13

- 3572

Cajamarca Romero v. Holder
BIA Weisel , IJ A 076 579 088 

## 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 O N ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at 1 the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New 2 York, on the 13 th da y of February , two thousa nd fiftee n. 3
4 PRESENT: 5 AMALYA L. KEARSE , 6 DEBRA ANN LIVINGSTON , 7 SUSAN L. CARNEY , 8 Circuit Judges. 9

_____________________________________ _ 10
11 MIGUEL CAJAMARCA ROMERO , AKA 12 MIGUEL KAJAMARCA ROMERO, AKA 13 MIGUEL CAJAMARCA, AKA MIGUEL O. 14 ROMERO, AKA MIGUEL OSWALDO 15 CAJAMARCA, AKA MIGUEL ROMERO , 16 Petitioner , 17 18

v. 13

- 3572 19 20
21 ERIC H. HOLDER, JR., UNITED STATES 22 ATTORNEY GENERAL , 23 Respondent

. 24

_____________________________________ _ 25 26 FOR PETITIONER : Mary Foden, Law Office of Maria Luisa d e Castro 27 Foden, Hartford, CT

. 28 29 FOR RESPONDENT: Kerry A. Monaco, Trial Attorney, Office of 30 Immigration Litigation ; Linda S. Wernery, Assistant 312 Director , Office of Immigration Litigation; Stuart F. 1 Delery, Assistant Attorney General , Civil Division ; 2 United States Department of Justice, Washington, D.C. 3
4 UPON DUE CONSIDERATION of this petition for review of a Board of Immigration 5

Appeals decision, it is hereby ORDERED, ADJUDGED, AND DECREED that the petitio n for 6

review is DENIED

. 7

Miguel Cajamarca Romero, a native and citizen of Ecuador, seeks review of an August 26, 8

2013, decision of the Board of Immigration Appeals (“BIA”) dismissing his appeal of an 9

immigration judge‟s (“IJ”) order of removal and denying his motion t o remand. In re Miguel 10

Cajamarca Romero , No. A 076 579 088 (B.I.A. Aug. 26, 2013), aff’g No. A076 579 088 (Immig. 11

Ct. N.Y. City Oct. 7, 2011). We assume the parties‟ familiarity with the underlying facts and 12

procedural history in this case. 13

In this Cour t, Cajamarca challenges the BIA‟s denial of his motion to remand based on new 14

evidence that he had remarried. “The BIA has „broad discretion‟ to deny a motion to remand 15

grounded on new evidence.” L i Yong Cao v. U.S. Dep’t of Justice , 421 F.3d 149, 156 (2 d Cir. 16

2005). “P ermissible reasons to d e n y such a motion include . . . the movant‟s failure to make a 17

prima facie case of eligibility ” for the relief sought. I d. The BIA concluded that Cajamarca 18

failed to demonstrate his prima facie eligibility for cancellation of removal. 19

That decision was no t an abuse of discretion. Cancellation of removal requires

, inter alia

, 20

that the applicant have a „qualifying relative‟ who is a citizen or lawful perma nent resident. See 21

8 U.S.C. § 1229b(b)(1). In his motion to remand, Cajamarca notified the BIA that he had married 22

Maria Bonilla, who intended to seek cancellation of removal. However, Bonilla could not serve 23

as Cajamarca ‟s qualifying relative until she was granted cancellation of removal and became a 24

lawful permanent resident. Cf. Matter of Bautista , 23 I & N Dec. 893, 894 (B.I.A. 2006) 253

(explaining that changed circumstances, including “marriage to a lawful permanent resident or 1

citizen,” may warrant r eopening removal proceedings ). Cajamarca now argues that Bonilla‟s son 2

(now his stepson) may serve as his qualifying relative for purposes of cancellation of removal. 3

But Cajamarca did not present any evidence to the BIA that he had a stepson who could s erve as 4

his qualifying relative , or any evidence that his stepson would face hardship if he were removed 5

from the United States

. See 8 U.S.C. § 1229b(b)(1)(D) (requiring a showing that “the alien‟s 6

spouse, parent, or child” would be subject to “exceptiona l and extremely unusual hardship” in 7

order for such an alien to be eligible for cancellation of removal under 8 U.S.C. § 1229b(b)(1)). 8

Cajamarca now argues that the BIA should have considered the potential for his stepson to serve as 9

his qualifying relati ve by examining the records from Bonilla‟s removal proceeding s . But it was 10

Cajamarca ‟s burden

— not the BIA‟s

— to make out a prima facie case. 11

Cajamarca ‟s additional challenges to the BIA‟s decision fail. He argues that the BIA 12

engaged in impermissible factfinding when it stated , in a footnote to its August 2013 decision

, that 13

“[i]nternal agency records show that the removal proceedings for the respondent‟s current wife 14

have been administratively closed.” A.R. 3. Yet Cajamarca acknowledges that the BIA i s 15

permitted to “tak[e] administrative notice of

. . . the contents of official documents.” Petitioner‟s 16

Br. at 15 (quoting 8 C.F.R. § 1003.1(d)(3)(iv)). The record at issue here

— reflecting the status of 17

Bonilla‟s removal proceedings

— may well constitute an “official document” because it i s akin to a 18

docket sheet or court record. See, e.g.

, Yi Long Yang v. Gonzales , 478 F.3d 133, 143 (2d Cir. 19

2007) ( “[T]he BIA was entitled to t ake administrative notice of” a New York State Appellate 20

Division decision “as contents of an official document.”) (internal quotation marks and brackets 21

omitted). We need not decide the question, however, because the BIA‟s purported factfinding 22

was in any event not necessary to support its conclusion that Cajamarca failed to make out a prima 234

facie case , given that it was undisputed that Bonilla ‟s application for cancellation of removal had 1

not been granted

. See Cao He Lin v. U.S. Dep’t of Justice , 428 F.3d 391, 401 (2d Cir. 2005) 2

(“[O]ur responsibility to examine the IJ‟s reasonin g and her analysis does not require that we 3

remand based on an error when the IJ also rests her determination on an acceptable independent 4

basis.”); Ping Wang v. Mukasey , 269 F. App‟x 43, 46 (2d Cir. 2008) (summary order) (denying a 5

petition for review des pite concluding that the BIA had engaged in impermissible factfinding 6

because “ there is no realistic possibility that, absent this error, the agency would reach a 7

different conclusion on remand ”). 8

Cajamarca also argues that the administrative closure of Bonilla‟s case did not foreclose 9

relief because, at any time, Bonilla could have had her case re

- calendared, and then the IJ could 10

have permit ted Cajamarca ‟s case to “ride” along with it. Consequently, argues Cajamarca

, the 11

B IA was wrong to infer that “there is no certainty” that Bonilla‟s application would be granted. 12

But f

or Cajamarca to be prima facie eligible for cancellation of his removal proceedings based on 13

Bonilla ‟s status as a qualifying relative, Bonilla‟s ap plication needed to be more than a “certainty”; 14

it needed to have be en granted. Cajamarca‟s argument to the contrary is without merit. 15

CONCLUSION 16

We have considered all of Cajamarca‟s arguments and find them to be without merit. 17

Accordingly, we DENY his petition for review of the BIA‟s decision

. 18

19
F OR THE COURT: 20 Catherine O = Ha gan Wolfe, Cle rk 21