13-1984 

Fernandez v. Holder

 BIA

 A042 091 035

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.

1 At a stated term of the United States Court of Appeals

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

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

on the 22nd 4 day of April, two thousand fourteen.

5

6 PRESENT:

7 JOHN M. WALKER, JR.,

8 JOSÉ A. CABRANES,

9 RAYMOND J. LOHIER, JR.,

10 Circuit Judges.

11 _________________________________________

12

13 JACQUELINE DEL CARMEN FERNANDEZ,

14 AKA JACKELINE FERNANDEZ,

15 Petitioner, 

16

17 v. 13-1984

18 NAC 

19 ERIC H. HOLDER, JR., UNITED STATES 

20 ATTORNEY GENERAL, 

21 Respondent.

22 _________________________________________

23

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

25

26 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney

27 General; David V. Bernal, Assistant

28 Director; Anthony C. Payne, Senior

29 Litigation Counsel, Office of

30 Immigration Litigation, United

31 States Department of Justice,

32 Washington, D.C.
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

4 is DISMISSED.

5 Petitioner Jacqueline Del Carmen Fernandez, a native

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

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

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

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

10 familiarity with the underlying facts and procedural history

11 of the case. 

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

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

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

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

16 review the BIA’s factual findings under the substantial

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

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

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

20 removable by reason of having committed” an aggravated

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

22 underlying removal order would be prohibited by

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

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

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

4 2004). Notwithstanding these provisions, we nonetheless

5 retain jurisdiction to review constitutional claims and

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

7 In order to ascertain whether a petitioner raises

8 constitutional challenges or questions of law over which we

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

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

11 petition, whether it merely quarrels over the correctness of

12 the factual findings or justification for the discretionary

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

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

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

16 constitutional claims or questions of law. Fernandez first

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

18 establish a change in country conditions. A determination

19 regarding whether the evidence submitted established a

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

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

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

3
1 violated her due process right. However, Fernandez’s

2 specific claim is that her due process right was violated

3 because the BIA did not properly consider the evidence of

4 changed country conditions. This argument “merely quarrels

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

6 329. 

7 Because the BIA’s conclusion that Fernandez did not

8 establish changed country conditions was dispositive of her

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

10 her prima facie eligibility for relief. 

11 For the foregoing reasons, the petition for review is

12 DISMISSED.

13 FOR THE COURT: 

14 Catherine O’Hagan Wolfe, Clerk

15

16

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