U.S. Court of Appeals for the Second Circuit, 2010

Muriel Patino v. Holder

Muriel Patino v. Holder
U.S. Court of Appeals for the Second Circuit · Decided May 7, 2010 · Calabresi, Cabranes, Livingston
376 F. App'x 74

Muriel Patino v. Holder

Opinion

SUMMARY ORDER

Petitioners, all natives and citizens of Colombia, seek review of a July 14, 2009, order of the BIA affirming the May 1, 2008, decision of Immigration Judge (“IJ”) *75 Michael W. Straus which: (1) pretermitted Ramirez-Giraldo’s application for asylum; (2) denied her application for withholding of removal and relief under the Convention Against Torture (“CAT”); (3) pretermitted Ramirez-Giraldo’s and Muriel Ramirez’s applications for cancellation of removal; and (4) denied Muriel-Patino’s application for cancellation of removal. In re Muriel Patino, et. al., Nos. A097 156 871/872/870 (BIA July 14, 2009), aff'g Nos. A097 156 871/872/870 (Immig.Ct.Hartford, CT, May 1, 2008). We assume the parties’ familiarity with the underlying facts and procedural history in this case.

Under the circumstances of this case, we review the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable standards of review are well-established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

I. Withholding of Removal

Substantial evidence supports the IJ’s denial of Ramirez-Giraldo’s application for withholding of removal. 1 Although she now argues that she suffered past persecution, she made no such claim before the IJ, alleging in her asylum application only that her brother, Gustavo, had been threatened after she had departed for the United States. Moreover, the IJ reasonably determined that Ramirez-Giraldo did not establish a clear probability of future persecution based solely on those alleged threats. See Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005) (per cu-riam) (holding that a fear is not objectively reasonable if it lacks “solid support” in the record and is merely “speculative at best.”). In denying relief, the IJ also reasonably noted that much of Ramirez-Giral-do’s family remains in Colombia unharmed. See Melgar de Torres v. Reno, 191 F.3d 307, 313 (2d Cir. 1999) (finding that because the asylum applicant’s mother and daughters continued to live in her native country unharmed, her claim of a well-founded fear was weakened).

II. Cancellation of Removal

We lack jurisdiction to review the agency’s denial of Muriel Patino’s application for cancellation of removal based on his failure to establish “exceptional and extremely unusual hardship” to his United States citizen son. 8 U.S.C. § 1252(a)(2)(B); see also Barco-Sandoval v. Gonzales, 516 F.3d 35, 39 (2d Cir. 2008). While we retain jurisdiction to review constitutional claims and questions of law, 8 U.S.C. § 1252(a)(2)(D), “we lack jurisdiction to review any legal argument that is so insubstantial and frivolous as to be inadequate to invoke federal-question jurisdiction,” Barco-Sandoval, 516 F.3d at 40. Likewise, we lack jurisdiction to review purported constitutional claims or questions of law when the argument “merely quarrels over the correctness of the factual findings or justification for ... discretionary choices.” Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d Cir. 2006). In this case, although Cesar purports to raise errors of law in the agency’s decisions, in substance his arguments simply amount to challenges to the agency’s factual findings over which we lack jurisdiction. See Barco-Sandoval, 516 F.3d at 40; see also Xiao Ji Chen, 471 F.3d at 329. We dismiss the petition for review to that extent.

For the foregoing reasons, the petition for review is DENIED in part and DIS *76 MISSED in part. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).

1

. Despite the Government’s argument, we decline to dispose of this claim on exhaustion grounds, addressing instead the BIA’s alternative affirmance of the II's denial of withholding of removal.

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