14-2635-ag 

Otavalo Montoya v. Lynch

BIA 

Straus, IJ 

A055 462 268

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 the 

Second Circuit, held at the Thurgood Marshall United States 

Courthouse, 40 Foley Square, in the City of New York, on the 21st day 

of July, two thousand fifteen. 

PRESENT: 

ROSEMARY S. POOLER,

RAYMOND J. LOHIER, JR., 

CHRISTOPHER F. DRONEY,

Circuit Judges. 

_____________________________________ 

CARMEN GERMANIA OTAVALO MONTOYA, 

Petitioner, 

v. 14-2635-ag 

LORETTA E. LYNCH, UNITED STATES 

ATTORNEY GENERAL, 

Respondent.1

_____________________________________ 

FOR PETITIONER: Kevin E. Dehghani, New Haven, CT. 

 

1 Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney 

General Loretta E. Lynch is automatically substituted for former 

Attorney General Eric H. Holder, Jr. 
2

FOR RESPONDENT: Robbin K. Blaya, Trial Attorney, Office of 

 Immigration Litigation (Joyce R. 

Branda, Acting Assistant Attorney 

 General, Civil Division; Mary Jane 

Candaux, Assistant Director, Office of 

 Immigration Litigation, on the brief), 

 United States Department of Justice, 

Washington, D.C. 

UPON DUE CONSIDERATION of this petition for review of a Board 

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

ADJUDGED, AND DECREED that the petition for review is DENIED in part 

and DISMISSED in part. 

 Petitioner Carmen Germania Otavalo Montoya, a native and citizen 

of Ecuador, seeks review of a June 27, 2014 decision of the BIA 

affirming the December 17, 2012 decision of an Immigration Judge 

(“IJ”) denying her applications for a waiver and voluntary departure. 

In re Carmen Germania Otavalo Montoya, No. A055 462 268 (B.I.A. June 

27, 2014), aff’g No. A055 462 268 (Immig. Ct. Hartford Conn. Dec. 

17, 2012). Under the circumstances of this case, we review the IJ’s 

decision as modified by the BIA. See Xue Hong Yang v. U.S. Dep’t of 

Justice, 426 F.3d 520, 522 (2d Cir. 2005). We assume the parties’ 

familiarity with the underlying facts and procedural history in this 

case. 

An alien granted conditional permanent residence based on her 

marriage to a U.S. citizen must jointly petition with her spouse to 
3

remove the conditional basis of her residence. Id. § 1186a(c)(1). 

The agency may waive the joint petitioning requirement if, inter alia, 

the alien demonstrates that “extreme hardship would result” if she 

were removed. 8 U.S.C. § 1186a(c)(4)(A). We have not yet decided 

if the determination of whether an alien is eligible for a hardship 

waiver under Section 1186(c)(4) is committed to the discretion of 

the agency. See Contreras-Salinas v. Holder, 585 F.3d 710, 713 (2d 

Cir. 2009). The majority of our sibling circuits to have considered 

this issue have held that the agency’s determination of a petitioner’s 

eligibility under Section 1186(c)(4) is a non-discretionary decision 

and therefore subject to judicial review. See Johns v. Holder, 678 

F.3d 404, 407 (6th Cir. 2012); Singh v. Holder, 591 F.3d 1190, 1193—97 

(9th Cir. 2010); Nguyen v. Mukasey, 522 F.3d 853, 854—55 (8th Cir. 

2008); Cho v. Gonzales, 404 F.3d 96, 99—102 (1st Cir. 2005). But see

Assaad v. Ashcroft, 378 F.3d 471, 475 (5th Cir. 2004) (holding 

eligibility determination cannot be reviewed); Urena–Tavarez v. 

Ashcroft, 367 F.3d 154, 159–60 (3d Cir. 2004) (same). We reserve this 

question for another day, as here the agency plainly did not err in 

determining that Otavalo Montoya failed to demonstrate extreme 

hardship. See Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 

338 n.2 (“Our assumption of jurisdiction to consider first the merits 

is not barred where the jurisdictional constraints are imposed by 
4

statute, not the Constitution, and where the jurisdictional issues 

are complex and the substance of the claim is, as here, plainly without 

merit.”). As the agency found, Otavalo Montoya’s evidence indicated 

that the “hardship involved is not significantly greater than that 

which would be experienced by any other alien who is removed to her 

home country.” App’x at 3; see 8 C.F.R. § 216.5(e)(1). 

 We lack jurisdiction to review the agency’s denial of voluntary 

departure. 8 U.S.C. § 1229c(f). However, we are not precluded from 

reviewing constitutional claims or questions of law. Carcamo v. U.S. 

Dep’t of Justice, 498 F.3d 94, 97 (2d Cir. 2007). Otavalo Montoya 

contends that the IJ erred by taking into account a prior finding 

that her marriage was not bona fide. But this argument “merely 

quarrels over the . . . justification for the [IJ’s] discretionary 

choices” and presents neither a constitutional claim nor a legal 

question. Id. at 98 (internal quotation marks omitted). In any 

event, the agency did not rely on this finding in its affirmance. 

Rather, the agency agreed with the IJ that even if Otavalo Montoya 

met the statutory requirements for voluntary departure, she did not 

warrant relief as an exercise of discretion because she declined to 

answer questions posed by the government about her marriage — an issue 

the IJ found relevant to the exercise of discretion. Otavalo Montoya 

also argues that in relying on her refusal to so testify the IJ and 
5

the agency committed legal error. However, Otavalo Montoya bore the 

burden to show that she warranted voluntary departure, see 8 C.F.R. 

§ 1240.8(d); the IJ reasonably concluded that she failed to meet her 

burden when she declined to offer such testimony in support of her 

application. Accordingly, Otavalo Montoya has not raised a colorable 

claim that the agency erred in denying her application for voluntary 

departure as a matter of discretion. See 8 U.S.C. § 1229c(f); 

Barco-Sandoval v. Gonzales, 516 F.3d 35, 40-41 (2d Cir. 2008). 

 For the foregoing reasons, the petition for review is DENIED 

in part, as to review of the denial of the hardship waiver, and 

DISMISSED in part, as to review of the denial of voluntary departure. 

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk