(D). 6 

### In order to ascertain whether a petitioner raises 7 

### constitutional challenges or questions of law over which we 8 

### have jurisdiction, we “study the arguments asserted [and] . 9 

### . . determine, regardless of the rhetoric employed in the 10 

### petition, whether it merely quarrels over the correctness of 11 

### the factual findings or justification for the discretionary 12 

### choices, in which case the court would lack jurisdiction.” 13 

### Xiao Ji Chen v. U.S. Dep’t of Justice , 471 F.3d 315, 329 (2d 14 

### Cir. 2006). In this case, Fernandez does not raise any 15 

### constitutional claims or questions of law. Fernandez first 16 

### argues that the BIA erred in determining that she did not 17 

### establish a change in country conditions. A determination 18 

### regarding whether the evidence submitted established a 19 

### change in country conditions is a factual finding, and we 20 

### lack jurisdiction to review it. See id . at 330. Fernandez 21 

### also argues that the agency’s denial of her motion to reopen 22



### 3

### violated her due process right. However, Fernandez’s 1 

### specific claim is that her due process right was violated 2 

### because the BIA did not properly consider the evidence of 3 

### changed country conditions. This argument “merely quarrels 4 

### over the correctness of the factual findings.” See id . at 5 

### 329. 6 

### Because the BIA’s conclusion that Fernandez did not 7 

### establish changed country conditions was dispositive of her 8 

### motion to reopen, we do not address her argument regarding 9 

### her prima facie eligibility for relief. 10 

### For the foregoing reasons, the petition for review is 11


### DISMISSED. 12


### FOR THE COURT: 13 

### Catherine O’Hagan Wolfe, Clerk 14 15 16



### 4