11-174-ag

Noriega de Pomar v. Holder

BIA

Balasquide, IJ

A097 722 742

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 Daniel Patrick Moynihan

3 United States Courthouse, 500 Pearl Street, in the City of

New York, on the 6th 4 day of December, two thousand eleven.

5

6 PRESENT:

7 DENNIS JACOBS,

8 Chief Judge,

9 PETER W. HALL, 

10 GERARD E. LYNCH,

11 Circuit Judges.

12 _________________________________________

13

14 PAOLA ESTHER NORIEGA DE POMAR,

15 Petitioner, 

16

17 v. 11-174-ag

18

19 ERIC H. HOLDER, JR., UNITED STATES

20 ATTORNEY GENERAL,

21 Respondent.

22 _______________________________________

23

24

25 FOR PETITIONER: Amanda E. Gray (Jules E. Coven,

26 Kerry W. Bretz, on the brief)

27 Bretz & Coven, LLP, 

28 New York, NY.

29
2

1 FOR RESPONDENT: Tony West, Assistant Attorney

2 General; Blair O’Connor, Assistant

3 Director; Kathryn Moore, Trial

4 Attorney, United States Department

5 of Justice, Civil Division, Office

6 of Immigration Litigation,

7 Washington, D.C.

8

9 UPON DUE CONSIDERATION of this petition for review of a

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

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

12 is DENIED.

13 Paola Esther Noriega de Pomar, a native and citizen of

14 Peru, seeks review of a December 20, 2010, order of the BIA

15 reversing the September 14, 2009, decision of Immigration

16 Judge (“IJ”) Javier E. Balasquide, and finding her removable

17 and ineligible for cancellation of removal. In re Paola

18 Esther Noriega de Pomar, No. A097 722 742 (B.I.A. Dec. 20,

19 2010), rev’g No. A097 722 742 (Immig. Ct. N.Y. City, Sept.

20 14, 2009). We assume the parties’ familiarity with the

21 underlying facts, procedural history, and the issues

22 presented for review. Since the BIA reversed the decision

23 of the IJ, we review only the BIA’s decision. See Yan Chen

24 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).

25 Generally we lack jurisdiction to review the agency’s

26 denial of an application for cancellation of removal under 8
3

1 U.S.C. § 1229b(b) that is based on an alien’s failure to

2 establish “exceptional and extremely unusual hardship.” See

3 8 U.S.C. § 1252(a)(2)(B)(i); see also Barco-Sandoval v.

4 Gonzales, 516 F.3d 35, 39 (2d Cir. 2008). However, pursuant

5 to the REAL ID Act, we retain jurisdiction to review non6 frivolous constitutional claims and questions of law, which

7 we review de novo. See 8 U.S.C. § 1252(a)(2)(D); Vargas8 Sarmiento v. U.S. Dep’t of Justice, 448 F.3d 159, 164-65 (2d

9 Cir. 2006); Sepulveda v. Gonzales, 407 F.3d 59, 62-63 (2d

10 Cir. 2005). 

11 [1] Noriega de Pomar argues that the BIA’s discretionary

12 decision rests on fact-finding that is flawed by an error of

13 law because it overlooked and mischaracterized evidence that

14 Andrea, her U.S. citizen daughter, would suffer exceptional

15 and extremely unusual hardship as a result of Noriega de

16 Pomar’s removal. The BIA explicitly considered the likely

17 impact of Noriega de Pomar’s removal on Andrea’s academic

18 and athletic endeavors. Noriega de Pomar points out that

19 the BIA did not mention the number of years that Andrea was

20 in honors classes or the possibility that she could earn a

21 soccer scholarship, but it was not required to do so. See

22 Mendez v. Holder, 566 F.3d 316, 323 (2d Cir. 2009) (“[T]he
4

1 agency does not commit an ‘error of law’ every time an item

2 of evidence is not explicitly considered or is described

3 with imperfect accuracy . . . .”) 

4 The BIA concluded that Noriega de Pomar’s daughter

5 would be “emotionally distracted” by her mother’s removal. 

6 Noriega de Pomar argues that this mischaracterizes the

7 extent of the hardship. However, the record does not

8 contradict that characterization. See Carcamo v. U.S. Dep’t

9 of Justice, 498 F.3d 94, 98 (2d Cir. 2007). 

10 [2] Noriega de Pomar further contends that the BIA

11 incorrectly applied the clearly erroneous standard of review

12 by substituting its judgment when reviewing the IJ’s

13 findings. This argument is unavailing. The BIA reviews

14 questions of law and discretion de novo, and under that

15 standard the BIA may make an independent determination of

16 whether the hardship to be suffered by the alien’s citizen

17 relative rises to the necessary level. 8 C.F.R.

18 § 1003.1(d)(3)(ii). The BIA thus did not err in rejecting

19 the IJ’s conclusion that the seriousness of Andrea’s

20 psychological state showed that she would experience

21 hardship that is exceptional and extremely unusual. 

22 Noriega’s arguments to the contrary amount to “a quarrel
5

1 about . . . the exercise of discretion” which we lack

2 jurisdiction to review. Barco-Sandoval, 516 F.3d at 39

3 (internal quotation marks omitted). Similarly, the BIA did

4 not make an inappropriate factual finding as to whether

5 Noriega de Pomar would reunite with her family; rather, the

6 BIA correctly noted that she presented no evidence that a

7 reunion was impossible in South America. 

8 [3] Finally, Noriega de Pomar asserts that the BIA

9 erroneously failed to provide its reasoning or consider the

10 hardship factors in the aggregate. However, the BIA 

11 clearly discussed the detrimental effects Noriega de Pomar’s

12 removal would have on her daughter’s academic and athletic

13 endeavors, as well as Andrea’s loss of her mother’s

14 financial contribution and emotional support. The BIA

15 nevertheless found that, in the aggregate, this evidence did

16 not amount to the requisite hardship because Noriega de

17 Pomar testified that her daughter would remain in the United

18 States if she were removed, and thus Andrea would enjoy the

19 same educational and athletic opportunities in the United

20 States. The BIA’s legal finding is supported by precedent. 

21 See Matter of Andazola-Rivas, 23 I. & N. Dec. 319, 322-23

22 (B.I.A. 2002) (holding that economic detriment to a

23 qualifying relative alone does not meet the hardship
6

1 standard); cf. Matter of Recinas, 23 I. & N. Dec. 467, 471

2 (B.I.A. 2002). Because the BIA explained its reasoning, and

3 the record does not reflect any failure of the BIA to assess

4 the hardship factors in the aggregate, the BIA did not err

5 as a matter of law. See id. at 472 (holding that the

6 analysis of hardship requires an assessment of the hardship

7 factors in their totality). 

8 We have considered Petitioner’s remaining arguments and

9 we find them to be without merit. For the foregoing reasons,

10 the petition for review is DENIED. As we have completed our

11 review, the pending motion to dismiss this petition is

12 DISMISSED as moot.

13 FOR THE COURT: 

14 Catherine O’Hagan Wolfe, Clerk

15

16