10-1332-ag
Macancela v. Holder

               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 Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 18th day of April, two thousand eleven.
PRESENT:
            AMALYA L. KEARSE,
            ROGER J. MINER,
            DENNY CHIN,
                      Circuit Judges.

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LUIS HERIBERTO MACANCELA,
                    Petitioner,

            -v.-                                    10-1332-ag

ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
                    Respondent.
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FOR PETITIONER:       H. RAYMOND FASANO, Madeo & Fasano, New York,
                      New York.

FOR RESPONDENT:       FRANKLIN M. JOHNSON, Trial Attorney, Office
                      of Immigration Litigation (Tony West,
                      Assistant Attorney General, Paul Fiorino,
                      Senior Litigation Counsel, on the brief), for
                      Eric H. Holder, Jr., United States Attorney
                      General, 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

DISMISSED.

          Luis Heriberto Macancela, a native and citizen of

Ecuador, petitions for review of a March 11, 2010 final order of

removal of the BIA affirming a March 10, 2009 decision of

Immigration Judge ("IJ") Philip Verrillo denying Macancela's

application for cancellation of removal.    See 8 U.S.C.

§ 1229b(b)(1).    The IJ determined that Macancela failed to

establish that:    (1) his removal would result in "exceptional and

extremely unusual hardship" to his three U.S. citizen children,

§ 1229b(b)(1)(D), and (2) he "has been a person of good moral

character," § 1229b(b)(1)(B), in light of his history of arrests

for drunk driving and domestic violence, see In re Macancela, No.
A029 652 926 (B.I.A. Mar. 11, 2010), aff'g No. A029 652 926

(Immig. Ct. Hartford, Conn. Mar. 10, 2009).    We assume the

parties' familiarity with the facts and procedural history of the

case.

             On a petition for review of a denial of an application

for cancellation of removal, we have jurisdiction only to

consider constitutional claims and questions of law, see 8 U.S.C.

§ 1252(a)(2)(B)(i), (D), and we review those issues de novo, see

Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).     In addition,

because the BIA did not explicitly adopt the IJ's decision in its

analysis, we review only the BIA's decision, Aliyev v. Mukasey,

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549 F.3d 111, 115-16 (2d Cir. 2008), which was based on its

conclusion that Macancela had not shown that his removal would

result in "exceptional and extremely unusual hardship" to his

children, see 8 U.S.C. § 1229b(b)(1)(D).     The decision as to

whether an application for cancellation of removal should be

granted based on a claim of hardship is a determination committed

to the agency's discretion, and we lack jurisdiction to review

that decision, see § 1252(a)(2)(B)(i), "except in those rare

cases where the BIA decision . . . is made without rational

justification or based on an erroneous legal standard, or rests

on fact-finding which is flawed by an error of law," Mendez v.
Holder, 566 F.3d 316, 322 (2d Cir. 2009) (per curiam) (internal

quotation marks and citations omitted).

          Macancela argues that the BIA so overestimated his

ability to support his family once he is removed and so

understated the extent of his son's speech disabilities that its

conclusions constituted an error of law.     But Macancela fails to

show, as he must to give the court jurisdiction, that "some facts

important to the subtle determination of [hardship] have been

totally overlooked and others have been seriously

mischaracterized."   Id. at 323.     Rather, the record supports the

BIA's conclusion that Macancela's family in Ecuador may be able

to offer financial assistance and that Macancela is likely to

find agricultural or construction work.     The record also

indicates that the therapy Macancela's son presently receives

will continue in his absence.   We do not doubt that removal will

be difficult for Macancela's family, but "a petitioner cannot use

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the rhetoric of a 'constitutional claim' or 'question of law' to

disguise what is essentially a quarrel about fact-finding or the

exercise of discretion," Barco-Sandoval v. Gonzalez, 516 F.3d 35,

39 (2d Cir. 2008) (internal quotation marks and brackets

omitted), that we lack jurisdiction to review, 8 U.S.C. §

1252(a)(2)(B)(I).

          We have considered petitioner's other arguments and

conclude they are without merit.     Accordingly, the petition for

review is DISMISSED for lack of jurisdiction.

                         FOR THE COURT:
                         CATHERINE O'HAGAN WOLFE, CLERK




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