14-216-ag

Arguello v. Lynch

BIA

Straus, IJ

A087 411 677

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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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 Thurgood Marshall United States

Courthouse, 40 Foley Square, in the City of New York, on the 9th

day of June, two thousand fifteen.

PRESENT:

ROSEMARY S. POOLER,

BARRINGTON D. PARKER,

RICHARD C. WESLEY,

Circuit Judges. 

_______________________________________

MARTHA PATRICIA ARGUELLO,

Petitioner, 

 v. 14-216-ag

LORETTA E. LYNCH, UNITED STATES 

ATTORNEY GENERAL,

Respondent.

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______________________________________

FOR PETITIONER: Elyssa N. Williams, Formica Williams,

P.C., New Haven, CT.

FOR RESPONDENT: Colette J. Winston, Trial Attorney;

Stuart F. Delery, Assistant Attorney

Pursuant to Federal Rule of Appellate Procedure 1

43(c)(2), Attorney General Loretta E. Lynch is automatically

substituted for former Attorney General Eric H. Holder, Jr.
General; Jennifer Williams, Senior

Litigation Counsel; Office of

Immigration Litigation, U.S. 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

DISMISSED for lack of jurisdiction.

Petitioner Martha Patricia Arguello, a native and citizen of

Ecuador, seeks review of a December 26, 2013 decision of the BIA

affirming the October 3, 2012 decision of an Immigration Judge

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

re Martha Patricia Arguello, No. A087 411 677 (B.I.A. Dec. 26,

2013), aff’g No. A087 411 677 (Immig. Ct. Hartford Oct. 3, 2012).

We have considered both the IJ’s and the BIA’s opinions “for the

sake of completeness.” Wangchuck v. Dep’t of Homeland Sec., 448

F.3d 524, 528 (2d Cir. 2006). We assume the parties’ familiarity

with the underlying facts and procedural history in this case.

 We lack jurisdiction to review the agency’s denial of

Arguello’s application for cancellation of removal. The Attorney

General enjoys discretionary authority to grant cancellation of

removal where an applicant (1) “has been physically present in

the United States for a continuous period of not less than 10

years immediately preceding the date of such application;” (2)

“has been a person of good moral character during such period;”

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(3) has not been convicted of an enumerated criminal offense; and

(4) “establishes that removal would result in exceptional and

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)(A)-(D);

Sumbundu v. Holder, 602 F.3d 47, 49–50 (2d Cir. 2010). Here the

BIA affirmed the IJ's decision to deny Arguello's application for

cancellation of removal after deciding that she had failed to

establish that her removal would result in exceptional and

extremely unusual hardship to a qualifying family member. Because

this is a discretionary finding, our jurisdiction to review the

agency's determination is limited to “constitutional claims or

questions of law,” 8 U.S.C. § 1252(a)(2)(B), (D), such as in

“those rare cases where the . . . decision on whether this kind

of hardship exists . . . rests on fact-finding which is flawed by

an error of law,” Mendez v. Holder, 566 F.3d 316, 322 (2d Cir.

2009) (internal quotation marks and citations omitted).

In order to ascertain whether a petitioner raises

constitutional challenges or questions of law over which we have

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

determine, regardless of the rhetoric employed in the petition,

whether it merely quarrels over the correctness of the factual

findings or justification for the discretionary choices, in which 

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case the court would lack jurisdiction.” Xiao Ji Chen v. U.S.

Dep't of Justice, 471 F.3d 315, 329 (2d Cir. 2006).

Although Arguello contends that the agency committed an

error of law by mischaracterizing and overlooking factual

evidence in the record, her arguments amount merely to “a quarrel

about fact-finding [and] the exercise of discretion,” id. at 330,

which does not raise a "colorable question of law that we have

jurisdiction to review," Barco-Sandoval v. Gonzales, 516 F.3d 35,

40 (2d Cir. 2008) (internal quotation marks omitted). In broadly

asserting that the IJ mischaracterized evidence of her daughter’s

physical and cognitive disabilities and made findings contrary to

the record, Arguello merely summarizes her interpretation of the

evidence and expresses her disagreement with the IJ’s

consideration of her testimony and the record evidence. Further,

Arguello’s contention that the IJ overlooked the severity of

particular aspects of her daughter’s developmental deficiencies

contests only the IJ’s weighing of the evidence of hardship.

Review of these discretionary determinations here is beyond the

scope of our jurisdiction.

Finally, we pause to note a consideration independent of the

legal issues presented in this petition. It appears from the

record before us that Arguello has been present in the United

States for fifteen years and has two United States citizen

children - an eleven-year-old son and a four-year-old daughter.

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Arguello represents that she has been steadily employed, and

nothing in the record indicates that she has any criminal

convictions. In light of these factors, the government may well

wish to consider whether continued prosecution of this case is

consistent with its new guidelines (announced since the tolling

period in this case was cancelled and the matter was argued

before this Court) on immigration enforcement priorities and the

exercise of prosecutorial discretion. See Memorandum from Jeh

Johnson, Secretary, Department of Homeland Security, to U.S.

Immigration and Customs Enforcement, et al. (Nov. 20, 2014)

("Subject: Policies for the Apprehension, Detention and Removal

of Undocumented Immigrants") available at

http://www.dhs.gov/sites/default/files/publications/14_1120_memo_

prosecutorial_discretion.pdf.

For the foregoing reasons, the petition for review is

DISMISSED. As we have completed our review, the stay of removal

that the Court previously granted in this petition is VACATED.

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk

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