10-2741-agBIA 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 GOVER** **NED 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. At a stated term of the United States Court of Appeals**  1 **for the Second Circuit, held at the Daniel Patrick Moynihan** 2 **United States Courthouse, 500 Pearl Street, in the City of** 3 **New York, on the 16 th** **day of June, two thousand eleven.** 4 5 **PRESENT:** 6 **ROGER J. MINER,** 7 **GUIDO CALABRESI,** 8 **RAYMOND J. LOHIER, JR.,** 9 Circuit Judges**.** 10

**_________________________________________** 11 12 **SANDRA MARIA MENDOZA,** 13 Petitioner**,** 14 15 **v. 10-2741-ag** 16 **NAC** 17 **ERIC H. HOLDER, JR., UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent **.** 20

**_______________________________________** 21 22 **FOR PETITIONER: Glenn L. Formica, New Haven,** 23 **Connecticut.** 24 25 **FOR RESPONDENT: Tony West, Assistant Attorney** 26 **General; Linda Wernery, Assistant** 27 **Director; James E. Grimes, Senior** 28 **Litigation Counsel, Office of** 29 **Immigration Litigation, United** 30 **States Department of Justice,** 31 **Washington, D.C.** 322 UPON DUE CONSIDERATION of this petition for review of a 1 Board of Immigration Appeals (“BIA”) decision, it is hereby 2 ORDERED, ADJUDGED, AND DECREED that the petition for review 3 is DENIED in part and DISMISSED in part. 4 Sandra Maria Mendoza, a native and citizen of 5 Guatemala, seeks review of a June 10, 2010 order of the BIA 6 affirming the July 25, 2008 decision of Immigration Judge 7 (“IJ”) Michael W. Straus, which denied her applications for 8 asylum, withholding of removal, relief under the Convention 9 Against Torture (“CAT”), and cancellation of removal. In re 10 Sandra Maria Mendoza , No. A072 563 788 (B.I.A. June 10, 11 2010),aff’gNo. A072 563 788 (Immig. Ct. Hartford, July 25, 12 2008). We assume the parties’ familiarity with the 13 underlying facts and procedural history in this case. 14 15 Under the circumstances of this case, we have reviewed 16 the IJ’s decision as modified by the BIA decision. See Xue 17 Hong Yang v. U.S. Dep’t of Justice , 426 F.3d 520, 522 (2d 18 Cir. 2005). The applicable standards of review are well19 established. See8 U.S.C. § 1252(b)(4)(B)(2006); Yanqin 20 Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009). 21

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233 **I. Asylum, Withholding of Removal and CAT Relief** 1 The regulations require IJs to exercise the Attorney 2 General’s discretion to deny asylum to applicants who 3 establish eligibility based solely on past persecution when 4 the government establishes a fundamental change in 5 circumstances sufficient to rebut the presumption of well6 founded fear. 8 C.F.R. § 1208.13(b)(1)(2011). Here, the 7 agency noted that the civil war in Guatemala between the 8 government and the guerillas ended over ten years ago. 9 Accordingly, substantial evidence supports the agency’s 10 finding that there was a fundamental change in circumstances 11 sufficient to rebut the presumption of a well-founded fear 12 of persecution by Guatemalan guerillas. Moreover, after 13 Mendoza was shot, she moved from her hometown of Jutiapa, 14 Guatemala, to Guatemala City, where she lived for five years 15 without incident. As a result, even if Mendoza had a well16 founded fear of future persecution if she were to return to 17 Guatemala, the record shows that she could avoid persecution 18 by relocating to another part of the country. See8 C.F.R. 19 § 208.13(b)(2)(ii)(2011). Consequently, substantial 20 evidence supports the agency’s finding that Mendoza does not 21 have a well-founded fear of persecution should she return to 224 Guatemala. Furthermore, although Mendoza was shot in the 1 leg, because the injuries she suffered did not limit her 2 ability to earn a living or affect her psychologically to 3 any great extent, the agency did not abuse its discretion in 4 determining that she did not merit a humanitarian grant of 5 asylum. See 8 U.S.C. § 1252(b)(4)(D); Hoxhallari v. 6 Gonzales,468 F.3d 179, 184 (2d Cir. 2006) (per 7 curiam)(upholding the denial of humanitarian asylum to a 8 supporter of the Democratic Party in Albania who had been 9 beaten and harassed on six occasions);Wu Zheng Huang v. 10

INS, 436 F.3d 89, 96 (2d Cir. 2006). 11 Although Mendoza argues that she will likely be 12 tortured if removed to Guatemala, she has presented no 13 evidence other than general assertions of violent gang 14 activity, which are insufficient to demonstrate her 15 eligibility for CAT relief. See8 C.F.R. §§ 1208.16(c)(2), 16 1208.18(a)(2011); Mu Xiang Lin v. U.S. Dep’t of Justice , 432 17 F.3d 156, 160 (2d Cir. 2005) (concluding that particularized 18 evidence showing the likelihood of torture is necessary to 19 establish eligibility for CAT protection). 20

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225 **II. Cancellation of Removal** 1 Mendoza’s petition for review of the agency’s denial of 2 her application for cancellation of removal simply amounts to 3 a challenge to the agency’s factual findings regarding 4 “exceptional and extremely unusual hardship,” over which this 5 court lacks jurisdiction. See 8 U.S.C.§§ 1229b(b)(1), 6 1252(a)(2)(B); see also Barco-Sandoval v. Gonzales , 516 F.3d 7 35, 39 (2d Cir. 2008). Although pursuant to the REAL ID Act 8 we retain jurisdiction to review constitutional claims and 9 questions of law, we “lack jurisdiction to review any legal 10 argument that is so insubstantial and frivolous as to be 11 inadequate to invoke federal-question jurisdiction.” See 8 12 U.S.C. § 1252(a)(2)(D)(2006); Barco-Sandoval , 516 F.3d at 40 13 (citations omitted). Mendoza argues that agency erred as a 14 matter of law by applying the wrong legal standard when 15 considering whether her son would experience the requisite 16 hardship if she were removed to Guatemala, because the IJ only 17 considered the standard as set out in Matter of Monreal18 Aguinaga , 23 I. & N. Dec. 56 (B.I.A. 2001). This argument is 19 specifically foreclosed by Barco-Sandovalas being “so 20 insubstantial and frivolous as to be inadequate to invoke 21 federal-question jurisdiction.” 516 F.3d at 40. Mendoza does 22 not raise a colorable question of law, and, accordingly, we 236 dismiss the petition for lack of jurisdiction as to the 1 challenge to the denial of cancellation. See 8 U.S.C. 2 § 1252(a)(2)(B)(2006); Barco-Sandoval , 516 F.3d at 39. 3 For the foregoing reasons, the petition for review is 4 DENIED in part and DISMISSED in part. As we have completed 5 our review, any stay of removal that the Court previously 6 granted in this petition is VACATED, and any pending motion 7 for a stay of removal in this petition is DISMISSED as moot. 8 Any pending request for oral argument in this petition is 9 DENIED in accordance with Federal Rule of Appellate Procedure 10 34(a)(2), and Second Circuit Local Rule 34.1(b). 11

FOR THE COURT: 12 Catherine O’Hagan Wolfe, Clerk 13 14