    12-3776
    Lusanga v.Lynch
                                                                                   BIA
                                                                              Straus, IJ
                                                                          A072 484 945

                       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
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IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
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         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 30th day of December, two thousand fifteen.

    PRESENT:
             JON O. NEWMAN,
             RALPH K. WINTER,
             PETER W. HALL,
                  Circuit Judges.
    _____________________________________

    LUSANGA GRACIAS LUSANGA, AKA EFILE
    MASANKA, AKA LUSANGA LUSANGA GRACIA,
             Petitioner,

                      v.                                   12-3776
                                                           NAC
    LORETTA E. LYNCH, UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _______________________________________

    FOR PETITIONER:               Elyssa N. Williams, Formica
                                  Williams, P.C., New Haven, CT.

    FOR RESPONDENT:               Stuart F. Delery, Assistant Attorney
                                  General; Nancy E. Friedman, Senior
                                  Litigation Counsel; Brooke M.
                       Maurer, Trial Attorney, Office of
                       Immigration Litigation, United
                       States Department of Justice,
                       Washington, D.C.

    UPON DUE CONSIDERATION of this petition for review of a

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

hereby ORDERED, ADJUDGED, AND DECREED that the petition for

review is DENIED.

    Lusanga Gracias Lusanga, a native and citizen of the

Democratic Republic of the Congo (“DRC”), seeks review of a

January 13, 2012, decision of the BIA (reissued on August 31,

2012) affirming an Immigration Judge’s (“IJ”) September 1,

2011, denial of adjustment of status and deferral of removal

under the Convention Against Torture (“CAT”).    In re Lusanga

Gracias Lusanga, No. A072 484 945 (B.I.A. Jan. 13, 2012),

aff’g No. A072 484 945 (Immig. Ct. Hartford Sept. 1, 2011).

We assume the parties’ familiarity with the underlying facts

and procedural history of this case.

    Under the circumstances of this case, we have reviewed

both the BIA’s and IJ’s decisions.   See Zaman v. Mukasey, 514

F.3d 233, 237 (2d Cir. 2008) (per curiam).      The applicable

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

§ 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d

Cir. 2009).

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    Our jurisdiction is limited to review of constitutional

claims    and   questions     of   law.       8   U.S.C.    §   1252(a)(2)(B)

(limiting review of denials of discretionary waivers), (C)

(precluding     review   of    final       orders   of    removal    based   on

aggravated felony convictions), (D) (restoring jurisdiction

over “constitutional claims or questions of law”); Ortiz-

Franco v. Holder, 782 F.3d 81, 85 (2d Cir. 2015) (holding that

jurisdictional bar of § 1252(a)(2)(C) applies equally to CAT

claims).

    Here, we lack jurisdiction to review the denial of a

waiver     because   Lusanga       does      not    raise       a   reviewable

constitutional claim or question of law.                 Lusanga argues only

that the IJ failed to consider all of the positive factors

supporting a grant of the waiver-–including his fear of

returning to the DRC and the hardship of living in a country

that has problems with violence and human rights abuses. This

argument does not present a constitutional claim or question

of law.    The record shows that the IJ weighed all the factors.

Accordingly, this challenge to the weight of the evidence

merely “disputes the correctness of an IJ’s fact-finding or

the wisdom of his exercise of discretion.”                  Xiao Ji Chen v.

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


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    Lusanga’s challenges to the denial of CAT relief fail,

either on the merits, or as factual challenges for which there

is no jurisdiction.   First, Lusanga raises a question of law

as to whether the agency erred by requiring him to show he

would be tortured based on a protected ground, a requirement

only relevant to asylum and withholding of removal.   However,

contrary to Lusanga’s argument, the agency did not require him

to make such a showing; rather, the IJ applied the correct

standard and determined “there’s simply not enough evidence

based on this record that the threat of torture rises to the

level of more likely than not.”      Certified Administrative

Record at 47; see 8 C.F.R. §§ 1208.16(c)(2), 1208.17(a);

Khouzam v. Ashcroft, 361 F.3d 161, 168 (2d Cir. 2004).

    The   agency’s    discussion    of   Lusanga’s    political

affiliations was the product of Lusanga’s argument that his

family was forced to flee the DRC in the early 1990s because

of his father’s political allegiances.    Thus, the IJ simply

analyzed whether Lusanga would be tortured on the basis he

suggested, his father’s former political ties.   See Islami v.

Gonzales, 412 F.3d 391, 396 (2d Cir. 2005), overruled in part

on other grounds by Shi Liang Lin v. U.S. Dep’t of Justice,

494 F.3d 296, 305 (2d Cir. 2007).



                              4
    Second, Lusanga argues that the IJ misconstrued and

misinterpreted the evidence in concluding that there was

insufficient evidence of torture in the DRC.                As this is

neither a question of law nor a constitutional claim, we lack

jurisdiction to consider it.      Ortiz-Franco, 782 F.3d at 86.

    Lusanga also seems to raise, indirectly, a claim that the

IJ prevented him from testifying fully based on two incidents

during the merits hearing.    This is essentially a due process

claim.   See Burger v. Gonzales, 498 F.3d 131, 134 (2d Cir.

2007).   Lusanga cites one incident where the IJ asked him

whether the Mobutu government was overthrown in 1997; Lusanga

answered that it was, and as he began to further state his

claims, the IJ cut him off and told him to limit himself to

the question.   The second incident involved testimony about

his fear of returning to the DRC, during which he began to

identify his country conditions evidence. The IJ interrupted,

stating he would read the documents.           The IJ then provided a

summary of what he understood Lusanga’s fear to be premised

upon, and Lusanga confirmed that the IJ correctly described

the basis for his fear.     These two isolated incidents do not

amount to a due process violation.             Other portions of the

testimony,   specifically   his       direct   testimony,   show   that

Lusanga had sufficient opportunity to develop his claims.
                                  5
    For the foregoing reasons, the petition for review is

DENIED.    As we have completed our review, any stay of removal

that the Court previously granted in this petition is VACATED,

and any pending motion for a stay of removal in this petition

is DISMISSED as moot.    Any pending request for oral argument

in this petition is DENIED in accordance with Federal Rule of

Appellate Procedure 34(a)(2), and Second Circuit Local Rule

34.1(b).

                              FOR THE COURT:
                              Catherine O’Hagan Wolfe, Clerk




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