15-2717 Orellana Merchan v. Sessions BIA A088 445 134 

### 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 TO 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**  1 **the Second Circuit, held at the Thurgood Marshall United States** 2 **Courthouse, 40 Foley Square, in the City of New York, on the** 3 **23 rd**  **day of February, two thousand seventeen.** 4 5 **PRESENT:** 6 **DENNIS JACOBS,** 7 **ROSEMARY S. POOLER,** 8 **CHRISTOPHER F. DRONEY,** 9 Circuit Judges. 10

**_____________________________________** 11 12 **JAIME FERNANDO ORELLANA MERCHAN,** 13 Petitioner **,** 14 15 **v. 15-2717** 16 **NAC** 17 **JEFF SESSIONS, UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent **.** 20

**_____________________________________** 21 22 **FOR PETITIONER:** Gregory C. Osakwe, Hartford, CT. 23 24 **FOR RESPONDENT:** Benjamin C. Mizer, Principal Deputy 25 Assistant Attorney General; Anthony 26 P. Nicastro, Assistant Director; 27 Dana M. Camilleri, Trial Attorney, 28 Office of Immigration Litigation, 29 United States Department of Justice, 30 Washington, DC. 312 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 is 3 DISMISSED for lack of jurisdiction. 4 Petitioner Jaime Fernando Or ellana Merchan, a native and 5 citizen of Ecuador, seeks review of an August 7, 2015, decision 6 of the BIA denying his motion to reconsider a May 2015 BIA 7 decision, which affirmed a decision of an Immigration Judge 8 (“IJ”) denying Orellana’s application for cancellation of 9 removal. In re Jaime Fernando Orellana Merchan, No. A088 445 10 134 (B.I.A. Aug. 7, 2015). We assume the parties’ familiarity 11 with the underlying facts and procedural history in this case. 12 We review denials of motions to reconsider for abuse of 13 discretion. Zhao Quan Chen v. Gonzales , 492 F.3d 153, 154 (2d 14 Cir. 2007). An alien seeking reconsideration must “specify the 15 errors of law or fact in the previous order and [support the 16 motion with] pertinent authority.” 8 U.S.C. 17 § 1229a(c)(6)(C); 8 C.F.R. § 1003.2(b)(1); see also Jian Hui 18 Shao v. Mukasey , 546 F.3d 138, 173 (2d Cir. 2008). 19 Orellana challenges the agency’s underlying determination 20 that he failed to establish that his removal would result in 21 exceptional and extremely unusual hardship to his U.S.-citizen 22 children. We lack jurisdiction over that challenge because the 233 petition for review was not timely filed from the BIA’s May 2015 1 decision. See Stone v. INS , 514 U.S. 386, 405 (1995) (requiring 2 separate timely petitions for review of the final removal order 3 and the denial of a motion to reconsider or reopen); Kaur v. 4

BIA , 413 F.3d 232, 233 (2d Cir. 2005) (same); see also 8 U.S.C. 5 § 1252(b)(1)(“The petition for review must be filed not later 6 than 30 days after the date of the final order of removal.”); 7 Luna v. Holder , 637 F.3d 85, 92 (2d Cir. 2011). While 8 Orellana’s brief specifies that he is “petition[ing] for review 9 of the BIA’s decision denying his motion to reconsider,” 10 Petitioner’s Br. (“PB”) at 18, it makes no arguments concerning 11 the denial of reconsideration and challenges only the agency’s 12 underlying denial of cancellation of removal. 13 Even construing Orellana’s challenges as pertaining to the 14 BIA’s denial of reconsideration, we still lack jurisdiction 15 over the petition. Notwithstanding Orellana’s assertions to 16 the contrary, it is well settled that we generally lack 17 jurisdiction to review the agency’s determination that an 18 applicant has failed to establish “exceptional and extremely 19 unusual hardship” because that is a discretionary determination 20 reserved for the agency. See 8 U.S.C. § 1252(a)(2)(B); 21 Barco-Sandoval v. Gonzales , 516 F.3d 35, 39 (2d Cir. 2008). We 22 nevertheless have jurisdiction to review constitutional claims 234 and questions of law, 8 U.S.C. § 1252(a)(2)(D), which may 1 “‘arise for example in fact-finding which is flawed by an error 2 of law’ or ‘where a discretionary decision is argued to be an 3 abuse of discretion because it was made without rational 4 justification or based on a legally erroneous standard,’” 5 Barco-Sandoval , 516 F.3d at 39 (quoting Xiao Ji Chen v. U.S. 6 Dep’t of Justice , 471 F.3d 315, 329 (2d Cir. 2006)). To 7 ascertain whether a petitioner raises constitutional 8 challenges or questions of law over which we have jurisdiction, 9 we “study the argument[] asserted [and] . . . determine, 10 regardless of the rhetoric employed in the petition, whether 11 it merely quarrels over the correctness of the factual findings 12 or justification for the discretionary choices, in which case 13 the court would lack jurisdiction.” Xiao Ji Chen , 471 F.3d at 14 329. 15 Orellana’s assertion that the IJ “downplay[ed]” the 16 seriousness of his daughter’s foot co ndition, PB at 25, fails 17 to raise a constitutional claim or a question of law. Compare 18 Xiao Ji Chen , 471 F.3d at 329-30 (finding no constitutional 19 claim or question of law raised), with Mendez v. Holder , 566 20 F.3d 316, 323 (2d Cir. 2009) (finding error of law in a hardship 21 determination where “facts important to the subtle 22 determination of ‘exceptional and extremely unusual hardship’ 235 have been totally overlooked and others have been seriously 1 mischaracterized ” (emphasis added)). In any event, neither 2 the BIA nor the IJ “totally overlooked” or “seriously 3 mischaracterized” Orellana’s daughter’s foot condition; both 4 the IJ and the BIA considered it in the context of the hardship 5 determination, and Orellana did not submit any medical 6 documentation to support a diagnosis or the condition’s 7 severity. See Mendez , 566 F.3d at 323. 8 Lastly, as the Government argues, Orellana’s remaining 9 arguments are unexhausted. See Lin Zhong v. U.S. Dep’t of 10 Justice , 480 F.3d 104, 123 (2d Cir. 2007) (providing judicially11 imposed issue exhaustion “will usually mean that issues not 12 raised to the BIA will not be examined by the reviewing court”). 13 Orellana did not previously raise his arguments that he suffered 14 a violation of the Vienna Convention and that his attorney 15 before the agency was ineffective. Orellana’s ineffective 16 assistance claim is also procedurally deficient because he has 17 yet to comply with the Lozada requirements. See Jian Yun Zheng 18 v. U.S. Dep’t of Justice , 409 F.3d 43, 46 (2d Cir. 2005) 19 (requiring substantial compliance with Lozada to preserve an 20 ineffective assistance of counsel claim); see also In re Lozada , 21 19 I. & N. Dec. 637 (B.I.A. 1988). 226 For the foregoing reasons, the petition for review is 1 DISMISSED for lack of jurisdiction. As we have completed our 2 review, any pending motion for a stay of removal in this petition 3 is DISMISSED as moot 4
FOR THE COURT: 5 Catherine O’Hagan Wolfe, Clerk 6