17-1451 Xiaoxian Zhou v. Sessions BIA Poczter, IJ A205 427 585 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

AMENDED 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 TO 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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 26th day of October, two thousand eighteen.

PRESENT: DEBRA ANN LIVINGSTON, RAYMOND J. LOHIER, JR., Circuit Judges, PAUL A. CROTTY,* District Judge. _____________________________________

XIAOXIAN ZHOU, Petitioner,

v. 17-1451

JEFFERSON B. SESSIONS III, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: VLAD KUZMIN, Kuzmin & Associates, P.C., New York, NY.

* Judge Paul A. Crotty, of the United States District Court for the Southern District of New York, sitting by designation. FOR RESPONDENT: SHARON M. CLAY, Trial Attorney, Office of Immigration Litigation, (Chad A. Readler, Acting Assistant Attorney General, Carl McIntyre, Assistant Director, on the brief) 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 Xiaoxian Zhou, a native and citizen of the People’s

Republic of China, seeks review of an April 4, 2017 decision of

the BIA affirming a June 30, 2016 decision of an Immigration Judge

(“IJ”) denying Zhou’s application for cancellation of removal

under 8 U.S.C. § 1229b(b)(1). In re Xiaoxian Zhou, No. A 205 427

585 (B.I.A. April 4, 2017), aff’g No. A 205 427 585 (Immig. Ct.

N.Y. City June 30, 2016). We assume the parties’ familiarity with

the underlying facts and procedural history in this case.

The agency denied cancellation on the ground that Zhou did

not demonstrate that her U.S. citizen children would suffer

exceptional and extremely unusual hardship if she were removed to

China. A nonpermanent resident, such as Zhou, may have her removal

cancelled if, among other factors, she demonstrates that her

“removal would result in exceptional and extremely unusual

hardship” to a qualifying relative, here Zhou’s U.S. citizen sons.

2 8 U.S.C. § 1229b(b)(1)(D). “[T]he hardship to an alien’s

relatives, if the alien is obliged to leave the United States,

must be ‘substantially’ beyond the ordinary hardship that would be

expected when a close family member leaves this country.” In re

Monreal-Aguinaga,

(B.I.A. 2001) (quoting

H.R. Conf. Rep. No. 104-828, at 213 (1996)).

We have reviewed both the IJ’s and the BIA’s decisions, see

Wangchuck v. DHS,

(2d Cir. 2006), but because

cancellation is a form of discretionary relief, our review is

limited, see

(a)(2)(B)(i), (D); Barco-Sandoval v.

Gonzales,

(2d Cir. 2008). Although we retain

jurisdiction to review “constitutional claims or questions of

law,” which we review de novo, such claims must be “colorable.”

Barco-Sandoval,

; see

(“[W]e lack

jurisdiction to review any legal argument that is so insubstantial

and frivolous as to be inadequate to invoke federal-question

jurisdiction.”). Accordingly, we must determine whether an

argument “merely quarrels over the correctness of the factual

findings or justification for the discretionary choices, in which

case the court would lack jurisdiction.” Xiao Ji Chen v. U.S.

Dep’t of Justice,

(2d Cir. 2006).

3 The issue is whether Zhou has identified a colorable

constitutional claim or question of law regarding the hardship

determination. We conclude she has not. Although the agency may

commit an error of law if it ignores or “seriously

mischaracterize[s]” material facts, see Mendez v. Holder,

(2d Cir. 2009), the record reflects that the IJ and the

BIA considered Zhou’s evidence.

First, Zhou argues that the agency erred in not considering

her husband’s lack of legal status in the United States, as this

meant that the children would have to leave the United States with

Zhou. We disagree with Zhou’s characterization. The IJ and the

BIA acknowledged that Zhou testified she would bring her children

to China upon removal, and thus evaluated the hardship the children

would face in China based on that assertion. This made any

consideration of her husband’s status unnecessary.

Second, Zhou’s arguments regarding household registration

quarrel with the agency’s factual findings, which we do not have

jurisdiction to review. See Xiao Ji Chen,

. Zhou

argues that the IJ erred in assuming that the only negative effects

of a lack of household registration are financial and in concluding

that Zhou would be able to overcome any burden to her children by

paying for services such as education and healthcare. However,

4 Zhou does not identify any information in the record regarding the

non-financial harm of non-registration that the agency overlooked.

Zhou asserts that the IJ erred in determining that the

inability to register was a common hardship because the IJ based

this conclusion on the hardship to unregistered Chinese citizens,

not to unregistered U.S. citizens. Again, this is a quarrel with

the agency’s factual findings that we do not have jurisdiction to

review. See Xiao Ji Chen,

. Moreover, as the IJ

noted, Zhou did not document the treatment of foreign-born children

of Chinese citizens. The agency therefore did not overlook any

material evidence. Cf. Mendez,

.

Finally, the agency did not overlook key evidence regarding

Zhou’s younger son’s asthma or the air quality in China. Zhou

argues that although her son has responded positively to medical

treatment in the United States, he may not have the same positive

response to treatment in China. However, Zhou had the burden to

demonstrate how her son’s asthma would be negatively impacted in

China. See 8 U.S.C. § 1229a(c)(4)(A), (B) (placing burden of

proving eligibility for relief on applicant, providing that IJ may

require corroboration of even credible testimony, and requiring

applicant to produce such evidence unless it cannot be reasonably

obtained). The IJ properly made factual determinations about the

5 seriousness of Zhou’s son’s asthma based on the documentation that

Zhou submitted of her son’s current asthma treatment in the United

States. Zhou has not identified any evidence that the IJ

overlooked regarding either her son’s health or air quality in

China. See Xiao Ji Chen,

n.17 (“[W]e presume that

an IJ has taken into account all of the evidence before h[er],

unless the record compellingly suggests otherwise.”).

Because Zhou does not raise a colorable constitutional claim

or question of law, we are without jurisdiction to review her

petition further. See 8 U.S.C. §§ 1229b(b)(1)(D), 1252(a)(2)(B),

(D).

For the foregoing reasons, the petition for review is

DISMISSED.

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

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