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

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 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 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,

(2d Cir. 2006).

A. Asylum

Under

(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 2 United States.” An application may be considered outside the

deadline “if the alien demonstrates . . . extraordinary

circumstances relating to the delay,”

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

reasonable time,

(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.

§ 1208.4(a)(5)(i)-(vi).

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.”

(a)(2)(D); see

(a)(3). For

jurisdiction to attach, such claims must be colorable.

Barco-Sandoval v. Gonzales,

(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,

(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,

(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,

(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

(a)(3); see also

Barco-Sandoval,

.

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.

(a)(2)(B), (D); Barco-Sandoval,

.

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,

(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

(a)(2)(B), (D);

see also Barco-Sandoval,

.

7 For the foregoing reasons, the petition for review is

DISMISSED.

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

8