         13-331
         Cedillo v. Lynch
                                                                                       BIA
                                                                               A089 014 724
                             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.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 24th day of June, two thousand sixteen.
 5
 6       PRESENT:
 7                BARRINGTON D. PARKER,
 8                DEBRA ANN LIVINGSTON,
 9                GERARD E. LYNCH,
10                     Circuit Judges.
11       _____________________________________
12
13       CARLOS VINICIO CEDILLO, AKA CARLOS
14       CEDILLO,
15                Petitioner,
16
17                          v.                                  13-331
18                                                              NAC
19       LORETTA E. LYNCH, UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _____________________________________
23
24       FOR PETITIONER:               Justin Conlon, Law Offices of Justin
25                                     Conlon, Hartford, CT.
26
27       FOR RESPONDENT:               Stuart F. Delery, Assistant Attorney
28                                     General; Anthony W. Norwood, Senior
29                                     Litigation Counsel; Manuel Palau,
 1                           Trial Attorney, Office of
 2                           Immigration Litigation, United
 3                           States Department of Justice,
 4                           Washington, D.C.
 5
 6       UPON DUE CONSIDERATION of this petition for review of a

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

 8   ORDERED, ADJUDGED, AND DECREED that the petition for review

 9   is DISMISSED.

10       Petitioner Carlos Vinicio Cedillo, a native and citizen

11   of Ecuador, seeks review of a January 3, 2013 decision of

12   the BIA denying his timely motion to reopen to seek

13   voluntary departure.   In re Carlos Vinicio Cedillo, No. A089

14   014 724 (B.I.A. Jan. 3, 2013).     We assume the parties’

15   familiarity with the underlying facts and procedural history

16   in this case.

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

18   abuse of discretion.   See Ali v. Gonzales, 448 F.3d 515, 517

19   (2d Cir. 2006) (per curiam).     “A motion to reopen

20   proceedings shall not be granted unless it appears to the

21   Board that evidence sought to be offered is material and was

22   not available and could not have been discovered or

23   presented at the former hearing.”     8 C.F.R. § 1003.2(c)(1).

24   Failure to offer such evidence is, therefore, a proper

25   ground on which the BIA may deny a motion to reopen, as is

                                    2
 1   the movant’s failure to establish a prima facie case for the

 2   underlying substantive relief sought.     INS v. Abudu, 485

 3   U.S. 94, 104-05 (1988).   In addition, where the ultimate

 4   relief is discretionary, “the BIA may leap ahead, as it

 5   were, over the two threshold concerns (prima facie case and

 6   new evidence[]), and simply determine that even if they were

 7   met, the movant would not be entitled to the discretionary

 8   grant of relief.”   Id. at 105.

 9       We are “barred by statute from reviewing the denial of

10   a request for voluntary departure.”     See Carcamo v. U.S.

11   Dep’t of Justice, 498 F.3d 94, 97 (2d Cir. 2007) (citing 8

12   U.S.C. § 1229c(f) (“No court shall have jurisdiction over an

13   appeal from denial of a request for an order of voluntary

14   departure . . . .”); 8 U.S.C. § 1252(a)(2)(B)(i) (depriving

15   courts of jurisdiction to review “any judgment regarding the

16   granting of relief under section ... 1229c[, which governs

17   grants of voluntary departure”])).    Nevertheless, we retain

18   jurisdiction to review constitutional claims and questions

19   of law.   8 U.S.C. § 1252(a)(2)(D).   A “petitioner cannot . .

20   . secure review by using the rhetoric of a ‘constitutional

21   claim’ or ‘question of law’ to disguise what is essentially

22   a quarrel about fact-finding or the exercise of discretion.”


                                   3
 1   Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d

 2   Cir. 2006).

 3       Cedillo’s argument, that the BIA engaged in

 4   impermissible fact-finding by concluding that the dismissal

 5   of his charges under a pretrial diversion program did not

 6   outweigh his serious criminal activity, “merely quarrels

 7   over the correctness of the . . . justification for [the

 8   BIA’s] discretionary choice[].”    Id.   As noted above, the

 9   BIA may deny a motion to reopen based on its own

10   determination that “the movant would not be entitled to the

11   [underlying] discretionary grant of relief” sought.     Abudu,

12   485 U.S. at 105.    Cedillo’s contention, in reliance on

13   Padmore v. Holder, 609 F.3d 62, 67 (2d Cir. 2010), that the

14   BIA was not free to determine that he had engaged serious

15   criminal activity because the IJ had merely observed that

16   Cedillo had serious charges pending, is misplaced.     Padmore

17   concerned an appeal from an IJ’s decision to the BIA, see

18   id. at 64, and we have recognized that the BIA will properly

19   engage in fact-finding when, as here, it is deciding a

20   motion to reopen.    See, e.g., Jian Hui Shao v. Mukasey, 546

21   F.3d 138, 168 (2d Cir. 2008); Li Yong Cao v. Dep’t of

22   Justice, 421 F.3d 149, 151, 156 (2d Cir. 2005).     See also 8


                                    4
 1   C.F.R. § 1003.1(d)(3)(iv) (“Except for taking administrative

 2   notice of commonly known facts such as current events or the

 3   contents of official documents, the Board will not engage in

 4   factfinding in the course of deciding appeals.”) (emphasis

 5   added)).

 6       For the foregoing reasons, the petition for review is

 7   DISMISSED. The pending request for oral argument in this

 8   petition is DENIED in accordance with Federal Rule of

 9   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

10   34.1(b).

11                              FOR THE COURT:
12                              Catherine O’Hagan Wolfe, Clerk
13
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