         13-1984
         Fernandez v. Holder
                                                                                         BIA
                                                                                 A042 091 035
                                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 22nd day of April, two thousand fourteen.
 5
 6       PRESENT:
 7                JOHN M. WALKER, JR.,
 8                JOSÉ A. CABRANES,
 9                RAYMOND J. LOHIER, JR.,
10                     Circuit Judges.
11       _________________________________________
12
13       JACQUELINE DEL CARMEN FERNANDEZ,
14       AKA JACKELINE FERNANDEZ,
15                Petitioner,
16
17                             v.                                  13-1984
18                                                                 NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _________________________________________
23
24       FOR PETITIONERS:                Anayancy R. Housman, Elizabeth, NJ.
25
26       FOR RESPONDENT:                 Stuart F. Delery, Assistant Attorney
27                                       General; David V. Bernal, Assistant
28                                       Director; Anthony C. Payne, Senior
29                                       Litigation Counsel, Office of
30                                       Immigration Litigation, United
31                                       States Department of Justice,
32                                       Washington, D.C.
 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

 4   is DISMISSED.

 5       Petitioner Jacqueline Del Carmen Fernandez, a native

 6   and citizen of the Dominican Republic, seeks review of the

 7   April 24, 2013, decision of the BIA denying her motion to

 8   reopen.   In re Jacqueline Del Carmen Fernandez, No. A042 091

 9   035 (B.I.A. Apr. 24, 2013).   We assume the parties’

10   familiarity with the underlying facts and procedural history

11   of the case.

12       We review the denial of a motion to reopen for abuse of

13   discretion, Kaur v. BIA, 413 F.3d 232, 233 (2d Cir. 2005)

14   (per curiam), and when the BIA considers relevant evidence

15   of country conditions in evaluating a motion to reopen, we

16   review the BIA’s factual findings under the substantial

17   evidence standard.   See Jian Hui Shao v. Mukasey, 546 F.3d

18   138, 169 (2d Cir. 2008).   However, we lack jurisdiction to

19   review any final order of removal against an alien “who is

20   removable by reason of having committed” an aggravated

21   felony.   8 U.S.C. § 1252(a)(2)(C).   Where review of the

22   underlying removal order would be prohibited by


                                   2
 1   § 1252(a)(2)(C), the jurisdictional bar has been extended to

 2   petitions seeking review of the BIA’s denial of a motion to

 3   reopen.    See Durant v. INS, 393 F.3d 113, 115–16 (2d Cir.

 4   2004).    Notwithstanding these provisions, we nonetheless

 5   retain jurisdiction to review constitutional claims and

 6   “questions of law.”    8 U.S.C. § 1252(a)(2)(D).

 7       In order to ascertain whether a petitioner raises

 8   constitutional challenges or questions of law over which we

 9   have jurisdiction, we “study the arguments asserted [and] .

10   . . determine, regardless of the rhetoric employed in the

11   petition, whether it merely quarrels over the correctness of

12   the factual findings or justification for the discretionary

13   choices, in which case the court would lack jurisdiction.”

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

15   Cir. 2006).    In this case, Fernandez does not raise any

16   constitutional claims or questions of law.    Fernandez first

17   argues that the BIA erred in determining that she did not

18   establish a change in country conditions.    A determination

19   regarding whether the evidence submitted established a

20   change in country conditions is a factual finding, and we

21   lack jurisdiction to review it.    See id. at 330.   Fernandez

22   also argues that the agency’s denial of her motion to reopen


                                    3
 1   violated her due process right.    However, Fernandez’s

 2   specific claim is that her due process right was violated

 3   because the BIA did not properly consider the evidence of

 4   changed country conditions.    This argument “merely quarrels

 5   over the correctness of the factual findings.”    See id. at

 6   329.

 7          Because the BIA’s conclusion that Fernandez did not

 8   establish changed country conditions was dispositive of her

 9   motion to reopen, we do not address her argument regarding

10   her prima facie eligibility for relief.

11          For the foregoing reasons, the petition for review is

12   DISMISSED.

13                                 FOR THE COURT:
14                                 Catherine O’Hagan Wolfe, Clerk
15
16




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