     15-3197
     Perez v. Sessions
                                                                                         BIA
                                                                               Christensen, IJ
                                                                               A094 357 311

                              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   10th day of April, two thousand seventeen.
 5
 6   PRESENT:
 7            GUIDO CALABRESI,
 8            DEBRA ANN LIVINGSTON,
 9            DENNY CHIN,
10                 Circuit Judges.
11   _____________________________________
12
13   ELDER ISABEL PEREZ,
14            Petitioner,
15
16                       v.                                          15-3197
17                                                                   NAC
18   JEFFERSON B. SESSIONS III, UNITED
19   STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     Perham Makabi, Kew Gardens, N.Y.
24
25   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
26                                       Assistant Attorney General; Shelley
27                                       R. Goad, Assistant Director; Carmel
28                                       A. Morgan, Trial Attorney, Office of
29                                       Immigration Litigation, United
30                                       States Department of Justice,
31                                       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 is

4    DISMISSED.

5           Petitioner Elder Isabel Perez, a native and citizen of

6    Honduras, seeks review of a September 11, 2015, decision of the

7    BIA, affirming a May 22, 2014, decision of an Immigration Judge

8    (“IJ”) denying Perez’s motion to reopen.        In re Elder Isabel

9    Perez, No. A094 357 311 (B.I.A. Sept. 11, 2015), aff’g No. A094

10   357 311 (Immigr. Ct. N.Y.C. May 22, 2014).           We assume the

11   parties’ familiarity with the underlying facts and procedural

12   history in this case.

13          Perez does not dispute that his 2014 motion to reopen was

14   untimely because his order of removal was final in 2006.           See

15   8 U.S.C. § 1229a(c)(7)(C)(i) (setting 90-day period for filing

16   motion to reopen); 8 C.F.R. § 1003.23(b)(1) (same).           This time

17   limitation may be excused if the motion requests reopening to

18   apply for asylum and “is based on changed country conditions

19   arising in the country of nationality or the country to which

20   removal has been ordered, if such evidence is material and was

21   not available and would not have been discovered or presented

22   at the previous proceeding.”       8 U.S.C. § 1229a(c)(7)(C)(ii).

23   When    the   agency   considers   relevant   evidence   of    country
1    conditions in evaluating a motion to reopen, we review the

2    agency’s factual findings under the substantial evidence

3    standard.   See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d

4    Cir. 2008).

5        However, our jurisdiction to review the BIA’s denial of

6    reopening in this case is limited to constitutional claims and

7    colorable questions of law because Perez’s removal order was

8    based on his conviction for a controlled substance offense.   8

9    U.S.C. § 1252(a)(2)(C), (D); Barco-Sandoval v. Gonzales, 516

10   F.3d 35, 41 (2d Cir. 2007); Durant v. U.S. INS, 393 F.3d 113,

11   115-16 (2d Cir. 2004) (applying jurisdictional bar in

12   § 1252(a)(2)(C) to petitions for review challenging the denial

13   of reopening).   In order to ascertain whether a petitioner

14   raises constitutional challenges or questions of law over which

15   we have jurisdiction, we “study the arguments asserted

16   [and] . . . determine, regardless of the rhetoric employed in

17   the petition, whether it merely quarrels over the correctness

18   of the factual findings or justification for the discretionary

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

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

21   Cir. 2006).
                                    3
1          Perez argues that the agency erred in concluding that he

2    failed to demonstrate a change in conditions in Honduras.

3    Although he frames this challenge as a question of law, i.e.,

4    that the agency ignored Second Circuit precedent holding that

5    worsened conditions could constitute a change in country

6    conditions, his challenge implicates the sort of agency factual

7    and     discretionary     determinations        over    which    we    lack

8    jurisdiction.        See Barco-Sandoval, 516 F.3d at 42.              Though

9    there    is   some    evidence   of   increasingly      severe   violence

10   surrounding     land    disputes      related    to    drug   trafficking

11   post-2009, there was also substantial evidence that violence

12   against landowners had long been ongoing.              Because the agency

13   did fairly consider the evidence in the record, Perez cannot

14   demonstrate that the agency erred as a matter of law in

15   concluding that he failed to show a change in conditions.               See

16   Xiao Ji Chen, 471 F.3d at 330-31; see also Siewe v. Gonzales,

17   480 F.3d 160, 167 (2d Cir. 2007) (“Decisions as to . . . which

18   of competing inferences to draw are entirely within the province

19   of the trier of fact.” (internal quotation marks omitted)).

20   Because the BIA’s conclusion that Perez did not establish a

21   change in conditions is dispositive of his motion to reopen,
                                           4
1    we need not reach the remainder of Perez’s arguments challenging

2    the BIA’s alternative grounds for dismissing Perez’s appeal.

3        For the foregoing reasons, the petition for review is

4    DISMISSED.   As we have completed our review, any stay of removal

5    that the Court previously granted in this petition is VACATED,

6    and any pending motion for a stay of removal in this petition

7    is DISMISSED as moot.   Any pending request for oral argument

8    in this 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




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