12-2183

Paz v. Holder

BIA

Verrillo, IJ

A094 028 449

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 28th 4 day of March, two thousand thirteen.

5

6 PRESENT:

7 DENNIS JACOBS,

8 Chief Judge,

9 JOSÉ A. CABRANES, 

10 RICHARD C. WESLEY,

11 Circuit Judges.

12 _____________________________________

13

14 MARLOS PAZ,

15

16 Petitioner, 

17

18 v. 12-2183

19

20 ERIC H. HOLDER, JR., UNITED STATES

21 ATTORNEY GENERAL,

22

23 Respondent.

24 _____________________________________

25

26 FOR PETITIONER: Elyssa N. Williams, Formica

27 Williams, P.C., New Haven, CT.

28

29 FOR RESPONDENT: Stuart F. Delery, Principal Deputy

30 Assistant Attorney General; Holly M.
1 Smith, Senior Litigation Counsel;

2 Edward C. Durant, Attorney, Office

3 of Immigration Litigation, United

4 States Department of Justice,

5 Washington, D.C.

6

7 UPON DUE CONSIDERATION of this petition for review of a

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

9 ORDERED, ADJUDGED, AND DECREED that the petition for review

10 is DENIED.

11 Marlos Paz, a native and citizen of Nicaragua, seeks

12 review of an April 30, 2012 order of the BIA denying his

13 request for a remand and affirming the April 6, 2010

14 decision of Immigration Judge (“IJ”) Philip Verrillo,

15 finding him removable and ineligible for cancellation of

16 removal. In re Marlos Paz, No. A094 028 449 (B.I.A. Apr.

17 30, 2012), aff’g No. A094 028 449 (Immig. Ct. Hartford Apr.

18 6, 2010). We assume the parties’ familiarity with the

19 underlying facts and procedural history in this case. 

20 Under the circumstances of this case, we have reviewed

21 the IJ’s decision as supplemented and modified by the BIA. 

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

23 522 (2d Cir. 2005); Yan Chen v. Gonzales, 417 F.3d 268, 271

24 (2d Cir. 2005). To demonstrate eligibility for cancellation

25 of removal, an alien who is not a lawful permanent resident

26 must establish, in relevant part, that his “removal would

2
1 result in exceptional and extremely unusual hardship to

2 [his] spouse, parent, or child, who is a citizen of the

3 United States or an alien lawfully admitted for permanent

4 residence.” 8 U.S.C. § 1229b(b)(1)(D). The agency

5 determined that Paz’s removal would have no such impact. 

6 Paz has shown no error in that determination. 

7 Paz argues that the agency mischaracterized the

8 evidence by disregarding or minimizing the severity of his

9 elder son’s medical condition. Our jurisdiction to review

10 this discretionary determination is limited, see 8 U.S.C.

11 § 1252(a)(2)(B), and although Paz’s argument can be

12 construed as a question of law, see 8 U.S.C.

13 § 1252(a)(2)(D); Mendez v. Holder, 566 F.3d 316, 322-23 (2d

14 Cir. 2009) (per curiam); Ilyas Khan v. Gonzales, 495 F.3d

15 31, 35 (2d Cir. 2007), no evidence as to the severity of the

16 condition was presented to the agency.

17 Paz submitted to the IJ a sheet with a list of his

18 sons’ diagnoses, without any information about his elder

19 son’s diagnosis, its seriousness, or what treatment or

20 medications were prescribed. Paz offered no context for the

21 medical records documenting his son’s appointments between

22 1998 and 2008, and his counsel elicited only the most basic

3
1 testimony from Paz, who could not give medical testimony in

2 any event. It was Paz’s burden to show that his removal

3 would cause his child’s exceptional and extremely unusual

4 hardship. 8 U.S.C. § 1229a(c)(4)(A)(i)-(ii). 

5 Paz also argues that the IJ and the BIA failed to

6 interpret his facts in light of In re Gonzalez Recinas, 23

7 I&N Dec. 467 (BIA 2002), and thus used the wrong legal

8 standard for exceptional and extremely unusual hardship. 

9 This argument raises a question of law, but it is without

10 merit. See Ilyas Khan, 495 F.3d at 35. In Gonzalez

11 Recinas, the BIA considered such factors as the health of

12 the qualifying family members, ability of the alien to

13 obtain employment in the home country, ability to achieve

14 immigration status another way, and family and financial

15 assets to ease a transition. Gonzalez Recinas, 23 I&N Dec.

16 at 469-71. In this case, both the IJ and the BIA cited

17 Gonzalez Recinas in their decisions, and considered the same

18 factors. The correct legal standard was applied. 

19 For the foregoing reasons, the petition for review is

20 DENIED. As we have completed our review, any stay of removal

21 that the Court previously granted in this petition is VACATED,

22 and any pending motion for a stay of removal in this petition

4
1 is DISMISSED as moot. Any pending request for oral argument in

2 this petition is DENIED in accordance with Federal Rule of

3 Appellate Procedure 34(a)(2), and Second Circuit Local Rule

4 34.1(b).

5 FOR THE COURT: 

6 Catherine O’Hagan Wolfe, Clerk

7

8

5