         10-4086-ag
         Patel v. Holder
                                                                                            BIA
                                                                                A098 579 684/245
                                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 New
 4       York, on the 5th day of March, two thousand twelve.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                     Chief Judge,
 9                DEBRA ANN LIVINGSTON,
10                DENNY CHIN,
11                     Circuit Judges.
12       _________________________________________
13
14       BHARAT KUMAR KEVALDAS PATEL,
15       AKA BHARATKUMAR PATEL, REKHABEN
16       NATAVARLAL,
17                Petitioners,
18
19                         v.                                      10-4086-ag
20                                                                 NAC
21       ERIC H. HOLDER, JR., UNITED STATES
22       ATTORNEY GENERAL,
23                Respondent.
24       _________________________________________
25
26       FOR PETITIONERS:               Justin Fappiano, New Haven,
27                                      Connecticut.
28
29       FOR RESPONDENT:                Tony West, Assistant Attorney General;
30                                      Leslie McKay, Assistant Director;
31                                      Jessica Segall, Trial Attorney, Office
32                                      of Immigration Litigation, United
33                                      States Department of Justice,
34                                      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       Petitioners Bharat Kumar Kevaldas Patel and Rekhaben

 6   Natavarlal, natives and citizens of India, seek review of a

 7   September 13, 2010, order of the BIA denying their motion to

 8   reopen.   In re Bharat Kumar Kevaldas Patel, Rekhaben

 9   Natavarlal, Nos. A098 579 684/245 (B.I.A. Sept. 13, 2010).     We

10   assume the parties’ familiarity with the underlying facts and

11   procedural history of the case.

12       Because we lack jurisdiction to review the agency’s

13   denial of an application for cancellation of removal based on

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

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

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

17   likewise lack jurisdiction to consider the agency’s hardship

18   finding in the motion to reopen context.    See Sepulveda v.

19   Gonzales, 407 F.3d 59, 64 (2d Cir. 2005).   Nonetheless, we

20   retain jurisdiction to review constitutional claims and

21   questions of law.   See 8 U.S.C. § 1252(a)(2)(D).

22       We lack jurisdiction to consider petitioners’ challenges

23   to the BIA’s denial of their motion to reopen for

24   consideration of whether their removal would cause


                                    2
 1   Natavarlal’s parents hardship because their assertions of

 2   legal error are insufficient to invoke our jurisdiction.      See

 3   Barco-Sandoval, 516 F.3d at 40 (holding that the Court

 4   “lack[s] jurisdiction to review any legal argument that is so

 5   insubstantial and frivolous as to be inadequate to invoke

 6   federal-question jurisdiction”).   Contrary to petitioners’

 7   assertion, the BIA did not ignore relevant established

 8   precedent by failing to remand pursuant to Matter of Gomez, 23

 9   I. & N. Dec. 893 (BIA 2006).   In Matter of Gomez, the BIA

10   reopened and remanded because the IJ erred in finding that the

11   movant’s parents did not constitute qualifying relatives for

12   purposes of cancellation of removal.   See 23 I. & N. Dec. at

13   894.   Here, on the other hand, the BIA assumed that

14   Natavarlal’s parents were qualifying relatives, but concluded

15   that petitioners failed to present prima facie evidence that

16   their removal would cause their qualifying relatives

17   exceptional and extremely unusual hardship.   Thus, the BIA did

18   not commit legal error in declining to remand pursuant to

19   Matter of Gomez, and petitioners’ argument that the BIA failed

20   to follow established precedent is inadequate to invoke our

21   jurisdiction.   See Barco-Sandoval, 516 F.3d at 40.    Equally

22   inadequate is petitioners’ conclusory assertion that the BIA

23   overlooked or mischaracterized facts important to the


                                    3
 1   determination of whether they had established their prima

 2   facie eligibility for relief because the BIA specifically

 3   considered all of the facts presented in their evidence.

 4   Therefore, because petitioners fail to raise a colorable

 5   question of law, we lack jurisdiction to consider the BIA’s

 6   denial of their motion to reopen.       See 8 U.S.C.

 7   § 1252(a)(2)(B); see also Sepulveda, 407 F.3d at 64; Barco-

 8   Sandoval, 516 F.3d at 39.

 9       For the foregoing reasons, the petition for review is

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

11   removal that the Court previously granted in this petition is

12   VACATED, and any pending motion for a stay of removal in this

13   petition is DISMISSED as moot.       Any pending request for oral

14   argument in this petition is DENIED in accordance with Federal

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

16   Rule 34.1(b).

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




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