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.**  **At a stated term of the United States Court of Appeals** 1 **for the Second Circuit, held at the Daniel Patrick Moynihan** 2 **United States Courthouse, 500 Pearl Street, in the City of** 3 **New York, on the 6 th** **day of December, two thousand eleven.** 4 5 **PRESENT:** 6 **DENNIS JACOBS,** 7 **Chief Judge**, 8 **PETER W. HALL,** 9 **GERARD E. LYNCH,** 10 **Circuit Judges .**  11

**_________________________________________** 12 13 **PAOLA ESTHER NORIEGA DE POMAR,** 14 Petitioner**,** 15 16 **v. 11-174-ag** 17 18 **ERIC H. HOLDER, JR., UNITED STATES** 19 **ATTORNEY GENERAL,** 20 Respondent**.** 21

**_______________________________________** 22 23 24 **FOR PETITIONER: Amanda E. Gray (Jules E. Coven,** 25 **Kerry W. Bretz, on the brief )**  26 **Bretz & Coven, LLP,** 27 **New York, NY.** 28 292 **FOR RESPONDENT: Tony West, Assistant Attorney** 1 **General; Blair O’Connor, Assistant** 2 **Director; Kathryn Moore, Trial** 3 **Attorney, United States Department** 4 **of Justice, Civil Division, Office** 5 **of Immigration Litigation,** 6 **Washington, D.C.** 7 8 UPON DUE CONSIDERATION of this petition for review of a 9 Board of Immigration Appeals (“BIA”) decision, it is hereby 10 ORDERED, ADJUDGED, AND DECREED that the petition for review 11 is DENIED. 12 Paola Esther Noriega de Pomar, a native and citizen of 13 Peru, seeks review of a December 20, 2010, order of the BIA 14 reversing the September 14, 2009, decision of Immigration 15 Judge (“IJ”) Javier E. Balasquide, and finding her removable 16 and ineligible for cancellation of removal. In re Paola 17 Esther Noriega de Pomar , No. A097 722 742 (B.I.A. Dec. 20, 18 2010), rev’gNo. A097 722 742 (Immig. Ct. N.Y. City, Sept. 19 14, 2009). We assume the parties’ familiarity with the 20 underlying facts, procedural history, and the issues 21 presented for review. Since the BIA reversed the decision 22 of the IJ, we review only the BIA’s decision. SeeYan Chen 23 v. Gonzales , 417 F.3d 268, 271 (2d Cir. 2005). 24 Generally we lack jurisdiction to review the agency’s 25 denial of an application for cancellation of removal under 8 263 U.S.C. § 1229b(b) that is based on an alien’s failure to 1 establish “exceptional and extremely unusual hardship.” See 2 8 U.S.C. § 1252(a)(2)(B)(i); see also Barco-Sandoval v. 3 Gonzales , 516 F.3d 35, 39 (2d Cir. 2008). However, pursuant 4 to the REAL ID Act, we retain jurisdiction to review non5 frivolous constitutional claims and questions of law, which 6 we review de novo . See 8 U.S.C. § 1252(a)(2)(D); Vargas7 Sarmiento v. U.S. Dep’t of Justice , 448 F.3d 159, 164-65 (2d 8 Cir. 2006); Sepulveda v. Gonzales , 407 F.3d 59, 62-63 (2d 9 Cir. 2005). 10 **[1]** Noriega de Pomar argues that the BIA’s discretionary 11 decision rests on fact-finding that is flawed by an error of 12 law because it overlooked and mischaracterized evidence that 13 Andrea, her U.S. citizen daughter, would suffer exceptional 14 and extremely unusual hardship as a result of Noriega de 15 Pomar’s removal. The BIA explicitly considered the likely 16 impact of Noriega de Pomar’s removal on Andrea’s academic 17 and athletic endeavors. Noriega de Pomar points out that 18 the BIA did not mention the number of years that Andrea was 19 in honors classes or the possibility that she could earn a 20 soccer scholarship, but it was not required to do so. See 21 Mendez v. Holder , 566 F.3d 316, 323 (2d Cir. 2009) (“[T]he 224 agency does not commit an ‘error of law’ every time an item 1 of evidence is not explicitly considered or is described 2 with imperfect accuracy . . . .”) 3 The BIA concluded that Noriega de Pomar’s daughter 4 would be “emotionally distracted” by her mother’s removal. 5 Noriega de Pomar argues that this mischaracterizes the 6 extent of the hardship. However, the record does not 7 contradict that characterization. SeeCarcamo v. U.S. Dep’t 8 of Justice , 498 F.3d 94, 98 (2d Cir. 2007). 9 **[2]** Noriega de Pomar further contends that the BIA 10 incorrectly applied the clearly erroneous standard of review 11 by substituting its judgment when reviewing the IJ’s 12 findings. This argument is unavailing. The BIA reviews 13 questions of law and discretion de novo , and under that 14 standard the BIA may make an independent determination of 15 whether the hardship to be suffered by the alien’s citizen 16 relative rises to the necessary level. 8 C.F.R. 17 § 1003.1(d)(3)(ii). The BIA thus did not err in rejecting 18 the IJ’s conclusion that the seriousness of Andrea’s 19 psychological state showed that she would experience 20 hardship that is exceptional and extremely unusual. 21 Noriega’s arguments to the contrary amount to “a quarrel 225 about . . . the exercise of discretion” which we lack 1 jurisdiction to review. Barco-Sandoval , 516 F.3d at 39 2 (internal quotation marks omitted). Similarly, the BIA did 3 not make an inappropriate factual finding as to whether 4 Noriega de Pomar would reunite with her family; rather, the 5 BIA correctly noted that she presented no evidence that a 6 reunion was impossible in South America. 7 **[3]** Finally, Noriega de Pomar asserts that the BIA 8 erroneously failed to provide its reasoning or consider the 9 hardship factors in the aggregate. However, the BIA 10 clearly discussed the detrimental effects Noriega de Pomar’s 11 removal would have on her daughter’s academic and athletic 12 endeavors, as well as Andrea’s loss of her mother’s 13 financial contribution and emotional support. The BIA 14 nevertheless found that, in the aggregate, this evidence did 15 not amount to the requisite hardship because Noriega de 16 Pomar testified that her daughter would remain in the United 17 States if she were removed, and thus Andrea would enjoy the 18 same educational and athletic opportunities in the United 19 States. The BIA’s legal finding is supported by precedent. 20

See Matter of Andazola-Rivas , 23 I. & N. Dec. 319, 322-23 21 (B.I.A. 2002) (holding that economic detriment to a 22 qualifying relative alone does not meet the hardship 236 standard); cf. Matter of Recinas , 23 I. & N. Dec. 467, 471 1 (B.I.A. 2002). Because the BIA explained its reasoning, and 2 the record does not reflect any failure of the BIA to assess 3 the hardship factors in the aggregate, the BIA did not err 4 as a matter of law. See id.at 472 (holding that the 5 analysis of hardship requires an assessment of the hardship 6 factors in their totality). 7 We have considered Petitioner’s remaining arguments and 8 we find them to be without merit. For the foregoing reasons, 9 the petition for review is DENIED. As we have completed our 10 review, the pending motion to dismiss this petition is 11
DISMISSED as moot. 12

FOR THE COURT: 13 Catherine O’Hagan Wolfe, Clerk 14 15 16