         11-2050
         Yang v. Holder
                                                                                       BIA
                                                                                  Nelson, IJ
                                                                               A088 958 238
                               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 for
 2       the Second Circuit, held at the Daniel Patrick Moynihan United
 3       States Courthouse, 500 Pearl Street, in the City of New York, on
 4       the 10th day of September, two thousand twelve.
 5
 6       PRESENT:
 7                 DENNIS JACOBS,
 8                      Chief Judge,
 9                 GUIDO CALABRESI,
10                 SUSAN L. CARNEY,
11                      Circuit Judges.
12       _____________________________________
13
14       HENGWEN YANG, AKA HENG WEN YANG,
15                 Petitioner,
16
17                        v.                                    11-2050
18
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                 Respondent.
22       _______________________________________
23
24       FOR PETITIONER:                Galab B. Dhungana, New York, N.Y.
25
26       FOR RESPONDENT:                Stuart F. Delery, Acting Assistant
27                                      Attorney General; Richard M. Evans,
28                                      Assistant Director; Jeffrey J.
29                                      Bernstein, Trial Attorney, Office of
30                                      Immigration Litigation, United States
31                                      Department of Justice, Washington, D.C.
 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 is

 4   DISMISSED for lack of jurisdiction.

 5        Petitioner Hengwen Yang, a native and citizen of China,

 6   seeks review of an April 26, 2011, order of the BIA, affirming

 7   the March 29, 2010, decision of Immigration Judge (“IJ”) Barbara

 8   A. Nelson, which denied his applications for adjustment of status

 9   and cancellation of removal.    In re Hengwen Yang, No. A088 958

10   238 (B.I.A. Apr. 26, 2011), aff’g No. A088 958 238 (Immig. Ct.

11   N.Y. City Mar. 29, 2010).   We assume the parties’ familiarity

12   with the underlying facts and procedural history in this case.

13        Under the circumstances of this case, we have reviewed the

14   decision of the IJ as supplemented by the BIA.     See Yan Chen v.

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

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

17   § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d

18   Cir. 2009).

19        We lack jurisdiction to review the agency’s denial of an

20   application for cancellation of removal based on the alien’s

21   failure to establish “exceptional and extremely unusual

22   hardship.”    See Barco-Sandoval v. Gonzales, 516 F.3d 35, 39 (2d

23   Cir. 2008); see also 8 U.S.C. § 1252(a)(2)(B).    While we retain

24   jurisdiction to review constitutional claims and questions of

25   law, see 8 U.S.C. § 1252(a)(2)(D), Yang’s challenge raises

                                      2
 1   neither; it takes issue with the agency’s discretionary hardship

 2   determination.   See Xiao Ji Chen v. U.S. Dep’t of Justice, 471

 3   F.3d 315, 329-30 (2d Cir. 2006).

 4        Yang’s argument that the agency failed to consider his

 5   hardship evidence is cast in terms of a question of law, but his

 6   contentions are unsupported by the record.   For example, while

 7   Yang argues that the agency failed to consider his status as his

 8   family’s sole means of support, the agency noted that his U.S.-

 9   citizen wife (who was not employed) was physically able to

10   maintain employment and that the record did not establish that

11   she would be unable to adequately provide for the family.

12   Similarly, although Yang asserts that the agency ignored the

13   ten-year separation from his family that may result from his

14   removal, see 8 U.S.C. § 1182(a)(9)(A)(ii)(II), the IJ noted that

15   Yang could seek a waiver.   Further, although Yang contends that

16   the agency failed to consider the hardship that his U.S.-citizen

17   children would suffer adjusting to life in China, Yang

18   represented that his wife and children would not accompany him to

19   China if he were removed.

20        For the foregoing reasons, the petition for review is

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

22

23

24


                                     3
 1   that the Court previously granted in this petition is VACATED,

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

 3   DISMISSED as moot.

 4
 5
 6                                 FOR THE COURT:
 7                                 Catherine O’Hagan Wolfe, Clerk
 8
 9
10
11




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