12-4625

Afzal v. Holder

BIA

Nelson, IJ

A074 854 077

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 Thurgood Marshall United States

Courthouse, 40 Foley Square, in the City of New York, on the 29th 3

4 day of October, two thousand thirteen.

5

6 PRESENT:

7 RALPH K. WINTER,

8 DENNIS JACOBS,

9 CHESTER J. STRAUB,

10 Circuit Judges.

11 _______________________________________

12

13 CHOUDHRY AFZAL, AKA AFZAL CHOUDHRY, 

14 AKA MUHAMMED A. BAJWA, AKA A. BAJWA,

15 Petitioner, 

16

17 v. 12-4625

18

19 ERIC H. HOLDER, JR., UNITED STATES 

20 ATTORNEY GENERAL, 

21 Respondent.

22 _______________________________________

23

24 FOR PETITIONER: Alexander J. Segal, Grinberg & Segal,

25 P.L.L.C., New York, NY.

26

27 FOR RESPONDENT: Stuart F. Delery, Acting Assistant

28 Attorney General; Nancy E. Friedman,

29 Senior Litigation Counsel; Allen W.

30 Hausman, Senior Litigation Counsel,

31 Office of Immigration Litigation, United

32 States Department of Justice,

33 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 in part, and DENIED in part.

5 Petitioner Choudhry Afzal, a native and citizen of Pakistan,

6 seeks review of an October 23, 2012 order of the BIA, affirming

7 the January 10, 2011 decision of Immigration Judge (“IJ”) Barbara

8 A. Nelson, which denied his application for cancellation of

9 removal. In re Choudhry Afzal, No. A074 854 077 (B.I.A. Oct. 23,

10 2012), aff’g No. A074 854 077 (Immig. Ct. N.Y. City Jan. 10,

11 2011). We assume the parties’ familiarity with the underlying

12 facts and procedural history.

13 Under the circumstances of this case, we review the IJ’s

14 decision as modified by the BIA. See Xue Hong Yang v. U.S. Dep’t

15 of Justice, 426 F.3d 520, 522 (2d Cir. 2005). The applicable

16 standards of review are well-established. See 8 U.S.C. 

17 § 1252(b)(4)(B); see also Yanqin Weng v. Holder, 562 F.3d 510,

18 513 (2d Cir. 2009).

19 We lack jurisdiction to review the agency’s denial of an

20 application for cancellation of removal if the denial is based on

21 the alien’s failure to establish “exceptional and extremely

22 unusual hardship.” See 8 U.S.C. § 1252(a)(2)(B); see also

23 Barco-Sandoval v. Gonzales, 516 F.3d 35, 39 (2d Cir. 2008). 

24 While we retain jurisdiction to review constitutional claims and

25 questions of law, see 8 U.S.C. § 1252(a)(2)(D), Afzal’s

26 challenges in substance do no more than take issue with the

2
1 agency’s discretionary hardship determination. See Xiao Ji Chen

2 v. U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d Cir. 2006). 

3 Afzal’s argument--that the agency mischaracterized or failed to

4 consider his hardship evidence–-is unsupported by the record and

5 does not raise a question of law. See Mendez v. Holder, 566 F.3d

6 316, 322-23 (2d Cir. 2009); Barco-Sandoval, 516 F.3d at 42

7 (rejecting petitioner’s attempt to frame disagreement over the

8 agency’s exercise of discretion as a question of law). 

9 Afzal argues that the agency committed legal error by

10 failing to discuss explicitly the risk of kidnapping his children

11 would face in Pakistan. However, we presume that the agency “has

12 taken into account all of the evidence before [it], unless the

13 record compellingly suggests otherwise”. Xiao Ji Chen, 471 F.3d

14 at 337 n.17. In any event, the contention is too insubstantial

15 to invoke our jurisdiction given his testimony that his children

16 would remain with their mother in the U.S. if he is removed. See

17 Barco-Sandoval, 516 F.3d at 40. Afzal asserts that the agency

18 committed an error of law by finding that the mother of his

19 children could work outside the home, in light of his testimony

20 that she had problems with English. However, this assertion

21 merely challenges “the correctness of the [agency’s] factual

22 findings,” which we lack jurisdiction to review. Xiao Ji Chen,

23 471 F.3d at 329.

24 Afzal contends that the agency failed to consider his

25 renewed application for adjustment of status. However, the BIA

3
1 reasonably determined that Afzal’s counsel told the IJ that Afzal

2 was proceeding with only his application for cancellation of

3 removal. Afzal argues that counsel was expressing an intention

4 to apply for cancellation of removal in addition to adjustment of

5 status. However, the agency’s inference “is tethered to the

6 evidentiary record,” so “we will accord deference to the

7 finding.” See Siewe v. Gonzales, 480 F.3d 160, 168-69 (2d Cir.

8 2007). Afzal cites the IJ’s affirmative duty to advise aliens of

9 their potential eligibility for forms of relief from removal. 

10 See 8 C.F.R §1240.11(a)(2). The IJ here did discuss Afzal’s

11 eligibility for adjustment of status and stated that Afzal would

12 likely be ineligible for relief unless United States Citizenship

13 and Immigration Services reconsidered its finding that his prior

14 marriage was fraudulent. 

15 For the foregoing reasons, the petition for review is

16 DISMISSED for lack of jurisdiction in part, and DENIED in part. 

17 As we have completed our review, any stay of removal that the

18 Court previously granted in this petition is VACATED, and any

19 pending motion for a stay of removal in this petition is

20 DISMISSED as moot.

21 FOR THE COURT: 

22 Catherine O’Hagan Wolfe, Clerk

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