         09-0604-ag
         Dong v. Holder
                                                                                        BIA
                                                                                 Mulligan, IJ
                                                                                A088 533 297
                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                    SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.     CITATION TO SUMMARY ORDERS
     FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1
     AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1.     IN A BRIEF OR OTHER PAPER IN WHICH A
     LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST
     ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:
     “(SUMMARY ORDER).” A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER
     TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED
     BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS
     PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
     HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE
     ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE
     DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.


 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 2 nd day of February, two thousand ten.
 5
 6       PRESENT:
 7                ROBERT D. SACK,
 8                PETER W. HALL,
 9                DEBRA ANN LIVINGSTON,
10                         Circuit Judges.
11       _______________________________________
12
13       HANG YONG DONG,
14                Petitioner,
15
16                        v.                                    09-0604-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:                Theodore N. Cox, New York, New York.
24
1    FOR RESPONDENT:          Tony West, Assistant Attorney
2                             General; Michelle Gorden Latour,
3                             Assistant Director; Jessica E.
4                             Sherman, Trial Attorney, Office of
5                             Immigration Litigation, United
6                             States Department of Justice,
7                             Washington, D.C.
8
9        UPON DUE CONSIDERATION of this petition for review of a

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

11   ORDERED, ADJUDGED, AND DECREED, that the petition for review

12   is DENIED.

13       Hang Yong Dong, a native and citizen of China, seeks

14   review of a February 4, 2009 order of the BIA, affirming the

15   April 28, 2008 decision of Immigration Judge (“IJ”) Thomas

16   J. Mulligan, which denied his applications for cancellation

17   of removal, asylum, withholding of removal, and relief under

18   the Convention Against Torture (“CAT”).    In re Hang Yong

19   Dong, No. A088 533 297 (B.I.A. Feb. 4, 2009), aff’g No. A088

20   533 297 (Immig. Ct. N.Y. City Apr. 28, 2008).    We assume the

21   parties’ familiarity with the underlying facts and

22   procedural history of this case.

23       Under the circumstances of this case, we consider both

24   the IJ’s and the BIA’s opinions “for the sake of

25   completeness.”    Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.

26   2008).   The applicable standards of review are well-



                                    2
1    established.     See Corovic v. Mukasey, 519 F.3d 90, 95 (2d

2    Cir. 2008); Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d

3    Cir. 2008).

4    I.    Application for Cancellation of Removal

5          We lack jurisdiction to review the agency’s denial of

6    Dong’s application for cancellation of removal based on his

7    failure to establish “exceptional and extremely unusual

8    hardship.”     8 U.S.C. § 1252(a)(2)(B); see also Barco-

9    Sandoval v. Gonzales, 516 F.3d 35, 39 (2d Cir. 2008).      While

10   we retain jurisdiction to review constitutional claims and

11   questions of law, 8 U.S.C. § 1252(a)(2)(D), “we lack

12   jurisdiction to review any legal argument that is so

13   insubstantial and frivolous as to be inadequate to invoke

14   federal-question jurisdiction,” Barco-Sandoval, 516 F.3d at

15   40.    We also lack jurisdiction to review purported

16   constitutional claims or questions of law when the argument

17   “merely quarrels over the correctness of the factual

18   findings or justification for . . . discretionary choices.”

19   Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d

20   Cir. 2006).     In this case, although Dong purports to raise

21   errors of law in the agency’s decisions, in substance his

22   arguments are not colorable or simply amount to challenges



                                     3
1    of the agency’s factual findings over which we lack

2    jurisdiction.    See Barco-Sandoval, 516 F.3d at 40; see also

3    Xiao Ji Chen, 471 F.3d at 329.       Accordingly, we dismiss

4    Dong’s petition for review for lack of jurisdiction to the

5    extent that he challenges the agency’s denial of his

6    application for cancellation of removal.

7    II.    Applications for Asylum and Withholding of Removal

8           Substantial evidence supports the agency’s finding that

9    Dong failed to establish his eligibility for asylum and

10   withholding of removal based on the birth of his U.S.

11   citizen children.    See Jian Hui Shao v. Mukasey, 546 F.3d

12   138, 158-73 (2d Cir. 2008).    We have previously reviewed the

13   agency’s consideration of similar evidence to that which

14   Dong submitted in this case and have found no error in its

15   conclusion that such evidence was insufficient to establish

16   an objectively reasonable fear of persecution.       See id.

17   Accordingly, the agency reasonably denied his applications

18   for asylum and withholding of removal.       See Paul v.

19   Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).

20   III.    Application for CAT Relief

21          As the government contends, Dong abandons any challenge

22   to the agency’s denial of his application for CAT relief by

23   failing to raise any such challenge in his brief to this
                                    4
1    Court.    See Anderson v. Branen, 27 F.3d 29, 30 (2d Cir.

2    1994).

3         For the foregoing reasons, the petition for review is

4    DENIED.    Having completed our review, we DISMISS the

5    petitioner's pending motion for a stay of removal as moot.

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




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