         10-2513-ag
         Barry v. Holder
                                                                                       BIA
                                                                                  Nelson, IJ
                                                                               A094 816 511
                                                                               A094 816 512
                            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
 4       New York, on the 9th day of September, two thousand eleven.
 5
 6       PRESENT:
 7                RALPH K. WINTER,
 8                JOSÉ A. CABRANES,
 9                ROBERT D. SACK,
10                     Circuit Judges.
11       ______________________________________
12       AISSATOU BARRY, ALSO KNOWN AS NENE
13       AISSATOU BARRY; ELHADJ MAMADOU BHOYE
14       BARRY,
15                Petitioners,
16
17                         v.                                   10-2513-ag
18                                                              NAC
19       ERIC H. HOLDER, JR.,
20       UNITED STATES ATTORNEY GENERAL,
21                Respondent.
22       ______________________________________
23
24       FOR PETITIONERS:              Sandra P. Nichols, New York, New
25                                     York.
26
27       FOR RESPONDENT:               Tony West, Assistant Attorney
28                                     General; Shelley R. Goad, Assistant
29                                     Director; Dalin R. Holyoak, Trial
30                                     Attorney, Office of Immigration
31                                     Litigation, United States Department
32                                     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

 4   is DISMISSED.

 5       Aissatou Barry (“Barry”) and her son Elhadj Mamadou

 6   Bhoye Barry, natives and citizens of Guinea, seek review of

 7   a May 28, 2010, order of the BIA affirming the October 1,

 8   2008, decision of Immigration Judge (“IJ”) Barbara A.

 9   Nelson, pretermitting Barry’s application for asylum, which

10   included her son as a derivative beneficiary, granting Barry

11   withholding of removal, and ordering Elhadj Mamadou Bhoye

12   Barry removed to Guinea.   In re Aissatou Barry, Elhadj

13   Mamadou Bhoye Barry Nos. A094 816 511/512 (B.I.A. May 28,

14   2010), aff’g Nos. A094 816 511/512 (Immig. Ct. N.Y. City

15   Oct. 1, 2008).   We assume the parties’ familiarity with the

16   underlying facts and procedural history in this case.

17       Title 8, Section 1158(a)(3) of the United States Code

18   provides that no court shall have jurisdiction to review the

19   agency’s finding that an asylum application was untimely

20   under 8 U.S.C. § 1158(a)(2)(B), or its finding of neither

21   changed nor extraordinary circumstances excusing the

22   untimeliness under 8 U.S.C. § 1158(a)(2)(D).   While the

23   courts retain jurisdiction, under 8 U.S.C. § 1252(a)(2)(D),

24   to review constitutional claims and “questions of law,”

                                   2
 1   Petitioners have challenged only the agency’s factual

 2   determination that Barry failed to demonstrate changed or

 3   extraordinary circumstances relating to her eligibility for

 4   asylum.   Accordingly, we dismiss the petition for review.

 5   See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315,

 6   329-331 (2d Cir. 2006)   (explaining that a petitioner cannot

 7   overcome the lack of a reviewable issue by using the

 8   rhetoric of a constitutional claim or question of law to

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

10   the exercise of discretion).

11       For the foregoing reason, the petition for review is

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

13   removal that the Court previously granted in this petition

14   is VACATED, and any pending motion for a stay of removal in

15   this petition is DISMISSED as moot.    Any pending request for

16   oral argument in this petition is DENIED in accordance with

17   Federal Rule of Appellate Procedure 34(a)(2), and Second

18   Circuit Local Rule 34.1(b).

19                                 FOR THE COURT:
20                                 Catherine O’Hagan Wolfe, Clerk
21
22




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