Filed: Mar. 05, 2012
Latest Update: Feb. 22, 2020
Summary: 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 NOTATIO
Summary: 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..
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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
4
