Amarasinghe v. Barr

   18-3004
   Amarasinghe v. Barr
                                                                                 BIA
                                                                             Segal, IJ
                                                                         A088 833 135
                                                                         A093 444 459

                         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.

         At a stated term of the United States Court of Appeals for the Second
   Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
   Square, in the City of New York, on the 23rd day of October, two thousand
   twenty.

   PRESENT:
              ROBERT D. SACK,
              RICHARD J. SULLIVAN,
              STEVEN J. MENASHI,
                    Circuit Judges.
   _____________________________________

   PATHIRANAGE DON DARSHANA RU
   AMARASINGHE, SAROJA NILUKSHI
   KURUNERU,

                         Petitioners,

                 v.                                            18-3004
WILLIAM P. BARR, UNITED STATES
ATTORNEY GENERAL,

                 Respondent.
_____________________________________

FOR PETITIONERS:                  Pathiranage Don Darshana Ru Amarasinghe;
                                  Saroja Nilukshi Kuruneru, pro se, Staten Island,
                                  NY.

FOR RESPONDENT:                   Jeffrey Bossert Clark, Acting Assistant Attorney
                                  General; Nancy E. Friedman, Senior Litigation
                                  Counsel; Brooke Marie Maurer, Trial Attorney,
                                  Office of Immigration Litigation, United States
                                  Department of Justice, Washington, DC.

      UPON DUE CONSIDERATION of this petition for review of a decision of

the Board of Immigration Appeals (“BIA”), it is hereby ORDERED, ADJUDGED,

and DECREED that the petition for review is DISMISSED.

      Petitioners Pathiranage Don Darshana Ru Amarasinghe and Saroja Nilukshi

Kuruneru, natives and citizens of Sri Lanka, seek review of a BIA decision

affirming the Immigration Judge’s (“IJ”) denial of their application for cancellation

of removal.    In re Pathiranage Don Darshana Ru Amarasinghe, Saroja Nilukshi

Kuruneru, Nos. A088 833 135, A093 444 459 (B.I.A. Sept. 27, 2018), aff’g Nos. A088

833 135, A093 444 459 (Immig. Ct. N.Y. City Sept. 29, 2017). We assume the

parties’ familiarity with the underlying facts and procedural history.



                                         2
      We have reviewed the IJ’s decision as modified by the BIA and address only

the dispositive hardship determination. See Xue Hong Yang v. U.S. Dep’t of Justice,

426 F.3d 520, 522 (2d Cir. 2005). Noncitizens, such as Petitioners, who are not

permanent residents may have their removal cancelled if they meet presence and

character requirements and they “establish[] that removal would result in

exceptional and extremely unusual hardship to [their] spouse, parent, or child,

who is a citizen of the United States or an alien lawfully admitted for permanent

residence.” 8 U.S.C. § 1229b(b)(1). The hardship to a qualifying relative “must

be substantially beyond the ordinary hardship that would be expected when a

close family member leaves this country.” In re Monreal-Aguinaga, 23 I. & N. Dec.

56, 62 (BIA 2001) (internal quotation marks omitted). Our jurisdiction to review

the agency’s denial of cancellation of removal based on an applicant’s failure to

satisfy the hardship requirement is limited to constitutional claims and questions

of law. 8 U.S.C. § 1252(a)(2)(B), (D); Barco-Sandoval v. Gonzales, 516 F.3d 35, 39–40

(2d Cir. 2008). We review such claims de novo. Pierre v. Holder, 588 F.3d 767, 772

(2d Cir. 2009).

      We lack jurisdiction to review the BIA’s hardship determination because

Petitioners raise no constitutional claims or questions of law. Instead, Petitioners

“merely summarize[] [their] interpretation of the evidence and express [their]
                                         3
disagreement” with the agency’s findings. Arguello v. Lynch, 614 F. App’x 19, 20–

21 (2d Cir. 2015). Such “quarrel[s] about fact-finding or the exercise of discretion”

are insufficient to establish a colorable legal or constitutional claim. Xiao Ji Chen

v. U.S. Dep’t of Justice, 471 F.3d 315, 330 (2d Cir. 2006).

      In some cases, we have characterized factual errors as questions of law

where the agency “totally overlook[s]” or “seriously mischaracterize[s]” material

facts. Mendez v. Holder, 566 F.3d 316, 323 (2d Cir. 2009). The agency did not do

so in this case. The agency assumed the validity of Petitioners’ son’s asthma

diagnosis and medical records. But the agency was not required to explicitly

consider evidence of the number of asthma deaths in Sri Lanka because that

evidence was of limited relevance without comparative evidence showing that

Petitioners’ son would be unable to obtain treatment for his asthma in Sri Lanka

as has been done in the United States. See Zhi Yun Gao v. Mukasey, 508 F.3d 86, 87

(2d Cir. 2007) (“[T]he BIA need not expressly parse or refute on the record each

individual argument or piece of evidence offered by the petitioner as long as it has

given reasoned consideration to the petition, and made adequate findings.”

(internal quotation marks omitted)); Xiao Ji Chen, 471 F.3d at 336 n.17 (presuming

that the agency “has taken into account all of the evidence before [it], unless the

record compellingly suggests otherwise”).               The agency acknowledged
                                            4
Petitioners’ testimony that in Sri Lanka, their son may have to use different

medications and may only have access to a nebulizer in a medical setting rather

than at home, but concluded that Petitioners did not meet their burden of showing

that a difference in treatment established the requisite hardship.

      Accordingly, because Petitioners fail to raise a colorable constitutional claim

or question of law, the petition for review is DISMISSED. The motion to stay

removal pending resolution of the petition for review is DENIED as moot.

                                      FOR THE COURT:
                                      Catherine O’Hagan Wolfe,
                                      Clerk of Court




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