17-1962
    Lin v. Barr
                                                                                   BIA
                                                                              Nelson, IJ
                                                                           A200 743 458

                       UNITED STATES COURT OF APPEALS
                           FOR THE SECOND CIRCUIT

                               SUMMARY ORDER
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         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Thurgood Marshall
    United States Courthouse, 40 Foley Square, in the City of
    New York, on the 30th day of August, two thousand nineteen.

    PRESENT:
             REENA RAGGI,
             PETER W. HALL,
             SUSAN L. CARNEY,
                  Circuit Judges.
    _____________________________________

    YUE FENG LIN,
             Petitioner,

                  v.                                             17-1962
                                                                 NAC

    WILLIAM P. BARR, UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:                   Gary J. Yerman, New York, NY.

    FOR RESPONDENT:                   Chad A. Readler, Acting Assistant
                                      Attorney General; Jessica E.
                                      Burns, Senior Litigation Counsel;
                                      Rosanne M. Perry, Trial Attorney,
                                      Office of Immigration Litigation,
                                      United States Department of
                                      Justice, Washington, DC.
      UPON DUE CONSIDERATION of this petition for review of a

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

ORDERED, ADJUDGED, AND DECREED that the petition for review

is DISMISSED.

      Petitioner Yue Feng Lin, a native and citizen of the

People’s Republic of China, seeks review of a May 24, 2017,

decision of the BIA affirming the February 22, 2016, decision

of an Immigration Judge (“IJ”) pretermitting asylum, granting

withholding of removal, and denying cancellation of removal.

In re Yue Feng Lin, No. A200 743 458 (B.I.A. May 24, 2017),

aff’g No. A200 743 458 (Immig. Ct. N.Y. City Feb. 22, 2016).

We assume the parties’ familiarity with the underlying facts

and procedural history in this case.

      We have reviewed both the IJ’s and the BIA’s opinions

“for the sake of completeness.”               Wangchuck v. Dep’t of

Homeland Security, 

, 528 (2d Cir. 2006).

  A. Asylum

      Under 8 U.S.C. § 1158(a)(2)(B), an alien is ineligible

for   asylum   “unless    the    alien   demonstrates   by   clear   and

convincing     evidence   that    the    application   has   been   filed

within 1 year after the date of the alien’s arrival in the
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United States.”      An application may be considered outside the

deadline “if the alien demonstrates . . . extraordinary

circumstances        relating         to       the     delay,”         8 U.S.C.

§ 1158(a)(2)(D),      and     the    application       is    filed     within    a

reasonable      time,        8 C.F.R.       § 1208.4(a)(4)(ii),             (5).

Extraordinary circumstances include, but are not limited to,

serious illness, legal disability, ineffective assistance of

counsel, maintenance of lawful status or a grant of parole,

timely filing of an application rejected by the Service, and

death or serious illness of legal representative or immediate

family.   

    Our   jurisdiction         to     review     the      agency’s     findings

regarding the timeliness of an asylum application and the

circumstances        excusing        untimeliness           is    limited       to

“constitutional      claims     or    questions      of     law.”      8 U.S.C.

§ 1252(a)(2)(D);        see         8 U.S.C.     § 1158(a)(3).                 For

jurisdiction    to    attach,       such   claims      must      be   colorable.

Barco-Sandoval v. Gonzales, 

, 40-41 (2d Cir. 2008).

    Lin   argues      that    the     IJ   failed      to    provide     her    an

opportunity to testify about the extraordinary circumstances

alleged in her asylum application—her status as a single
                                       3
mother      with   financial   difficulties.              As    the   Government

argues, we need not consider this argument, which Lin failed

to exhaust on appeal to the BIA because she argued only that

the    IJ    erred   in    rejecting       her    claim    of    extraordinary

circumstances.       See Lin Zhong v. U.S. Dep’t of Justice, 

, 121-22 (2d Cir. 2007) (providing that we generally

consider only those issues that were exhausted and formed the

basis for the agency’s decision); Theodoropoulos v. INS, 

,   172   (2d    Cir.   2004)         (requiring     exhaustion    of

constitutional issues where BIA could offer a remedy).

