2 2

- 6494 Barrientos Palacios 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 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 for the Second Circuit, 1 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 2 New York, on the 3 0 t h d a y of N o v e m b e r , two thousand twenty

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. 3 4 PRESENT: 5 GERARD E. LYNCH , 6 MICHAEL H. PARK, 7 EUNICE C. LEE 8 Circuit Judges

. 9

_____________________________________ 10 11 Leonel Arnoldo Barrientos Palacios , 12 Mildred Yojana Orellana Tejada, 13 14 Petitioners , 15 16

v. 2 2

- 6494 17 18 Merrick B. Garland , 19 United States Attorney General , 20 21 Respondent

. 22

_____________________________________ 23 24 FOR PETITIONERS : Usman B. Ahmad, Long Island City , NY. 25 26 FO R RESPONDENT : Brian M. Boynton, Principal Deputy Assistant, 27 Attorney General; Dawn S. Conrad, Senior 28 Litigation Counsel; A. Ashley Arthur, Trial 29 Attorney, Office of Immigration Litigation, United 30 States Department of Justice, Washington, DC. 31 322 UPON DUE CONSIDERATION of this petition for review of a Board of Immigration 1

Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND DECREED that the 2

petition for review is DISMISSED

. 3

Petitioners Barrientos Palacios and Orellana Tejad a (“Petitioners”) , natives and citizens of 4

Guatemala, seek review of a September 19, 2022 decision of the BIA affirming a December 18, 5

2018 decision of an Immigration Judge (“IJ”) denying their application for cancellation of removal 6

for certain non

- permanent residents. In re Barrientos Palacios
, No s . A099 089 711 /205 218 832 7

(B.I.A. Sept. 19, 2022), aff’g No. A099 089 711 (Immigr. Ct. N.Y.C. Dec. 18, 2018). We assume 8

the parties’ familiarity with the underlying facts and procedural history. 9

We have reviewed the IJ’s decision as supplemented by the BIA. See Chen v. Gonzales
, 10

417 F.3d 268, 271 (2d Cir. 2005). When applying for cancellation of removal, Petitioners bear 11

the burden to prove eligibility for relief from removal and to establish that they merit a favorable 12

exercise of discretion. See 8 U.S.C. § 1229a(c)(4)(A). Statutory eligibility for cancellation of 13

removal requires that Petitioners show, among other elements, that their “removal would result in 14

exceptional and extremely unusual hardship” to their lawful permanent resident or U.S. citizen 15

spouse, parent, or child. See 8 U.S.C. § 1229b(b)(1). The BIA concluded that Petitioners did 16

not establish the requisite hardship to their qualifying relatives. The BIA also declined to exercise 17

its discretion in favor of Petitioners. It noted that it had considered Petitioners’ “favorable 18

equities,” including Orellana Tejada’s lack of criminal history, Barrientos Palacios’ s steady 19

employment history, and both Petitioners’ support to their children, but “the dearth of candor, and 20

the gravity of the allegations of sexual abuse of a minor against [ Barrientos Palacios], weigh 21

against a favorable exercise of discretion.” 223 Our jurisdiction to review the agency’s denial of cancellation of removal is limited to 1

colorable legal or constitutional error. See 8 U.S.C. § 1252(a)(2)(B)(i), (D); Barco

- Sandoval v. 2

Gonzale s , 516 F.3d 35, 40

- 41 (2d Cir. 2007)

. “[W]e are obliged to dismiss any claim [] that 3

essentially disputes the correctness of the agency’s factfinding or the wisdom of its exercise of 4

discretion.” Hernandez v. Garland , 66 F. 4th 94, 101 (2d Cir. 2023 ) (alteration in original) 5

( citation and internal quotation marks omitted)

. 6

Here, the BIA gave two independent reasons for denying cancellation of removal: (1) that 7

P etitioners failed to demonstrate the required hardship to their U.S.

- citizen children, and (2) that 8

they did not merit cancellation as a matter of discretion. 9

Petitioners do not challenge the latter conclusion. Thus, we deem any such challenge 10

abandoned

. See Zhang v. Gonzales , 426 F.3d 540, 541 n.1 (2d Cir. 2005) (finding claim 11

abandoned when it was not raised in petitioner’s brief). The decision to deny cancellation as a 12

matter of discretion is an independent and dispositive ground for denying this form of relief. See 13

8 U.S.C

. § 1229b(b)(1) (stating that the agency “may” cancel removal of an applicant who satisfies 14

eligibility requirements) ; Rodriguez v. Gonzales , 451 F.3d 60, 62 (2d Cir. 2006) (“[A]ssuming an 15

alien satisfies the statutory requirements, the Attorney General in his discretion decides whether 16

to grant or deny relief.”)

. 17

Moreover, that decision is a matter of discretion that we lack jurisdiction to review. See 18

8 U.S.C. § 1252(a)(2)(B)(i) ; see also Rodriguez, 451 F.3d at 62 (stating that “we have no 19

jurisdiction to review the . . . discretionary determinations concerning either cancellation of 20

removal or adjustment of status” ). Because the agency’s discretionary denial of relief, which we 214 may not review and which in any event P etitioners do not challenge, is dispositive of their 1

application, we need not consider their challenge to the agency’s decision on eligibility. 2

For the foregoing reasons, the petition for review is DISMISSED

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4 FOR THE COURT: 5 Catherine O ’ Hagan Wolfe, Clerk of Court 6