10-2513-ag
Barry v. Holder
BIA
Nelson, IJ
A094 816 511
A094 816 512
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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 9th day of September, two thousand eleven.
5
6 PRESENT:
7 RALPH K. WINTER,
8 JOSÉ A. CABRANES,
9 ROBERT D. SACK,
10 Circuit Judges.
11 ______________________________________
12 AISSATOU BARRY, ALSO KNOWN AS NENE
13 AISSATOU BARRY; ELHADJ MAMADOU BHOYE
14 BARRY,
15 Petitioners,
16
17 v. 10-2513-ag
18 NAC
19 ERIC H. HOLDER, JR.,
20 UNITED STATES ATTORNEY GENERAL,
21 Respondent.
22 ______________________________________
23
24 FOR PETITIONERS: Sandra P. Nichols, New York, New
25 York.
26
27 FOR RESPONDENT: Tony West, Assistant Attorney
28 General; Shelley R. Goad, Assistant
29 Director; Dalin R. Holyoak, Trial
30 Attorney, Office of Immigration
31 Litigation, United States Department
32 of Justice, 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 Aissatou Barry (“Barry”) and her son Elhadj Mamadou
6 Bhoye Barry, natives and citizens of Guinea, seek review of
7 a May 28, 2010, order of the BIA affirming the October 1,
8 2008, decision of Immigration Judge (“IJ”) Barbara A.
9 Nelson, pretermitting Barry’s application for asylum, which
10 included her son as a derivative beneficiary, granting Barry
11 withholding of removal, and ordering Elhadj Mamadou Bhoye
12 Barry removed to Guinea. In re Aissatou Barry, Elhadj
13 Mamadou Bhoye Barry Nos. A094 816 511/512 (B.I.A. May 28,
14 2010), aff’g Nos. A094 816 511/512 (Immig. Ct. N.Y. City
15 Oct. 1, 2008). We assume the parties’ familiarity with the
16 underlying facts and procedural history in this case.
17 Title 8, Section 1158(a)(3) of the United States Code
18 provides that no court shall have jurisdiction to review the
19 agency’s finding that an asylum application was untimely
20 under 8 U.S.C. § 1158(a)(2)(B), or its finding of neither
21 changed nor extraordinary circumstances excusing the
22 untimeliness under 8 U.S.C. § 1158(a)(2)(D). While the
23 courts retain jurisdiction, under 8 U.S.C. § 1252(a)(2)(D),
24 to review constitutional claims and “questions of law,”
2
1 Petitioners have challenged only the agency’s factual
2 determination that Barry failed to demonstrate changed or
3 extraordinary circumstances relating to her eligibility for
4 asylum. Accordingly, we dismiss the petition for review.
5 See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315,
6 329-331 (2d Cir. 2006) (explaining that a petitioner cannot
7 overcome the lack of a reviewable issue by using the
8 rhetoric of a constitutional claim or question of law to
9 disguise what is essentially a quarrel about fact-finding or
10 the exercise of discretion).
11 For the foregoing reason, the petition for review is
12 DISMISSED. As we have completed our review, any stay of
13 removal that the Court previously granted in this petition
14 is VACATED, and any pending motion for a stay of removal in
15 this petition is DISMISSED as moot. Any pending request for
16 oral argument in this petition is DENIED in accordance with
17 Federal Rule of Appellate Procedure 34(a)(2), and Second
18 Circuit Local Rule 34.1(b).
19 FOR THE COURT:
20 Catherine O’Hagan Wolfe, Clerk
21
22
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