Victor Ferman v. Eric Holder, Jr., No. 13-2106 (4th Cir. 2014)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-2106 VICTOR A. FERMAN, a/k/a Victor Alberto Ferman Molina, Petitioner, v. ERIC H. HOLDER, JR., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Submitted: February 11, 2014 Decided: February 20, 2014 Before WILKINSON, KING, and SHEDD, Circuit Judges. Petition dismissed in part, denied in part by unpublished per curiam opinion. Victor A. Ferman, Petitioner Pro Se. Michael Christopher Heyse, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Victor A. Ferman, a native and citizen of El Salvador, petitions for review of an order of the Board of Immigration Appeals ( Board ) judge s order and dismissing denying his his appeal motion from to the immigration remand. Ferman s request for cancellation of removal under 8 U.S.C. § 1229b(b)(1) (2012) was denied because he failed to show that his removal would result in exceptional and extremely unusual hardship to his qualifying relatives. We dismiss in part and deny in part the petition for review. Under Denials of 8 U.S.C. § discretionary 1252(a)(2)(B)(i) relief, no (2012), court entitled shall have jurisdiction to review any judgment regarding the granting of relief under section . . . 1229b, governing cancellation of removal. which is the section See Obioha v. Gonzales, 431 F.3d 400, 405 (4th Cir. 2005) ( It is quite clear that the gatekeeper provision [of § 1252(a)(2)(B)(i)] bars our jurisdiction to review a decision of the BIA to actually deny a petition for cancellation of removal or the other enumerated forms of discretionary relief. ). However, this court does have jurisdiction over constitutional claims and questions of law. U.S.C. § 1252(a)(2)(B)(i), (D). 480 (4th Cir. 2006). 8 Jean v. Gonzales, 435 F.3d 475, [A]n exceptional and extremely unusual hardship determination is a subjective, discretionary judgment 2 that has been carved out of appellate jurisdiction. Romero- Torres v. Ashcroft, 327 F.3d 887, 888 (9th Cir. 2003). Indeed, we have concluded that the issue of hardship is committed to agency discretion and thus is not subject to appellate review. Okpa v. INS, 266 F.3d 313, 317 (4th Cir. 2001). Because Ferman does not raise a constitutional claim or a question of law regarding the dismissal of his appeal from the immigration judge s order denying cancellation of removal, we lack jurisdiction and dismiss in part the petition for review. A motion to remand in order to consider new evidence that is filed while an appeal to the Board is pending is held to the same legal standard as a motion to reopen. INS, 146 F.3d 227, 234 (4th Cir. 1998). state the new facts to be proven at a See Onyeme v. Such a motion must hearing and supported by affidavits or other evidentiary material. C.F.R. § 1003.2(c)(1) (2013). must be See 8 Further, such motion shall not be granted unless the evidence sought to be offered is material and was not available and could not presented at the former hearing. have Id. been discovered or The movant must also demonstrate that the new evidence would likely change the result in the case. (B.I.A. 1992). See Matter of Coelho, 20 I. & N. Dec. 464, 473 The Board s denial of a motion to remand and 3 reopen is reviewed for abuse of discretion. See Hussain v. Gonzales, 477 F.3d 153, 155 (4th Cir. 2007). We also recognize three independent grounds on which a motion to reopen removal proceedings may be denied: (1) the alien has not established a prima facie case for the underlying substantive relief sought; (2) the alien has not introduced previously unavailable, material evidence; and (3) where relief is discretionary, the alien would discretionary grant of relief. not be entitled to the Onyeme, 146 F.3d at 234 (citing INS v. Abudu, 485 U.S. 94, 104-05 (1988)). We will reverse the denial it of a motion to reopen only irrational, or contrary to law. if is arbitrary, Mosere v. Mukasey, 552 F.3d 397, 400 (4th Cir. 2009) (internal quotation marks omitted). We conclude that discretion. Ferman did previously unavailable. the Board not show Nor did that he did the show not new that abuse evidence the its was evidence established a prima facie case for cancellation of removal. Accordingly, we dismiss in part and deny in part the petition for review. facts and materials legal before We dispense with oral argument because the contentions are adequately the and argument court presented would not in the aid the decisional process. PETITION DISMISSED IN PART; DENIED IN PART 4
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