Opinion
No. 08-2916-ag.
March 6, 2009.
Petition for review from the Board of Immigration Appeals ("BIA").
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the petition for review is DISMISSED.
APPEARING FOR PETITIONER: H. RAYMOND FASANO, Madeo Fasano, New York, New York.
APPEARING FOR RESPONDENT: MATT A. CRAPO, Trial Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice (Keith I. McManus, Senior Litigation Counsel, on the brief), for Gregory G. Katsas, Assistant Attorney General, Civil Division, Washington, D.C.
Efrain Portillo-Escamilla petitions for review of the BIA's May 15, 2008 order of removal, which reversed an Immigration Judge's ("IJ") cancellation of removal, a form of relief granted by the IJ based on a finding of "exceptional and extremely unusual hardship" to petitioner's children.See 8 U.S.C. § 1229b(b)(1)(D). We assume the parties' familiarity with the facts and record of prior proceedings, which we reference only as necessary to explain our decision.
Absent a colorable constitutional claim or question of law, we lack jurisdiction to review the agency's § 1229b(b)(1)(D) hardship determinations. See Barco-Sandoval v. Gonzales, 516 F.3d 35, 36 (2d Cir. 2008). Portillo-Escamilla argues that his petition presents a question of law, i.e. whether the BIA's decision is infected by impermissible de novo factfinding contrary to 8 C.F.R. § 1003.1(d)(3)(i) (stating that BIA "will not engage in de novo review of findings of fact determined by an immigration judge"), and thus violated his due process rights.See Barco-Sandoval v. Gonzales, 516 F.3d at 41-42 n. 6 (acknowledging jurisdiction to consider colorable questions of law, such as whether "the agency applied an erroneous legal standard" (internal quotation marks omitted)).
The argument is not convincing. Although the BIA commented on certain record evidence (or the lack thereof) not discussed by the IJ, it did not overturn any fact, let alone a material one, actually determined by the IJ. See 8 C.F.R. § 1003.1(d)(3)(i). Nor do we interpret its summary of the evidence to constitute independent factfindings. See id. § 1003.1(d)(3)(iv). Rather, citing its authority to engage in de novo review of questions of law, discretion, and judgment, see id. § 1003.1(d)(3)(ii), the BIA accepted the background facts from the record as developed before the IJ and concluded that they did not rise to the statutorily required level of hardship to Portillo-Escamilla's children to warrant cancellation of removal. See Wallace v. Gonzales, 463 F.3d 135, 141 (2d Cir. 2006) (observing that BIA's "review of the factual record" does not convert its discretionary determination into "improper factfinding"). It is therefore clear that Portillo-Escamilla employs the rhetoric of a "question of law" when, in fact, the essence of his quarrel is "over the correctness of the [agency's] factual findings or justification for [its] discretionary choices."Barco-Sandoval v. Gonzales, 516 F.3d at 42 (internal quotation marks omitted).
For these reasons, the petition for review is DISMISSED for lack of jurisdiction.