20

- 2449 Mbengue v. Garland BIA Vomacka , IJ A 0 93 436 064 

## 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 APP ENDIX 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** 1 **the Second Circuit, held a t the Thurgood Marshall United States**  2 **Courthouse, 40 Foley Square, in the City of New York, on the 1**  **9 t**  **h** 3 **day of O**  **c t**  **o b**  **e r**  **, two thousand twenty**

**- one.**  4 5 **PRESENT:** 6 **BARRINGTON D. PARKER ,**  7 **SUSAN L. CARNEY ,**  8 **RICHARD J. SULLIVAN ,**  9 **Circuit Judges.** 10

**_____________________________________** 11 12 **FATOU MBENGUE ,**  13 14 **Petitioner ,**  15 16
**v. 20** 

**- 2449**  17 18 **MERRICK B. GARLAND , UNITED STATES**  19 **ATTORNEY GENERAL,** 20 21 **Respondent**

**.** 22

**_____________________________________** 23 24 **FOR PETITIONER** : Genet Getachew , Law Office of Genet 25 Getachew, Brooklyn, NY

. 26 27 **FOR RESPONDENT:** Brian Boynton , Acting Assistant 28 Attorney General; Sabatino F. Leo , 29 Assistant Director ; Madeline Henley , 30 Trial Attorney, Office of 31 Immigration Litigation, United 32

### 2 States Department of Justice, 1 Washington, DC. 2
UPON DUE CONSIDERATION of this petition for review of a Board 3
of Immigration Appeals (“BIA”) decision, it is hereby ORDERED, 4

ADJUDGED, AND DECREED that the petition for review is DISMISSED

. 5

Petitioner Fatou Mbengue , a native and citizen of Senegal , 6

seeks review of the BIA’s 2020 decision affirming a 201 8 decision 7

of an Immigration Judge (“IJ”) denying h er application for 8

cancellation of removal

. In r e Fatou Mbengue , No. A093 436 064 9

(B.I.A. July 2 , 2020 ) , aff’g No. A093 436 064 (Immig. Ct. N.Y. 10
City July 1 6 , 201 8 )

. We assume the parties’ familiarity with the 11
underlying facts and procedural history. 12

We have reviewed both the BIA’s and the IJ’s decisions “for 13
the sake of completeness

. ” Wangchuck v. Dep’t of Homeland Sec. , 14
448 F.3d 524, 528 (2d Cir. 2006). For a nonpermanent resident 15

like Mbengue , the Attorney General may cancel removal where , as 16

relevant here , the applicant “ establishes that removal would 17
result in exceptional and extremely unusual hardship to ” a 18
qualifying relative

– here Mbengue ’s U.S. citizen daughters . 8 19

U.S.C. § 1229b(b)(1). Our jurisdiction to review this hardship 20

determination is limited to constitutional claims and questions of 21

law. I d. § 1252(a)(2)(B)(i), (D); Barco

- Sandoval v. Gonzales , 516 22
F.3d 35, 36 , 38

– 40 (2d Cir. 2008)

. A question of law may arise 23

### 3 where the agency “ overlooked ” or where it “seriously 1

mischaracterized ” evidence, Mendez v. Holder , 566 F.3d 316, 323 2
(2d Cir. 2009), or applied “a legally erroneous standard,” Barco

3

Sandoval , 516 F.3d at 39. We dismiss the petition because Mbengue 4

has not raised a colorable constitutional claim or question of law 5
sufficient to invoke our jurisdiction. 6
Establishing “exceptional and extremely unusual h ardship ” is 7

a heavy burden, requiring the applicant to show that “qualifying 8

relative s would suffer hardship that is substantia lly different 9
from, or beyond, that which would normally be expected from the 10
deportation of an alien with close family members here .” In re 11

Monreal

- Aguinaga , 23 I. & N. Dec. 56, 65 (B.I.A. 2001); see also 12

In re Andazola

- Rivas , 23 I. & N. Dec. 319, 322 (B.I.A. 2002) 13
(noting that exceptional and extremely unusual hardship is a “very 14
high standard”)

. 15
Mbengue argues th at the IJ violated her right to due process 16
by taking administrative notice of a UNICEF report on female 17
genital mutilation (“FGM”) in Sene gal , which the IJ used to 18

determine that Mbengue’s daughters would not be subject to hardship 19

were Mbengue removed to Senegal, without giving her an opportunity 20
to rebut the report. We do not reach this issue because, as the 21
Government points out, Mbengue did not exhaust this issue before 22

the BIA

. See Lin Zhong v. U.S. Dep’t of Justice , 480 F.3d 104, 23

### 4 107 & n.1 (2d Cir. 2007)

. Moreover, were we to reach the issue, 1
we would find no merit, as Mbengue does not rebut the IJ’s findings 2
or explain how she was prejudiced by the consideration of more 3
recent country conditions evidence

. See Garcia

- Villeda v. 4
Mukasey , 531 F.3d 141, 149 (2d Cir. 2008)

. Specifically, Mbengue 5

does not identify any facts asserted in the UNICEF report and 6
relied upon by the IJ that she would rebut , and does not challenge 7
the other bases for the IJ’s finding that Mbengue’s daughters were 8
not likely to be subjected to FGM

. 9

To the extent that Mbengue exhausted her remaining claims , 10
they do not raise colorable questions of law . She argues that the 11

agency did not apply the correct legal standard requiring 12
consideration of all hardship factors in the aggregate. We 13
disagree. B oth the IJ and the BIA ref erenced the correct standard , 14

the IJ discussed all of the hardship s Mbengue asserted in her 15
testimony and application , and the IJ concluded that , taken 16
together, the evidence did not show “exceptional and extremely 17
unusual hardship.” 8 U.S.C. § 1229b(b)(1). 18
Mbengue further argues that the IJ overlooked relevant 19

evidence , including evidence regarding infectious diseases and the 20
unequal treatment o f girls in Senegal . However, none of the 21
purportedly overlooked evidence concerns the hardships she alleged 22

before the IJ

— Mbengue’s fear that her daughters would be subject 23

### 5 to FGM , her daughters’ asthma, and the lack of available employment 1
in Senegal

. She did not argue before the IJ that her daughters 2
were at risk of forced marriage or any of the other hardships she 3

discussed for the first time in her briefs to the BIA and this 4

Court. See Prabhudial v. Holder , 780 F.3d 553, 555 (2d Cir. 2015) 5
(“[T]he BIA may refuse to consider an issue that could have been, 6
but was not, raised before an IJ.”). Accordingly, she has not 7
raised a colorable claim that the IJ erred as a matter of law by 8

not discussing this evidence in his decision

. See Mendez , 566 9
F.3d at 323 ( holding that an error of law may arise where facts 10
relevant to the hardship determination “ have been totally 11

overlooked , ” but that “the agency does not commit an error of law 12
every time an item of evidence is not explicitly considered or is 13
described with imperfect accuracy ” (internal quotation marks 14
omitted)); Xiao Ji Chen v. U.S. Dep’t of Justice , 471 F.3d 315, 15
336 n.17 (2d Cir. 2006) (“[W]e presume that an IJ has taken into 16

account all of the evidence before him , unless the record 17
compellingly suggests otherwise.”). 18
For the foregoing reasons, the petition for review is 19

DISMISSED

. 20

FOR THE COURT: 21 Catherine O’Hagan Wolfe, 22 Clerk of Court 23