11-1104-ag
Rosero v. Holder



                              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.

        At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 9th day of February, two thousand twelve.

Present:           JOHN M. WALKER, JR.,
                   ROSEMARY S. POOLER,
                   DEBRA ANN LIVINGSTON,
                             Circuit Judges.

_______________________________________________

CONCEPCION YAMILETH ROSERO,

                                Petitioner,

                         v.                                         11-1104-ag

ERIC H. HOLDER, JR., UNITED STATES ATTORNEY
GENERAL,

                        Respondent.
_______________________________________________

For Petitioner:                 Concepcion Yamileth Rosero, pro se.

For Respondent:                 Tony West, Stephen J. Flynn & Kathryn M. McKinney, U.S.
                                Department of Justice, Washington, D.C.

      Petition for review of a decision of the Board of Immigration Appeals (Adkins-Blanch,
Panel Member).
     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the petition be and it hereby is DISMISSED.

        Concepcion Yamileth Rosero, pro se, seeks review of a decision of the Board of
Immigration Appeals (BIA) affirming an Immigration Judge’s decision to deny her applications
for adjustment of status and a waiver of inadmissibility. We assume the parties’ familiarity with
the underlying facts of the case, the procedural posture, and the issues on appeal.

        “We . . . lack jurisdiction to review the agency’s discretionary denial of a waiver of
inadmissibility under INA § 212(h), 8 U.S.C. § 1182(h).” Bayoumi v. Mukasey, 288 F. App’x
769, 770 (2d Cir. 2008) (summary order) (citing 8 U.S.C. § 1252(a)(2)(B)(i); Xiao Ji Chen v.
U.S. Dep’t of Justice, 471 F.3d 315, 331-32 n.11 (2d Cir. 2006)). Although we retain
jurisdiction to review “constitutional claims or questions of law,” 8 U.S.C. § 1252(a)(2)(D), “a
petitioner cannot us[e] the rhetoric of a constitutional claim or question of law to disguise what is
essentially a quarrel about fact-finding or the exercise of discretion,” Barco-Sandoval v.
Gonzales, 516 F.3d 35, 39 (2d Cir. 2008) (alteration in original) (internal quotation marks
omitted). Moreover, the legal or constitutional claim must at least be “colorable” in order to
confer jurisdiction. Id. at 40.

       Here, we lack jurisdiction to review the agency’s finding that Rosero failed to establish
extreme hardship because Rosero fails to assert a colorable constitutional claim or question of
law. We note only that with respect to Rosero’s claims regarding her sons’s alleged medical
conditions and the Immigration Judge’s alleged refusal to allow her husband to testify, we
cannot consider evidence that is not in the record before us. See 8 U.S.C. § 1252(b)(4)(A). And
we decline to remand the case to the agency for further consideration of any new evidence, given
that Rosero can file a motion to reopen. See Xiao Xing Ni v. Gonzales, 494 F.3d 260, 269-71 (2d
Cir. 2007).

       Accordingly, the petition for review of the decision of the Board of Immigration Appeals
is DISMISSED.


                                              FOR THE COURT:
                                              Catherine O’Hagan Wolfe, Clerk




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