       Moreover, Lin’s argument is not colorable because the IJ

provided Lin a full and fair opportunity to present her claim.

See Li Hua Lin v. U.S. Dep’t of Justice, 

, 104-05

(2d Cir. 2006) (providing that due process requires that an

applicant receive a full and fair hearing that provides a

meaningful opportunity to be heard).                Lin was represented by

counsel before the IJ, was aware of the timeliness issue, and

was permitted to testify and present witnesses on any matter.

Further, Lin does not identify what additional facts she would

have provided to establish that extraordinary circumstances

prevented her from filing her asylum application in the twelve
                                       4
years between her entry into the United States and her

application.

    Accordingly, because Lin does not raise a colorable

constitutional       claim    or    question    of    law   regarding     the

agency’s pretermission of asylum, we lack jurisdiction to

review that decision.          See 8 U.S.C. § 1158(a)(3); see also

.

  B. Cancellation of Removal

    An alien, like Lin, who is not a permanent resident, may

have her removal cancelled if she “(A) has been physically

present in the United States for a continuous period of not

less than 10 years immediately preceding the date of such

application; (B) has been a person of good moral character

during such period; (C) has not been convicted of [certain]

offense[s] . . . ; and (D) establishes that removal would

result in exceptional and extremely unusual hardship to [her]

spouse, parent, or child, who is a citizen of the United

States   or    an     alien    lawfully        admitted     for   permanent

residence.”    8 U.S.C. § 1229b(b)(1).               The agency concluded

that Lin satisfied all but the hardship requirement.                      Our

jurisdiction    to    review       the   agency’s    conclusion    that    an
                                         5
applicant    failed    to    satisfy       the   hardship    requirement   is

limited to colorable constitutional claims and questions of

law.    8 U.S.C. § 1252(a)(2)(B), (D); 

.

       Lin argues that the agency ignored and misconstrued

evidence related to the hardship determination and that the

BIA failed to consider her argument that the IJ violated due

process.    Lin’s arguments are not colorable.

       Lin argues that the agency mischaracterized the medical

evidence in concluding that her daughter would not suffer the

requisite hardship.         Although the agency may commit an error

of law if it ignores or seriously mischaracterizes material

facts, see Mendez v. Holder, 

, 323 (2d Cir. 2009),

the IJ did not ignore or mischaracterize this evidence.                     A

psychologist testified that Lin’s daughter did not require

medication    for     her    abandonment         issues,    depression,    and

anxiety, and his and Lin’s testimony established that Lin’s

daughter attended only five therapy sessions in four years.

Accordingly, contrary to Lin’s argument, the agency did not

mischaracterize the evidence in concluding that her daughter

did not require medication or receive regular therapy.
                                       6
     Likewise, Lin has no colorable claim that the agency

failed to consider evidence that her removal would cause her

husband and other children hardship.          Neither Lin nor her

husband testified that their children or Lin’s stepson would

suffer any specific hardship caused by her removal.          And the

agency acknowledged that Lin’s husband testified that it

would be difficult for him to work and take care of their

children but concluded that such hardship was not exceptional

or extremely unusual.      Therefore, the agency did not ignore

the impact her removal would have on her husband and children.

     Finally, Lin’s argument that the BIA failed to consider

her due process claim is not colorable.         The BIA explicitly

considered and rejected Lin’s contention that the IJ replaced

the expert psychologist’s opinion with her own and failed to

consider Lin’s husband’s testimony regarding hardship.

     Accordingly, because Lin’s arguments are not colorable

constitutional claims nor do they raise colorable questions

of   law,   we   lack   jurisdiction   to   review   the   denial   of

cancellation of removal.      See 8 U.S.C. § 1252(a)(2)(B), (D);

see also 

.


                                 7
    For the foregoing reasons, the petition for review is

DISMISSED.

                          FOR THE COURT:
                          Catherine O’Hagan Wolfe
                          Clerk of Court




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