Barry v. Holder

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 3