    16-3230
    Reina v. Sessions
                                                                                        BIA
                                                                                   Straus, IJ
                                                                               A073 535 464
                             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.

         At a stated term of the United States Court of Appeals for the
    Second Circuit, held at the Thurgood Marshall United States
    Courthouse, 40 Foley Square, in the City of New York, on the 3rd day
    of October, two thousand seventeen.

    PRESENT:
              DEBRA ANN LIVINGSTON,
              GERARD E. LYNCH,
                   Circuit Judges,
              JED S. RAKOFF,
                   District Judge.
    _____________________________________

    OSCAR A. REINA, AKA OSCAR REINA
    FLORES,
                   Petitioner,

                        v.                                           16-3230

    JEFFERSON B. SESSIONS III,
    UNITED STATES ATTORNEY GENERAL,
                   Respondent.
    _____________________________________

    FOR PETITIONER:                   ERIN I. O’NEIL-BAKER, Hartford Legal Group,
                                      LLC, Hartford, CT.

    FOR RESPONDENT:                   MATTHEW CONNELLY, Trial Attorney, Office of
                                      Immigration Litigation (Chad Readler,
                                      Acting Assistant Attorney General, Civil
                                      Division; Mary Jane Candaux, Assistant
                                      Director,       Office    of    Immigration


     Judge Jed S. Rakoff, of the United States District Court for the
    Southern District of New York, sitting by designation.
                                 Litigation; on the brief), United States
                                 Department of Justice, Washington, DC.

     UPON DUE CONSIDERATION of this petition for review of a Board

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

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

     Petitioner Oscar A. Reina, a native and citizen of El Salvador,

seeks review of an August 19, 2016, decision of the BIA affirming

a January 15, 2015, decision of an Immigration Judge (“IJ”) denying

special    rule        cancellation    of   removal    under    8    U.S.C.    §

1229b(b)(2)(A)(i).         In re Oscar A. Reina, No. A073 535 464 (B.I.A.

Aug. 19, 2016), aff’g No. A073 535 464 (Immig. Ct. Hartford Jan. 15,

2015).    We assume the parties’ familiarity with the underlying facts

and procedural history in this case.

     Under the circumstances of this case, we have reviewed the IJ’s

decision as supplemented and modified by the BIA.                   See Wala v.

Mukasey, 511 F.3d 102, 105 (2d Cir. 2007); Xue Hong Yang v. U.S. Dep’t

of Justice, 426 F.3d 520, 522 (2d Cir. 2005).         Because the BIA assumed

the marriage was bona fide, the only issue before us is the denial

of relief based on Reina’s failure to show that he was battered or

subjected to extreme cruelty.          Xue Hong Yang, 426 F.3d at 522.        Our

jurisdiction      to    review   the   agency’s   denial   of   special    rule

cancellation of removal is limited to constitutional claims and

questions of law.        8 U.S.C. § 1252(a)(2)(B), (D); Rosario v. Holder,

627 F.3d 58, 61 (2d Cir. 2010).

     Reina sought special rule cancellation as an abused former

spouse of a U.S. citizen.        To qualify for special rule cancellation,
                                        2
an alien must establish that he has been “battered or subjected to

extreme cruelty by a spouse” who is a U.S. citizen or lawful permanent

resident.      8 U.S.C. § 1229b(b)(2)(A)(i).       The agency’s denial of

special rule cancellation of removal for failure to establish battery

or   extreme    cruelty   is   generally   a   factual   and   discretionary

determination that we cannot review.           Rosario, 627 F.3d at 63-64.

A constitutional claim or question of law may arise if “the BIA

applies an incorrect law or legal standard, bases its decision on

a factfinding premised on an error of law, or reaches a conclusion

that lacks any rational justification.”          Id. at 63.    Additionally,

“[w]e determine our jurisdiction by looking at the underlying nature

of the BIA’s determination rather than any gloss offered by the

parties.” Rosario, 627 F.3d at 62 (emphasis in original).               “[A]

petitioner cannot us[e] the rhetoric of a . . . question of law to

disguise what is essentially a quarrel about fact-finding or the

exercise of discretion.” Barco-Sandoval v. Gonzales, 516 F.3d 35,

39 (2d Cir. 2008) (quoting Xiao Ji Chen v. U.S. Dep’t of Justice,

471 F.3d 315, 330 (2d Cir. 2006) (internal quotation marks omitted)

(second alteration in original)).

      We conclude that we do not have subject matter jurisdiction to

review Reina’s petition.

      Reina first argues that the BIA applied the wrong legal standard

by requiring him to demonstrate that he was subject to battery and

extreme cruelty.      However, the BIA cited the correct statutory

provision regarding the burden of proof, “[s]ection 240(c)(4)(B) of


                                     3
the [Immigration and Nationality] Act,” which is codified at 8 U.S.C.

§ 1229a(c)(4)(B). Reina contends that the BIA incorrectly relied on

case law addressing the corroboration standard for asylum in reaching

its decision. That is untrue: the BIA cited but did not rely on asylum

cases in which it had found testimony was too vague to be credible.

At any rate, to the extent Reina argues that citing cases about the

sufficiency of corroboration from asylum cases in applying the

statute governing whether an applicant has sustained his burden of

proof in a cancellation of removal case, 8 U.S.C. § 1229a(c)(4)(b),

the argument is not colorable, as the comparable statute governing

asylum   cases,   8   U.S.C.   §   1158(b)(1)(B)(ii),   is   functionally

identical. Because “the BIA applied the correct law and the correct

legal standard,” Rosario, 627 F.3d at 64 (setting the substantive

standard for special rule cancellation of removal for battered

spouses) (internal citations omitted), we do not have subject matter

jurisdiction to hear this challenge to the BIA’s decision.

      Second, Reina argues that the BIA’s decision was “erroneous as

a matter of law” and lacked “rational justification” because the

agency seriously mischaracterized his testimony and overlooked parts

of it. Pet’r Br. at 18–19; see Mendez v. Holder, 566 F.3d 316, 323

(2d   Cir.   2009).        But     rather   than   cite      any   serious

mischaracterizations or omissions, Reina just repeats the same

allegations that the BIA and IJ found too vague to meet his statutory

burden. This is an objection to the BIA and IJ’s factual findings

and we cannot entertain it.


                                     4
     We have considered all of Appellant’s remaining arguments and

find them to be without merit.       Accordingly, for the foregoing

reasons, the petition for review is DISMISSED.

                              FOR THE COURT:
                              Catherine O’Hagan Wolfe, Clerk




                                 5
