10-2741-ag BIA

Mendoza v. Holder Straus, IJ

A072 563 788

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

2 for the Second Circuit, held at the Daniel Patrick Moynihan

3 United States Courthouse, 500 Pearl Street, in the City of

New York, on the 16th 4 day of June, two thousand eleven.

5

6 PRESENT:

7 ROGER J. MINER,

8 GUIDO CALABRESI,

9 RAYMOND J. LOHIER, JR.,

10 Circuit Judges.

11 _________________________________________

12

13 SANDRA MARIA MENDOZA,

14 Petitioner, 

15

16 v. 10-2741-ag

17 NAC 

18 ERIC H. HOLDER, JR., UNITED STATES

19 ATTORNEY GENERAL,

20 Respondent.

21 _______________________________________

22

23 FOR PETITIONER: Glenn L. Formica, New Haven,

24 Connecticut.

25

26 FOR RESPONDENT: Tony West, Assistant Attorney

27 General; Linda Wernery, Assistant

28 Director; James E. Grimes, Senior

29 Litigation Counsel, Office of

30 Immigration Litigation, United

31 States Department of Justice,

32 Washington, D.C.
2

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

4 is DENIED in part and DISMISSED in part.

5 Sandra Maria Mendoza, a native and citizen of

6 Guatemala, seeks review of a June 10, 2010 order of the BIA

7 affirming the July 25, 2008 decision of Immigration Judge

8 (“IJ”) Michael W. Straus, which denied her applications for

9 asylum, withholding of removal, relief under the Convention

10 Against Torture (“CAT”), and cancellation of removal. In re

11 Sandra Maria Mendoza, No. A072 563 788 (B.I.A. June 10,

12 2010), aff’g No. A072 563 788 (Immig. Ct. Hartford, July 25,

13 2008). We assume the parties’ familiarity with the

14 underlying facts and procedural history in this case.

15

16 Under the circumstances of this case, we have reviewed

17 the IJ’s decision as modified by the BIA decision. See Xue

18 Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d

19 Cir. 2005). The applicable standards of review are well20 established. See 8 U.S.C. § 1252(b)(4)(B)(2006); Yanqin

21 Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009). 

22

23
3

1 I. Asylum, Withholding of Removal and CAT Relief

2 The regulations require IJs to exercise the Attorney

3 General’s discretion to deny asylum to applicants who

4 establish eligibility based solely on past persecution when

5 the government establishes a fundamental change in

6 circumstances sufficient to rebut the presumption of well7 founded fear. 8 C.F.R. § 1208.13(b)(1)(2011). Here, the

8 agency noted that the civil war in Guatemala between the

9 government and the guerillas ended over ten years ago. 

10 Accordingly, substantial evidence supports the agency’s

11 finding that there was a fundamental change in circumstances

12 sufficient to rebut the presumption of a well-founded fear

13 of persecution by Guatemalan guerillas. Moreover, after

14 Mendoza was shot, she moved from her hometown of Jutiapa,

15 Guatemala, to Guatemala City, where she lived for five years

16 without incident. As a result, even if Mendoza had a well17 founded fear of future persecution if she were to return to

18 Guatemala, the record shows that she could avoid persecution

19 by relocating to another part of the country. See 8 C.F.R.

20 § 208.13(b)(2)(ii)(2011). Consequently, substantial

21 evidence supports the agency’s finding that Mendoza does not

22 have a well-founded fear of persecution should she return to
4

1 Guatemala. Furthermore, although Mendoza was shot in the

2 leg, because the injuries she suffered did not limit her

3 ability to earn a living or affect her psychologically to

4 any great extent, the agency did not abuse its discretion in

5 determining that she did not merit a humanitarian grant of

6 asylum. See 8 U.S.C. § 1252(b)(4)(D); Hoxhallari v.

7 Gonzales, 468 F.3d 179, 184 (2d Cir. 2006) (per

8 curiam)(upholding the denial of humanitarian asylum to a

9 supporter of the Democratic Party in Albania who had been

10 beaten and harassed on six occasions); Wu Zheng Huang v.

11 INS, 436 F.3d 89, 96 (2d Cir. 2006). 

12 Although Mendoza argues that she will likely be

13 tortured if removed to Guatemala, she has presented no

14 evidence other than general assertions of violent gang

15 activity, which are insufficient to demonstrate her

16 eligibility for CAT relief. See 8 C.F.R. §§ 1208.16(c)(2),

17 1208.18(a)(2011); Mu Xiang Lin v. U.S. Dep’t of Justice, 432

18 F.3d 156, 160 (2d Cir. 2005) (concluding that particularized

19 evidence showing the likelihood of torture is necessary to

20 establish eligibility for CAT protection). 

21

22
5

1 II. Cancellation of Removal

2 Mendoza’s petition for review of the agency’s denial of

3 her application for cancellation of removal simply amounts to

4 a challenge to the agency’s factual findings regarding

5 “exceptional and extremely unusual hardship,” over which this

6 court lacks jurisdiction. See 8 U.S.C.§§ 1229b(b)(1),

7 1252(a)(2)(B); see also Barco-Sandoval v. Gonzales, 516 F.3d

8 35, 39 (2d Cir. 2008). Although pursuant to the REAL ID Act

9 we retain jurisdiction to review constitutional claims and

10 questions of law, we “lack jurisdiction to review any legal

11 argument that is so insubstantial and frivolous as to be

12 inadequate to invoke federal-question jurisdiction.” See 8

13 U.S.C. § 1252(a)(2)(D)(2006); Barco-Sandoval, 516 F.3d at 40

14 (citations omitted). Mendoza argues that agency erred as a

15 matter of law by applying the wrong legal standard when

16 considering whether her son would experience the requisite

17 hardship if she were removed to Guatemala, because the IJ only

18 considered the standard as set out in Matter of Monreal19 Aguinaga, 23 I. & N. Dec. 56 (B.I.A. 2001). This argument is

20 specifically foreclosed by Barco-Sandoval as being “so

21 insubstantial and frivolous as to be inadequate to invoke

22 federal-question jurisdiction.” 516 F.3d at 40. Mendoza does

23 not raise a colorable question of law, and, accordingly, we
6

1 dismiss the petition for lack of jurisdiction as to the

2 challenge to the denial of cancellation. See 8 U.S.C.

3 § 1252(a)(2)(B)(2006); Barco-Sandoval, 516 F.3d at 39. 

4 For the foregoing reasons, the petition for review is

5 DENIED in part and DISMISSED in part. As we have completed

6 our review, any stay of removal that the Court previously

7 granted in this petition is VACATED, and any pending motion

8 for a stay of removal in this petition is DISMISSED as moot.

9 Any pending request for oral argument in this petition is

10 DENIED in accordance with Federal Rule of Appellate Procedure

11 34(a)(2), and Second Circuit Local Rule 34.1(b).

12 FOR THE COURT: 

13 Catherine O’Hagan Wolfe, Clerk

14