11-2050
Yang v. Holder
BIA
Nelson, IJ
A088 958 238
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 for
2 the Second Circuit, held at the Daniel Patrick Moynihan United
3 States Courthouse, 500 Pearl Street, in the City of New York, on
4 the 10th day of September, two thousand twelve.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 GUIDO CALABRESI,
10 SUSAN L. CARNEY,
11 Circuit Judges.
12 _____________________________________
13
14 HENGWEN YANG, AKA HENG WEN YANG,
15 Petitioner,
16
17 v. 11-2050
18
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _______________________________________
23
24 FOR PETITIONER: Galab B. Dhungana, New York, N.Y.
25
26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
27 Attorney General; Richard M. Evans,
28 Assistant Director; Jeffrey J.
29 Bernstein, Trial Attorney, Office of
30 Immigration Litigation, United States
31 Department 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 is
4 DISMISSED for lack of jurisdiction.
5 Petitioner Hengwen Yang, a native and citizen of China,
6 seeks review of an April 26, 2011, order of the BIA, affirming
7 the March 29, 2010, decision of Immigration Judge (“IJ”) Barbara
8 A. Nelson, which denied his applications for adjustment of status
9 and cancellation of removal. In re Hengwen Yang, No. A088 958
10 238 (B.I.A. Apr. 26, 2011), aff’g No. A088 958 238 (Immig. Ct.
11 N.Y. City Mar. 29, 2010). We assume the parties’ familiarity
12 with the underlying facts and procedural history in this case.
13 Under the circumstances of this case, we have reviewed the
14 decision of the IJ as supplemented by the BIA. See Yan Chen v.
15 Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable
16 standards of review are well-established. See 8 U.S.C.
17 § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d
18 Cir. 2009).
19 We lack jurisdiction to review the agency’s denial of an
20 application for cancellation of removal based on the alien’s
21 failure to establish “exceptional and extremely unusual
22 hardship.” See Barco-Sandoval v. Gonzales, 516 F.3d 35, 39 (2d
23 Cir. 2008); see also 8 U.S.C. § 1252(a)(2)(B). While we retain
24 jurisdiction to review constitutional claims and questions of
25 law, see 8 U.S.C. § 1252(a)(2)(D), Yang’s challenge raises
2
1 neither; it takes issue with the agency’s discretionary hardship
2 determination. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471
3 F.3d 315, 329-30 (2d Cir. 2006).
4 Yang’s argument that the agency failed to consider his
5 hardship evidence is cast in terms of a question of law, but his
6 contentions are unsupported by the record. For example, while
7 Yang argues that the agency failed to consider his status as his
8 family’s sole means of support, the agency noted that his U.S.-
9 citizen wife (who was not employed) was physically able to
10 maintain employment and that the record did not establish that
11 she would be unable to adequately provide for the family.
12 Similarly, although Yang asserts that the agency ignored the
13 ten-year separation from his family that may result from his
14 removal, see 8 U.S.C. § 1182(a)(9)(A)(ii)(II), the IJ noted that
15 Yang could seek a waiver. Further, although Yang contends that
16 the agency failed to consider the hardship that his U.S.-citizen
17 children would suffer adjusting to life in China, Yang
18 represented that his wife and children would not accompany him to
19 China if he were removed.
20 For the foregoing reasons, the petition for review is
21 DISMISSED. As we have completed our review, any stay of removal
22
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24
3
1 that the Court previously granted in this petition is VACATED,
2 and any pending motion for a stay of removal in this petition is
3 DISMISSED as moot.
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5
6 FOR THE COURT:
7 Catherine O’Hagan Wolfe, Clerk
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