15-1896-ag
Huerta-Morales v. Sessions

                                  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, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 21st day of March, two thousand seventeen.

PRESENT:            JOSÉ A. CABRANES,
                    RICHARD C. WESLEY,
                                 Circuit Judges,
                    VICTOR MARRERO,
                                 District Judge.*


JOSE ANTONIO HUERTA-MORALES,

                             Petitioner,                          15-1896-ag

                             v.

JEFFERSON B. SESSIONS III, UNITED STATES
ATTORNEY GENERAL,

                             Respondent. 


FOR PETITIONER:                                               James G. McKeon, New Canaan, CT.



     *
    Victor Marrero, Judge of the United States District Court for the Southern District of New
York, sitting by designation.
     
         The Clerk of Court is directed to amend the official caption as set forth above.

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FOR RESPONDENT:                                             Claire L. Workman, Senior Litigation
                                                            Counsel (Benjamin C. Mizer, Principal
                                                            Deputy Assistant Attorney General, Civil
                                                            Division; Keith I. McManus, Assistant
                                                            Director, Office of Immigration
                                                            Litigation, on the brief), U.S 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 be and hereby is GRANTED in part and DISMISSED in part.

         Petitioner Jose Antonio Huerta-Morales, a native and citizen of Mexico, seeks review of a
May 12, 2015 decision of the BIA affirming the October 29, 2013 decision of an Immigration Judge
(“IJ”) that ordered Huerta-Morales removed and denied adjustment of status and cancellation of
removal. In re Jose Antonio Huerta-Morales, No. A098 579 366 (B.I.A. May 12, 2015), aff’g No. A098
579 366 (Immig. Ct. Hartford Oct. 29, 2013). We assume the parties’ familiarity with the underlying
facts and procedural history in this case.

        Under the circumstances of this case, we have reviewed both the BIA’s and IJ’s decisions
“for the sake of completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006).
We review factual findings for substantial evidence and questions of law de novo. See Yangin Weng v.
Holder, 562 F.3d 510, 513 (2d Cir. 2009).

    I.      Adjustment of Status

         In order to be eligible for an adjustment of status under the Immigration and Nationality Act
(“INA”) § 245(i), an applicant must demonstrate, among other things, that he “is admissible to the
United States.” 8 U.S.C. § 1255(i)(2)(A). The agency denied Huerta-Morales’s application for
adjustment of status on the grounds that he is inadmissible under INA § 212(a)(9)(B)(i)(II), which
defines inadmissible persons to include anyone who “has been unlawfully present in the United
States for one year or more, and who again seeks admission within 10 years of the date of such
alien’s departure or removal from the United States.” 8 U.S.C. § 1182(a)(9)(B)(i)(II). Huerta-Morales
argues that the agency erred in finding him inadmissible because the ten-year period following his
last departure from the United States, which occurred in 1999, has expired. The Government does
not respond to the merits of Huerta-Morales’s argument, but contends instead that he failed to raise
the argument before the BIA. We disagree.

        In his brief to the BIA, Huerta-Morales argued that the IJ “refused to facially consider
whether any departure bar can be implicated . . . [for] one who has been continuously physically
present and domiciled in the US and has not departed for more than ten years since the last entry;
and is seeking ‘admission’ . . . more than ten years after the last entry.” Administrative Record 12.

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He also stated that “[t]he IJ erred as a matter of law and construction and abused his permitted
discretion in finding [him] inadmissible in the circumstances and pretermitting [his] application for
. . . adjustment.” Id. Although the Government faults Huerta-Morales for not including supporting
legal citations in his BIA appeal brief, he raised the argument with specificity before the BIA and
therefore exhausted it. See Brito v. Mukasey, 521 F.3d 160, 164 (2d Cir. 2008) (“[I]n order to preserve
an issue for review by this Court, the petitioner must not only raise it before the BIA, but do so with
specificity.”). Accordingly, the BIA erred by failing to consider the argument and stating that
Huerta-Morales “d[id] not dispute that he is inadmissible.” Administrative Record 3; see Yan Chen v.
Gonzales, 417 F.3d 268, 272 (2d Cir. 2005) (“The BIA, when considering an appeal, must actually
consider the evidence and argument that a party presents.” (internal quotation marks omitted)).

