20-2449

Mbengue v. Garland

BIA

Vomacka, IJ

A093 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 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. 

1 At a stated term of the United States Court of Appeals for 

2 the Second Circuit, held at the Thurgood Marshall United States 

Courthouse, 40 Foley Square, in the City of New York, on the 19th 3

4 day of October, two thousand twenty-one.

5

6 PRESENT:

7 BARRINGTON D. PARKER,

8 SUSAN L. CARNEY,

9 RICHARD J. SULLIVAN,

10 Circuit Judges.

11 _____________________________________

12

13 FATOU MBENGUE,

14

15 Petitioner,

16

17 v. 20-2449

18

19 MERRICK B. GARLAND, UNITED STATES 

20 ATTORNEY GENERAL,

21

22 Respondent.

23 _____________________________________

24

25 FOR PETITIONER: Genet Getachew, Law Office of Genet 

26 Getachew, Brooklyn, NY.

27

28 FOR RESPONDENT: Brian Boynton, Acting Assistant 

29 Attorney General; Sabatino F. Leo, 

30 Assistant Director; Madeline Henley,

31 Trial Attorney, Office of 

32 Immigration Litigation, United 
2

1 States Department of Justice, 

2 Washington, DC.

3 UPON DUE CONSIDERATION of this petition for review of a Board 

4 of Immigration Appeals (“BIA”) decision, it is hereby ORDERED, 

5 ADJUDGED, AND DECREED that the petition for review is DISMISSED.

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

7 seeks review of the BIA’s 2020 decision affirming a 2018 decision 

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

9 cancellation of removal. In re Fatou Mbengue, No. A093 436 064 

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

11 City July 16, 2018). We assume the parties’ familiarity with the 

12 underlying facts and procedural history. 

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

14 the sake of completeness.” Wangchuck v. Dep’t of Homeland Sec., 

15 448 F.3d 524, 528 (2d Cir. 2006). For a nonpermanent resident 

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

17 relevant here, the applicant “establishes that removal would 

18 result in exceptional and extremely unusual hardship to” a 

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

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

21 determination is limited to constitutional claims and questions of 

22 law. Id. § 1252(a)(2)(B)(i), (D); Barco-Sandoval v. Gonzales, 516 

23 F.3d 35, 36, 38–40 (2d Cir. 2008). A question of law may arise 
3

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

2 mischaracterized” evidence, Mendez v. Holder, 566 F.3d 316, 323 

3 (2d Cir. 2009), or applied “a legally erroneous standard,” Barco4 Sandoval, 516 F.3d at 39. We dismiss the petition because Mbengue

5 has not raised a colorable constitutional claim or question of law 

6 sufficient to invoke our jurisdiction.

7 Establishing “exceptional and extremely unusual hardship” is 

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

9 relatives would suffer hardship that is substantially different 

10 from, or beyond, that which would normally be expected from the 

11 deportation of an alien with close family members here.” In re

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

13 In re Andazola-Rivas, 23 I. & N. Dec. 319, 322 (B.I.A. 2002)

14 (noting that exceptional and extremely unusual hardship is a “very 

15 high standard”). 

16 Mbengue argues that the IJ violated her right to due process 

17 by taking administrative notice of a UNICEF report on female 

18 genital mutilation (“FGM”) in Senegal, which the IJ used to 

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

20 were Mbengue removed to Senegal, without giving her an opportunity 

21 to rebut the report. We do not reach this issue because, as the 

22 Government points out, Mbengue did not exhaust this issue before 

23 the BIA. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104,
4

1 107 & n.1 (2d Cir. 2007). Moreover, were we to reach the issue, 

2 we would find no merit, as Mbengue does not rebut the IJ’s findings 

3 or explain how she was prejudiced by the consideration of more 

4 recent country conditions evidence. See Garcia-Villeda v. 

5 Mukasey, 531 F.3d 141, 149 (2d Cir. 2008). Specifically, Mbengue 

6 does not identify any facts asserted in the UNICEF report and 

7 relied upon by the IJ that she would rebut, and does not challenge 

8 the other bases for the IJ’s finding that Mbengue’s daughters were 

9 not likely to be subjected to FGM.

10 To the extent that Mbengue exhausted her remaining claims,

11 they do not raise colorable questions of law. She argues that the 

12 agency did not apply the correct legal standard requiring 

13 consideration of all hardship factors in the aggregate. We 

14 disagree. Both the IJ and the BIA referenced the correct standard,

15 the IJ discussed all of the hardships Mbengue asserted in her 

16 testimony and application, and the IJ concluded that, taken 

17 together, the evidence did not show “exceptional and extremely 

18 unusual hardship.” 8 U.S.C. § 1229b(b)(1). 

19 Mbengue further argues that the IJ overlooked relevant 

20 evidence, including evidence regarding infectious diseases and the 

21 unequal treatment of girls in Senegal. However, none of the 

22 purportedly overlooked evidence concerns the hardships she alleged

23 before the IJ—Mbengue’s fear that her daughters would be subject 
5

1 to FGM, her daughters’ asthma, and the lack of available employment

2 in Senegal. She did not argue before the IJ that her daughters 

3 were at risk of forced marriage or any of the other hardships she 

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

5 Court. See Prabhudial v. Holder, 780 F.3d 553, 555 (2d Cir. 2015) 

6 (“[T]he BIA may refuse to consider an issue that could have been, 

7 but was not, raised before an IJ.”). Accordingly, she has not 

8 raised a colorable claim that the IJ erred as a matter of law by 

9 not discussing this evidence in his decision. See Mendez, 566 

10 F.3d at 323 (holding that an error of law may arise where facts 

11 relevant to the hardship determination “have been totally 

12 overlooked,” but that “the agency does not commit an error of law 

13 every time an item of evidence is not explicitly considered or is 

14 described with imperfect accuracy” (internal quotation marks 

15 omitted)); Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 

16 336 n.17 (2d Cir. 2006) (“[W]e presume that an IJ has taken into

17 account all of the evidence before him, unless the record 

18 compellingly suggests otherwise.”).

19 For the foregoing reasons, the petition for review is 

20 DISMISSED.

21 FOR THE COURT: 

22 Catherine O’Hagan Wolfe,

23 Clerk of Court