     15-2088
     Funes Menjivar v. Sessions
                                                                                       BIA
                                                                               A095 041 878
                             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.

 1        At a stated term of the United States Court of Appeals for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   16th day of February, two thousand seventeen.
 5
 6   PRESENT:
 7            RALPH K. WINTER,
 8            PETER W. HALL,
 9            SUSAN L. CARNEY,
10                 Circuit Judges.
11   _____________________________________
12
13   MANUEL DE JESUS FUNES MENJIVAR,
14            Petitioner,
15
16                     v.                                            15-2088
17                                                                   NAC
18   JEFF SESSIONS, UNITED STATES
19   ATTORNEY GENERAL,1
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     Maggy T. Duteau, New York, NY.
24
25   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
26                                       Assistant Attorney General; Greg D.
27                                       Mack, Senior Litigation Counsel;

     1
       Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney
     General Jeff Sessions is automatically substituted for former
     Attorney General Loretta E. Lynch as the Respondent in this case.
1                                Christina P. Greer, Trial Attorney,
2                                Office of Immigration Litigation,
3                                United States Department of Justice,
4                                Washington, DC.
5
6        UPON DUE CONSIDERATION of this petition for review of a

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

8    ORDERED, ADJUDGED, AND DECREED that the petition for review is

9    DISMISSED.

10       Petitioner Manuel De Jesus Funes Menjivar, a native and

11   citizen of El Salvador, seeks review of a May 29, 2015 decision

12   of the BIA denying his motion to reopen.   In re Manuel De Jesus

13   Funes Menjivar, No. A095 041 878 (B.I.A. May 29, 2015).      We

14   assume the parties’ familiarity with the underlying facts and

15   procedural history in this case.

16       In the main, Funes challenges the IJ’s reasoning for

17   denying cancellation.    But he did not petition for review of

18   that decision.    See Stone v. INS, 514 U.S. 386, 405 (1995)

19   (requiring separate timely petitions for review of the final

20   removal order and the denial of a motion to reconsider or

21   reopen); Kaur v. BIA, 413 F.3d 232, 233 (2d Cir. 2005) (per

22   curiam) (same).     Funes’s contentions that the IJ failed to

23   consider the implications of El Salvador’s temporary protective

24   status or his country conditions evidence are therefore not

25   before the Court.


                                    2
1           Funes also challenges the BIA’s denial of his motion to

2    reopen.    As a general matter, we review such a decision “for

3    abuse of discretion, mindful that motions to reopen ‘are

4    disfavored.’”         Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006)

5    (quoting INS v. Doherty, 502 U.S. 314, 322-23 (1992)).                 But we

6    lack jurisdiction to review the agency’s denial of cancellation

7    of removal based on an alien’s failure to establish “exceptional

8    and extremely unusual hardship,” 8 U.S.C. 1229b(b)(1)(D),

9    because that is a discretionary determination reserved for the

10   agency,    see    8    U.S.C.     § 1252(a)(2)(B);        Barco-Sandoval    v.

11   Gonzales, 516 F.3d 35, 39 (2d Cir. 2008).                   We nevertheless

12   retain    jurisdiction       to    review     constitutional    claims     and

13   questions of law with respect to cancellation, 8 U.S.C.

14   § 1252(a)(2)(D), which may “‘arise for example in fact-finding

15   which is flawed by an error of law’ or ‘where a discretionary

16   decision is argued to be an abuse of discretion because it was

17   made without rational justification or based on a legally

18   erroneous standard,’” Barco-Sandoval, 516 F.3d at 39 (quoting

19   Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d

20   Cir.    2006)).        To   ascertain       whether   a   petitioner   raises

21   constitutional challenges or questions of law over which this

22   Court has jurisdiction, we “study the argument[] asserted



                                             3
1    [and] . . . determine, regardless of the rhetoric employed in

2    the petition, whether it merely quarrels over the correctness

3    of the factual findings or justification for the discretionary

4    choices, in which case the court would lack jurisdiction.”

5    Xiao Ji Chen, 471 F.3d at 329.       For example, we have found an

6    error of law in a hardship determination where “facts important

7    to the subtle determination of ‘exceptional and extremely

8    unusual hardship’ have been totally overlooked and others have

9    been seriously mischaracterized.”       Mendez v. Holder, 566 F.3d

10   316, 323 (2d Cir. 2009).

11       Here, we lack jurisdiction over the petition: Funes’s

12   assertion that the BIA failed to consider his daughter’s speech

13   condition merely employs the rhetoric of a question of law to

14   challenge the agency’s discretionary hardship determination.

15   See Xiao Ji Chen, 471 F.3d at 329.       The BIA reviewed Funes’s

16   evidence and concluded that reopened proceedings would not

17   reach a different outcome.   See Matter of Coelho, 20 I. & N.

18   Dec. 464, 473 (B.I.A. 1992); 8 C.F.R. § 1003.2(c).           That

19   determination, in any event, was reasonable.          Some of the

20   school reports predated the merits hearing and therefore were

21   not new evidence.   Those that postdated the hearing did not

22   reflect substantial impairment.         The BIA likewise had the



                                      4
1    discretion to find that the reports failed to demonstrate that

2    Funes’s daughter’s educational needs, such as they are, will

3    go unaddressed if she remains in the United States without her

4    father.      Diminished    educational   opportunities    rarely

5    constitute exceptional and extremely unusual hardship.    See In

6    re Andazola-Rivas, 23 I. & N. Dec. 319, 323 n.1 (B.I.A. 2002)

7    (“[A] finding that diminished educational opportunities result

8    in ‘exceptional and extremely unusual hardship’ would mean that

9    cancellation of removal would be granted in virtually all cases

10   involving [applicants] from developing countries who have young

11   United States citizen or lawful permanent resident children[,

12   which] . . . is not consistent with congressional intent.”).

13       For the foregoing reasons, the petition for review is

14   DISMISSED.   As we have completed our review, any stay of removal

15   that the Court previously granted in this petition is VACATED,

16   and any pending motion for a stay of removal in this petition

17   is DISMISSED as moot.     Any pending request for oral argument

18   in this petition is DENIED in accordance with Federal Rule of

19   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

20   34.1(b).

21                                 FOR THE COURT:
22                                 Catherine O=Hagan Wolfe, Clerk




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