    12-4236
    Duarte v. Holder
                                                                                  BIA
                                                                          A073 570 007
                        UNITED STATES COURT OF APPEALS
                            FOR THE SECOND CIRCUIT
                               SUMMARY ORDER
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         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 18th day of November, two thousand thirteen.

    PRESENT:
             JON O. NEWMAN,
             JOSÉ A. CABRANES,
             PETER W. HALL,
                  Circuit Judges.
    _____________________________________

    NERY ORLANDO DUARTE,
             Petitioner,

                       v.                                  12-4236
                                                           NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:               Bruno J. Bembi, Hempstead, New York.

    FOR RESPONDENT:               Stuart F. Delery, Assistant Attorney
                                  General; Blair T. O’Connor,
                                  Assistant Director; Remi Da Rocha-
                                  Afodu, Attorney, Office of
                                  Immigration Litigation, Civil
                                  Division, United States Department
                                  of Justice, Washington, D.C.
    UPON DUE CONSIDERATION of this petition for review of a

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

hereby ORDERED, ADJUDGED, AND DECREED that the petition for

review is DENIED.

    Petitioner Nery Orlando Duarte, a native and citizen of

Guatemala, seeks review of a September 26, 2012, order of

the BIA denying his motion to reopen.   In re Nery Orlando

Duarte, No. A073 570 007 (B.I.A. Sept. 26, 2012).     We assume

the parties’ familiarity with the underlying facts and

procedural history in this case.

    We review the BIA’s denial of a motion to reopen for

abuse of discretion.   Ali v. Gonzales, 448 F.3d 515, 517 (2d

Cir. 2006). While we lack jurisdiction to review

discretionary denials of cancellation, 8 U.S.C.

§ 1252(a)(2)(B)(i), including in the motion to reopen

context, see Durant v. INS, 393 F.3d 113, 115 (2d Cir.

2004), we retain jurisdiction to review constitutional

claims and questions of law.   8 U.S.C. § 1252(a)(2)(D).    In

this case, Duarte’s argument that he was held to an

inappropriately stringent standard for reopening is a

question of law over which the Court retains jurisdiction.

8 U.S.C. § 1252(a)(2)(D); Barco-Sandoval v. Gonzales, 516


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F.3d 35, 40 (2d Cir. 2008) (“the argument that a

discretionary decision was based on a legally erroneous

standard raises a question of law”).

    Here, Duarte alleged only that he had a qualifying

relative for cancellation, his daughter, without specifying

any exceptional or extremely unusual hardship, beyond the

fact that he provided financial support for her.   The BIA

acknowledged these factors, and there is no indication that

it used too stringent a standard in its determination that

they did not demonstrate a prima facie case of exceptional

and extremely unusual hardship.    INS v. Abudu, 485 U.S. 94,

104 (1988); Matter of Monreal-Aguinaga, 23 I&N Dec. 56, 65

(BIA 2001) (holding that an applicant for cancellation must

demonstrate hardship to a qualifying family member that is

“substantially different from, or beyond, that which would

normally be expected from the deportation of an alien with

close family members here”).   Additionally, the BIA did not

abuse its discretion in denying reconsideration, as Duarte

failed to identify any error in the BIA’s prior decision.

See 8 U.S.C. § 1229a(c)(6); 8 C.F.R. § 1003.2(b)(1); Ke Zhen

Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 90 (2d Cir.

2001).


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    For the foregoing reasons, the petition for review is

DENIED.   As we have completed our review, any stay of

removal that the Court previously granted in this petition

is VACATED, and any pending motion for a stay of removal in

this petition is DISMISSED as moot.    Any pending request for

oral argument in this petition is DENIED in accordance with

Federal Rule of Appellate Procedure 34(a)(2), and Second

Circuit Local Rule 34.1(b).

                              FOR THE COURT:
                              Catherine O’Hagan Wolfe, Clerk




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