21-6256

Esquivel-Garcia v. Garland

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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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 for 

the Second Circuit, held at the Thurgood Marshall United States 

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

5th day of October, two thousand twenty-two.

PRESENT:

SUSAN L. CARNEY,

JOSEPH F. BIANCO,

ALISON J. NATHAN,

Circuit Judges.

_____________________________________

DANIEL ESQUIVEL-GARCIA,

Petitioner,

v. 21-6256

MERRICK B. GARLAND, UNITED STATES

ATTORNEY GENERAL,

Respondent.

_____________________________________

FOR PETITIONER: PAUL O’DWYER, Esq., Law Office of Paul 

O’Dwyer, P.C., New York, NY.

FOR RESPONDENT: JESSICA R. LESNAU, Trial Attorney, Office 

of Immigration Litigation (Lindsay 

Marshall, Julie M. Iversen, Senior 

Litigation Counsel, on the brief), for

Brian Boynton, Principal Deputy 

Assistant Attorney General, United 
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States Department of Justice, 

Washington, DC.

UPON DUE CONSIDERATION of this petition for review of a 

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

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

DISMISSED.

Petitioner Daniel Esquivel-Garcia, a native and citizen of

Mexico, seeks review of an April 12, 2021 decision of the BIA, 

affirming a December 7, 2018 decision of an Immigration Judge 

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

re Daniel Esquivel-Garcia, No. A206 031 064 (B.I.A. Apr. 12, 2021), 

aff’g No. A206 031 064 (Immig. Ct. N.Y. City Dec. 7, 2018). We 

assume the parties’ familiarity with the underlying facts and 

procedural history.

We have reviewed the IJ’s decision as supplemented by the 

BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). 

A noncitizen like Esquivel-Garcia, who is not a permanent resident,

may have his removal cancelled if, as relevant here, he

“establishes that removal would result in exceptional and 

extremely unusual hardship to [his] 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)(D). For a 
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petitioner to be eligible for cancellation, the hardship to the

qualifying relative “must be substantially beyond the ordinary 

hardship that would be expected when a close family member leaves 

this country.” In re Monreal-Aguinaga, 23 I. & N. Dec. 56, 62 

(B.I.A. 2001) (internal quotation marks omitted). Our 

jurisdiction to review the agency’s denial of cancellation of 

removal based on an applicant’s failure to satisfy the hardship 

requirement is limited to colorable constitutional claims and 

questions of law. 8 U.S.C. § 1252(a)(2)(B), (D); Barco-Sandoval 

v. Gonzales, 516 F.3d 35, 39-41 (2d Cir. 2008). 

Esquivel-Garcia argues that the agency misconstrued or 

ignored evidence, applied a heightened standard when considering 

evidence of criminal conditions, and failed to consider hardship 

evidence cumulatively. These arguments are not colorable and for 

that reason we are not vested with jurisdiction over his petition.

First, the agency did not “totally overlook[]” or “seriously 

mischaracterize[]” important facts. Mendez v. Holder, 566 F.3d 

316, 323 (2d Cir. 2009). Contrary to Esquivel-Garcia’s 

contention, the agency did not find that his extended family will 

financially support him in Mexico; rather, the agency determined

that they might ease his family’s transition. See In re AndazolaRivas, 23 I. & N. Dec. 319, 323 (B.I.A. 2002) (recognizing that 
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adjustment to removal is more difficult without family members in 

the country of removal). That finding was consistent with 

Esquivel-Garcia’s testimony that he and his family would initially 

stay at his mother’s house. And, contrary to his suggestion on 

appeal, he did not raise a claim before the agency that his 

children’s education would suffer because they will live in an 

indigenous area. For that reason, the agency was not obligated 

to give explicit consideration to evidence regarding educational 

opportunities in such areas. See 8 U.S.C. § 1229a(c)(4)(A)(i) 

(applicant bears burden of proof); Jian Hui Shao v. Mukasey, 546 

F.3d 138, 169 (2d Cir. 2008) (“[W]e do not demand that the BIA 

expressly parse or refute on the record each individual argument 

or piece of evidence offered by the petitioner.” (internal 

quotation marks omitted)). 

The IJ did misquote Esquivel-Garcia as stating that violent 

crimes did not typically occur in Zitácuaro. In fact, EsquivelGarcia testified that while violent crimes did not typically occur 

in his hometown of Crescencio Morales, they did frequently occur 

in Zitácuaro. However, Esquivel-Garcia conceded the argument in 

his reply brief. Even if he had not, the IJ’s error does not rise

to the level of serious mischaracterization. The IJ concluded, 
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consistent with the evidence, that violent crimes were infrequent 

in Esquivel-Garcia’s hometown.

Second, Esquivel-Garcia does not identify any error of law in 

the agency’s decision declining to accept his late-filed evidence

concerning a recent violent incident that took place near his 

hometown. See Dedji v. Mukasey, 525 F.3d 187, 191 (2d Cir. 2008) 

(“[A]n IJ has broad discretion to set and extend filing deadlines

pursuant to 8 C.F.R. § 1003.31.”); see also Xiao Ji Chen v. U.S. 

Dep’t of Just., 471 F.3d 315, 329 (2d Cir. 2006)(providing that a 

question of law may arise “where a discretionary decision is argued 

to be an abuse of discretion because it was made without rational 

justification or based on a legally erroneous standard”). He does 

not make out a constitutional claim, for example, that the 

evidentiary decision violated his due process rights, because the 

IJ permitted him to testify about the incident discussed in that 

evidence and considered it. See Garcia-Villeda v. Mukasey, 531 

F.3d 141, 149 (2d Cir. 2008) (“Parties claiming denial of due 

process in immigration cases must, in order to prevail, allege 

some cognizable prejudice fairly attributable to the challenged 

process.” (internal quotation marks omitted)); cf. Martinez Roman 

v. Garland, 2022 WL 4241573, at *7-*10 (2d Cir. Sept. 15, 2022)
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(concluding that the IJ’s denial of a continuance to hear live 

testimony from a noncitizen’s children was an abuse of discretion). 

Further, the agency did not apply an erroneously heightened 

legal standard by requiring him to show that his children would be 

singled out for violent crime in Mexico. Rather, it appropriately 

acknowledged crime conditions, noted that Esquivel-Garcia’s 

extended family in Mexico generally had not suffered from crime, 

and observed the lack of evidence as to how his young children 

specifically would suffer hardship from general crime conditions. 

See In re Andazola-Rivas, 23 I. & N. Dec. at 323 (“[T]he relative 

level of hardship a person might suffer . . . must necessarily be 

assessed, at least in part, by comparing it to the hardship others 

might face.”). 

Finally, contrary to Esquivel-Garcia’s assertion, the IJ 

explicitly considered the claimed hardships cumulatively. See In 

re Gonzalez Recinas, 23 I. & N. Dec. 467, 472 (B.I.A. 2002) (“Part 

of that analysis requires the assessment of hardship factors in 

their totality, often termed a ‘cumulative’ analysis.”). We lack

jurisdiction to review the agency’s weighing of the hardship 

evidence or balancing of factors. See Barco-Sandoval, 516 F.3d 

at 42; Argueta v. Holder, 617 F.3d 109, 113 (2d Cir. 2010).
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For the foregoing reasons, the petition for review is 

DISMISSED.

FOR THE COURT: 

Catherine O’Hagan Wolfe,

Clerk of Court