        Because neither the BIA nor the IJ considered whether Huerta-Morales remained
inadmissible even though INA § 212(a)(9)(B)(i)(II)’s 10-year period had expired, we grant his
petition for review insofar as it relates to the denial of his adjustment of status and remand for the
agency to consider this issue in the first instance. See Gonzales v. Thomas, 547 U.S. 183, 186 (2006) (“A
court of appeals is not generally empowered to conduct a de novo inquiry into the matter being
reviewed and to reach its own conclusions based on such an inquiry.” (internal quotation marks
omitted)).

    II.     Cancellation of Removal

         In order to demonstrate eligibility for cancellation of removal, a nonpermanent resident like
Huerta-Morales must establish, among other things, that his “removal would result in exceptional
and extremely unusual hardship to [his] spouse, parent, or child, who is a citizen of the United
States . . . .” 8 U.S.C. § 1229b(b)(1)(D). The standard of “exceptional and extremely unusual
hardship” is limited to “truly exceptional” situations and requires a showing of hardship that is
“substantially beyond the ordinary hardship that would be expected” when a close family member
leaves the country. In re Monreal-Aguinaga, 23 I. & N. Dec. 56, 62 (B.I.A. 2001); Barco-Sandoval v.
Gonzales, 516 F.3d 35, 39 (2d Cir. 2008). In making this hardship determination, “consideration
should be given to the age, health, and circumstances of the qualifying family members, including
how a lower standard of living or adverse country conditions in the country of return might affect
those relatives.” In re Recinas, 23 I. & N. Dec. 467, 468-69 (B.I.A. 2002) (citing In re Monreal-Aguinaga,
23 I. & N. Dec. at 63).

        Because the agency denied cancellation of removal based on Huerta-Morales’s failure to
establish “exceptional and extremely unusual hardship,” our review is limited to constitutional claims
and questions of law. See 8 U.S.C. § 1252(a)(2)(B), (D); Barco-Sandoval, 516 F.3d at 39. In order to
ascertain whether a petitioner raises constitutional challenges or questions of law over which we
have jurisdiction, we must “study the argument[ ] asserted [and] . . . determine, regardless of the
rhetoric employed in the petition, whether it merely quarrels over the correctness of the factual


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finding or justification for the discretionary choices, in which case the court would lack jurisdiction.”
Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d Cir. 2006).

        Huerta-Morales argues that the agency applied an incorrect legal standard and failed to
properly consider the evidence of his U.S.-citizen daughter’s hardship. We disagree. The agency
considered the appropriate factors and explicitly acknowledged Huerta-Morales’s concerns for his
daughter’s safety and education; it simply concluded that those concerns did not rise to the level of
“exceptional and extremely unusual hardship.” Huerta-Morales’s challenges to the denial of
cancellation of removal merely employ the rhetoric of a legal challenge to “‘quarrel[] over the
correctness of the factual findings or justification for the discretionary choices’ made by the agency.”
Barco-Sandoval, 516 F.3d at 42 (quoting Xiao Ji Chen, 471 F.3d at 329). As a result, we lack jurisdiction
to review his petition insofar as it relates to the denial of cancellation of removal.

                                           CONCLUSION

         For the foregoing reasons, the petition for review is GRANTED in part, as it relates to the
denial of adjustment of status, and REMANDED to the agency for further proceedings consistent
with this order, and DISMISSED in part, as it relates to the denial of cancellation of removal, for
lack of jurisdiction. 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.

                                                        FOR THE COURT:
                                                        Catherine O’Hagan Wolfe, Clerk




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