11-1190-ag

Andreenko v. Holder

BIA

Page, IJ

A070 529 130

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 8th 4 day of May, two thousand twelve.

5

6 PRESENT:

7 JOHN M. WALKER, JR.,

8 PETER W. HALL,

9 DENNY CHIN,

10 Circuit Judges. 

11 _____________________________________

12

13 PAVEL ANDREENKO,

14 Petitioner, 

15

16 v. 11-1190-ag

17 NAC 

18 ERIC H. HOLDER, JR., UNITED STATES

19 ATTORNEY GENERAL,

20 Respondent.

21 _____________________________________

22

23 FOR PETITIONER: Tatiana S. Aristova, Plainsboro, New

24 Jersey.

25

26 FOR RESPONDENT: Tony West, Assistant Attorney

27 General; Luis E. Perez, Senior

28 Litigation Counsel; Rachel Browning,

29 Trial Attorney, Office of
2

1 Immigration Litigation, United

2 States Department of Justice,

3 Washington, D.C.

4 UPON DUE CONSIDERATION of this petition for review of a

5 decision of the Board of Immigration Appeals (“BIA”), it is

6 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for

7 review is DENIED in part and DISMISSED in part.

8 Pavel Andreenko, a native of the former Soviet Union

9 and citizen of Russia, seeks review of a March 4, 2011,

10 order of the BIA affirming immigration judge (“IJ”) Alan

11 Page’s November 8, 2010, denial of relief under the

12 Convention Against Torture (“CAT”), and denial of

13 cancellation of removal under 8 U.S.C § 1229b(a). In re

14 Pavel Andreenko, No. A070 529 130 (B.I.A. Mar. 4, 2011),

15 aff’g No. A070 529 130 (Immig. Ct. N.Y. City Nov. 8, 2010). 

16 We assume the parties’ familiarity with the underlying facts

17 and procedural history of this case.

18 Under the circumstances of this case, we have reviewed

19 the IJ’s decision as modified by the BIA. See Chen v.

20 Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable

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

22 § 1252(b)(4)(B); see also Yanqin Weng v. Holder, 562 F.3d

23 510, 513 (2d Cir. 2009).
3

1 Because Andreenko is removable by reason of having

2 committed a criminal offense covered by 

3 8 U.S.C. § 1227(a)(2)(B) (relating to convictions for

4 controlled substances offenses), we lack jurisdiction to

5 review the agency’s factual findings and discretionary

6 determinations. However, we retain jurisdiction to review,

7 de novo, questions of law, 8 U.S.C. § 1252(a)(2)(D),

8 including determinations as to what evidence will suffice to

9 sustain an applicant’s burden of proof. See Noble v.

10 Keisler, 505 F.3d 73, 77 (2d Cir. 2007). 

11 The agency did not err in finding that Andreenko failed

12 to satisfy his burden of proof for CAT relief, as the

13 country conditions evidence he submitted, while indicating

14 that the Russian health care system is rife with corruption

15 and that many health care facilities do not provide

16 competent and adequate care, did not establish that any

17 substandard treatment he might receive at a mental health

18 facility would be inflicted by or with the acquiescence of

19 Russian officials with the specific intent to cause him

20 severe physical or mental pain or suffering, or that he will

21 more likely than not be individually and intentionally

22 singled out for torture by hospital officials because of his
4

1 mental health afflictions. See 8 C.F.R. § 1208.18(a)(1);

2 Pierre v. Gonzales, 502 F.3d 109, 121-22 (2d Cir. 2007)

3 (holding that beyond evidence of inhumane conditions, a

4 claimant can demonstrate a likelihood of torture only by

5 providing some evidence that the authorities act with the

6 specific intent to inflict severe physical or mental pain or

7 suffering because of certain characteristics or medical

8 conditions that claimant possesses).

9 With respect to Andreenko’s application for

10 cancellation of removal, we lack jurisdiction to consider

11 the reasonableness of the agency’s discretionary

12 determination that the factors favorable to a grant of

13 cancellation of removal were outweighed by adverse factors. 

14 See 8 U.S.C. § 1252(a)(2)(B)(I); see also De La Vega v.

15 Gonzales, 436 F.3d 141, 144-46 (2d Cir. 2006). Although we

16 retain jurisdiction to consider “constitutional claims or

17 questions of law,” 8 U.S.C. § 1252(a)(2)(D), Andreenko’s

18 argument that he was deprived of due process when the agency

19 failed to properly balance the favorable and adverse factors

20 is “essentially a quarrel about fact-finding or the

21 exercise of discretion” wrapped in the “rhetoric of a

22 constitutional claim or question of law.” See Barco-
5

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

2 (internal quotation omitted). 

3 Moreover, contrary to Andreenko’s argument that the IJ

4 applied an incorrect legal standard by concluding that “it

5 was not in the best interest of the U.S. for [him] to remain

6 in this country,” the record confirms that the IJ identified

7 and applied the proper legal framework. As required by

8 Matter of C-V-T-, 22 I&N Dec. 7, 11-12 (BIA 1998), and

9 Matter of Marin, 16 I&N Dec. 581, 584-85 (BIA 1978), the IJ

10 “‘balance[d] the adverse factors evidencing the alien’s

11 undesirability as a permanent resident with the social and

12 humane considerations presented in his (or her) behalf to

13 determine whether the granting of . . . relief appears in

14 the best interest of this country,’” Matter of C-V-T-, 22

15 I&N Dec. at 11 (quoting Matter of Marin, 16 I&N Dec. at 584-

16 85) (emphasis added), and “enunciated in his opinion” the

17 basis for his decision, Matter of Marin, 16 I&N Dec. at 585. 

18 Accordingly, the IJ’s weighing of the applicable favorable

19 and adverse factors to determine that granting Andreenko’s

20 application for cancellation of removal was not in the best

21 interest of the United States was in accordance with the

22 proper legal standard.

23
6

1 For the foregoing reasons, the petition for review is

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

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

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

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

6 Any pending request for oral argument in this petition is

7 DENIED in accordance with Federal Rule of Appellate

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

9 FOR THE COURT: 

10 Catherine O’Hagan Wolfe, Clerk

11

12