     15-2717
     Orellana Merchan v. Sessions
                                                                                       BIA
                                                                               A088 445 134

                             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   23rd day of February, two thousand seventeen.
 5
 6   PRESENT:
 7            DENNIS JACOBS,
 8            ROSEMARY S. POOLER,
 9            CHRISTOPHER F. DRONEY,
10                 Circuit Judges.
11   _____________________________________
12
13   JAIME FERNANDO ORELLANA MERCHAN,
14            Petitioner,
15
16                     v.                                            15-2717
17                                                                   NAC
18   JEFF SESSIONS, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     Gregory C. Osakwe, Hartford, CT.
24
25   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
26                                       Assistant Attorney General; Anthony
27                                       P. Nicastro, Assistant Director;
28                                       Dana M. Camilleri, Trial Attorney,
29                                       Office of Immigration Litigation,
30                                       United States Department of Justice,
31                                       Washington, DC.
1        UPON DUE CONSIDERATION of this petition for review of a

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

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

4    DISMISSED for lack of jurisdiction.

5        Petitioner Jaime Fernando Orellana Merchan, a native and

6    citizen of Ecuador, seeks review of an August 7, 2015, decision

7    of the BIA denying his motion to reconsider a May 2015 BIA

8    decision, which affirmed a decision of an Immigration Judge

9    (“IJ”) denying Orellana’s application for cancellation of

10   removal.    In re Jaime Fernando Orellana Merchan, No. A088 445

11   134 (B.I.A. Aug. 7, 2015).    We assume the parties’ familiarity

12   with the underlying facts and procedural history in this case.

13       We review denials of motions to reconsider for abuse of

14   discretion.     Zhao Quan Chen v. Gonzales, 492 F.3d 153, 154 (2d

15   Cir. 2007).    An alien seeking reconsideration must “specify the

16   errors of law or fact in the previous order and [support the

17   motion with] pertinent authority.”      8 U.S.C.

18   § 1229a(c)(6)(C); 8 C.F.R. § 1003.2(b)(1); see also Jian Hui

19   Shao v. Mukasey, 546 F.3d 138, 173 (2d Cir. 2008).

20       Orellana challenges the agency’s underlying determination

21   that he failed to establish that his removal would result in

22   exceptional and extremely unusual hardship to his U.S.-citizen

23   children.     We lack jurisdiction over that challenge because the

                                      2
1    petition for review was not timely filed from the BIA’s May 2015

2    decision.   See Stone v. INS, 514 U.S. 386, 405 (1995) (requiring

3    separate timely petitions for review of the final removal order

4    and the denial of a motion to reconsider or reopen); Kaur v.

5    BIA, 413 F.3d 232, 233 (2d Cir. 2005) (same); see also 8 U.S.C.

6    § 1252(b)(1)(“The petition for review must be filed not later

7    than 30 days after the date of the final order of removal.”);

8    Luna v. Holder, 637 F.3d 85, 92 (2d Cir. 2011).            While

9    Orellana’s brief specifies that he is “petition[ing] for review

10   of the BIA’s decision denying his motion to reconsider,”

11   Petitioner’s Br. (“PB”) at 18, it makes no arguments concerning

12   the denial of reconsideration and challenges only the agency’s

13   underlying denial of cancellation of removal.

14       Even construing Orellana’s challenges as pertaining to the

15   BIA’s denial of reconsideration, we still lack jurisdiction

16   over the petition.   Notwithstanding Orellana’s assertions to

17   the contrary, it is well settled that we generally lack

18   jurisdiction to review the agency’s determination that an

19   applicant has failed to establish “exceptional and extremely

20   unusual hardship” because that is a discretionary determination

21   reserved for the agency.       See 8 U.S.C. § 1252(a)(2)(B);

22   Barco-Sandoval v. Gonzales, 516 F.3d 35, 39 (2d Cir. 2008).   We

23   nevertheless have jurisdiction to review constitutional claims

                                     3
1    and questions of law, 8 U.S.C. § 1252(a)(2)(D), which may

2    “‘arise for example in fact-finding which is flawed by an error

3    of law’ or ‘where a discretionary decision is argued to be an

4    abuse of discretion because it was made without rational

5    justification or based on a legally erroneous standard,’”

6    Barco-Sandoval, 516 F.3d at 39 (quoting Xiao Ji Chen v. U.S.

7    Dep’t of Justice, 471 F.3d 315, 329 (2d Cir. 2006)).          To

8    ascertain    whether   a   petitioner    raises   constitutional

9    challenges or questions of law over which we have jurisdiction,

10   we “study the argument[] asserted [and] . . . determine,

11   regardless of the rhetoric employed in the petition, whether

12   it merely quarrels over the correctness of the factual findings

13   or justification for the discretionary choices, in which case

14   the court would lack jurisdiction.”     Xiao Ji Chen, 471 F.3d at

15   329.

16          Orellana’s assertion that the IJ “downplay[ed]” the

17   seriousness of his daughter’s foot condition, PB at 25, fails

18   to raise a constitutional claim or a question of law.    Compare

19   Xiao Ji Chen, 471 F.3d at 329-30 (finding no constitutional

20   claim or question of law raised), with Mendez v. Holder, 566

21   F.3d 316, 323 (2d Cir. 2009) (finding error of law in a hardship

22   determination where “facts important to the subtle

23   determination of ‘exceptional and extremely unusual hardship’

                                    4
1    have been totally overlooked and others have been seriously

2    mischaracterized” (emphasis added)).    In any event, neither

3    the BIA nor the IJ “totally overlooked” or “seriously

4    mischaracterized” Orellana’s daughter’s foot condition; both

5    the IJ and the BIA considered it in the context of the hardship

6    determination, and Orellana did not submit any medical

7    documentation to support a diagnosis or the condition’s

8    severity.   See Mendez, 566 F.3d at 323.

9        Lastly, as the Government argues, Orellana’s remaining

10   arguments are unexhausted.    See Lin Zhong v. U.S. Dep’t of

11   Justice, 480 F.3d 104, 123 (2d Cir. 2007) (providing judicially-

12   imposed issue exhaustion “will usually mean that issues not

13   raised to the BIA will not be examined by the reviewing court”).

14   Orellana did not previously raise his arguments that he suffered

15   a violation of the Vienna Convention and that his attorney

16   before the agency was ineffective.      Orellana’s ineffective

17   assistance claim is also procedurally deficient because he has

18   yet to comply with the Lozada requirements.   See Jian Yun Zheng

19   v. U.S. Dep’t of Justice, 409 F.3d 43, 46 (2d Cir. 2005)

20   (requiring substantial compliance with Lozada to preserve an

21   ineffective assistance of counsel claim); see also In re Lozada,

22   19 I. & N. Dec. 637 (B.I.A. 1988).



                                    5
1       For the foregoing reasons, the petition for review is

2   DISMISSED for lack of jurisdiction.    As we have completed our

3   review, any pending motion for a stay of removal in this petition

4   is DISMISSED as moot

5                                FOR THE COURT:
6                                Catherine O’Hagan Wolfe, Clerk




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