    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.
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

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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

                                  3
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

                                  4
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




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