         12-4625
         Afzal v. Holder
                                                                                       BIA
                                                                                  Nelson, IJ
                                                                               A074 854 077
                                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 Thurgood Marshall United States
 3       Courthouse, 40 Foley Square, in the City of New York, on the 29th
 4       day of October, two thousand thirteen.
 5
 6       PRESENT:
 7                 RALPH K. WINTER,
 8                 DENNIS JACOBS,
 9                 CHESTER J. STRAUB,
10                      Circuit Judges.
11       _______________________________________
12
13       CHOUDHRY AFZAL, AKA AFZAL CHOUDHRY,
14       AKA MUHAMMED A. BAJWA, AKA A. BAJWA,
15                      Petitioner,
16
17                         v.                                   12-4625
18
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                      Respondent.
22       _______________________________________
23
24       FOR PETITIONER:                 Alexander J. Segal, Grinberg & Segal,
25                                       P.L.L.C., New York, NY.
26
27       FOR RESPONDENT:                 Stuart F. Delery, Acting Assistant
28                                       Attorney General; Nancy E. Friedman,
29                                       Senior Litigation Counsel; Allen W.
30                                       Hausman, Senior Litigation Counsel,
31                                       Office of Immigration Litigation, United
32                                       States Department of Justice,
33                                       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 in part, and DENIED in part.

 5        Petitioner Choudhry Afzal, a native and citizen of Pakistan,

 6   seeks review of an October 23, 2012 order of the BIA, affirming

 7   the January 10, 2011 decision of Immigration Judge (“IJ”) Barbara

 8   A. Nelson, which denied his application for cancellation of

 9   removal.   In re Choudhry Afzal, No. A074 854 077 (B.I.A. Oct. 23,

10   2012), aff’g No. A074 854 077 (Immig. Ct. N.Y. City Jan. 10,

11   2011).   We assume the parties’ familiarity with the underlying

12   facts and procedural history.

13        Under the circumstances of this case, we review the IJ’s

14   decision as modified by the BIA.     See Xue Hong Yang v. U.S. Dep’t

15   of Justice, 426 F.3d 520, 522 (2d Cir. 2005).    The applicable

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

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

18   513 (2d Cir. 2009).

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

20   application for cancellation of removal if the denial is based on

21   the alien’s failure to establish “exceptional and extremely

22   unusual hardship.”    See 8 U.S.C. § 1252(a)(2)(B); see also

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

24   While we retain jurisdiction to review constitutional claims and

25   questions of law, see 8 U.S.C. § 1252(a)(2)(D), Afzal’s

26   challenges in substance do no more than take issue with the

                                      2
 1   agency’s discretionary hardship determination.     See Xiao Ji Chen

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

 3   Afzal’s argument--that the agency mischaracterized or failed to

 4   consider his hardship evidence–-is unsupported by the record and

 5   does not raise a question of law.     See Mendez v. Holder, 566 F.3d

 6   316, 322-23 (2d Cir. 2009); Barco-Sandoval, 516 F.3d at 42

 7   (rejecting petitioner’s attempt to frame disagreement over the

 8   agency’s exercise of discretion as a question of law).

 9        Afzal argues that the agency committed legal error by

10   failing to discuss explicitly the risk of kidnapping his children

11   would face in Pakistan.   However, we presume that the agency “has

12   taken into account all of the evidence before [it], unless the

13   record compellingly suggests otherwise”.     Xiao Ji Chen, 471 F.3d

14   at 337 n.17.   In any event, the contention is too insubstantial

15   to invoke our jurisdiction given his testimony that his children

16   would remain with their mother in the U.S. if he is removed.        See

17   Barco-Sandoval, 516 F.3d at 40.     Afzal asserts that the agency

18   committed an error of law by finding that the mother of his

19   children could work outside the home, in light of his testimony

20   that she had problems with English.    However, this assertion

21   merely challenges “the correctness of the [agency’s] factual

22   findings,” which we lack jurisdiction to review.     Xiao Ji Chen,

23   471 F.3d at 329.

24        Afzal contends that the agency failed to consider his

25   renewed application for adjustment of status.    However, the BIA


                                       3
 1   reasonably determined that Afzal’s counsel told the IJ that Afzal

 2   was proceeding with only his application for cancellation of

 3   removal.    Afzal argues that counsel was expressing an intention

 4   to apply for cancellation of removal in addition to adjustment of

 5   status.    However, the agency’s inference “is tethered to the

 6   evidentiary record,” so “we will accord deference to the

 7   finding.”    See Siewe v. Gonzales, 480 F.3d 160, 168-69 (2d Cir.

 8   2007).    Afzal cites the IJ’s affirmative duty to advise aliens of

 9   their potential eligibility for forms of relief from removal.

10   See 8 C.F.R §1240.11(a)(2).    The IJ here did discuss Afzal’s

11   eligibility for adjustment of status and stated that Afzal would

12   likely be ineligible for relief unless United States Citizenship

13   and Immigration Services reconsidered its finding that his prior

14   marriage was fraudulent.

15        For the foregoing reasons, the petition for review is

16   DISMISSED for lack of jurisdiction in part, and DENIED in part.

17   As we have completed our review, any stay of removal that the

18   Court previously granted in this petition is VACATED, and any

19   pending motion for a stay of removal in this petition is

20   DISMISSED as moot.

21                                   FOR THE COURT:
22                                   Catherine O’Hagan Wolfe, Clerk
23
24
25




                                      4
