Barry v. Holder ( 2011 )


Menu:
  •          10-2513-ag
    Barry v. Holder
    BIA
    Nelson, IJ
    A094 816 511
    A094 816 512
    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 A SUMMARY
    ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
    1            At a stated term of the United States Court of Appeals
    2       for the Second Circuit, held at the Daniel Patrick Moynihan
    3       United States Courthouse, 500 Pearl Street, in the City of
    4       New York, on the 9th day of September, two thousand eleven.
    5
    6       PRESENT:
    7                RALPH K. WINTER,
    8                JOSÉ A. CABRANES,
    9                ROBERT D. SACK,
    10                     Circuit Judges.
    11       ______________________________________
    12       AISSATOU BARRY, ALSO KNOWN AS NENE
    13       AISSATOU BARRY; ELHADJ MAMADOU BHOYE
    14       BARRY,
    15                Petitioners,
    16
    17                         v.                                   10-2513-ag
    18                                                              NAC
    19       ERIC H. HOLDER, JR.,
    20       UNITED STATES ATTORNEY GENERAL,
    21                Respondent.
    22       ______________________________________
    23
    24       FOR PETITIONERS:              Sandra P. Nichols, New York, New
    25                                     York.
    26
    27       FOR RESPONDENT:               Tony West, Assistant Attorney
    28                                     General; Shelley R. Goad, Assistant
    29                                     Director; Dalin R. Holyoak, Trial
    30                                     Attorney, Office of Immigration
    31                                     Litigation, United States Department
    32                                     of Justice, Washington, D.C.
    1       UPON DUE CONSIDERATION of this petition for review of a
    2   Board of Immigration Appeals (“BIA”) decision, it is hereby
    3   ORDERED, ADJUDGED, AND DECREED, that the petition for review
    4   is DISMISSED.
    5       Aissatou Barry (“Barry”) and her son Elhadj Mamadou
    6   Bhoye Barry, natives and citizens of Guinea, seek review of
    7   a May 28, 2010, order of the BIA affirming the October 1,
    8   2008, decision of Immigration Judge (“IJ”) Barbara A.
    9   Nelson, pretermitting Barry’s application for asylum, which
    10   included her son as a derivative beneficiary, granting Barry
    11   withholding of removal, and ordering Elhadj Mamadou Bhoye
    12   Barry removed to Guinea.   In re Aissatou Barry, Elhadj
    13   Mamadou Bhoye Barry Nos. A094 816 511/512 (B.I.A. May 28,
    14   2010), aff’g Nos. A094 816 511/512 (Immig. Ct. N.Y. City
    15   Oct. 1, 2008).   We assume the parties’ familiarity with the
    16   underlying facts and procedural history in this case.
    17       Title 8, Section 1158(a)(3) of the United States Code
    18   provides that no court shall have jurisdiction to review the
    19   agency’s finding that an asylum application was untimely
    20   under 
    8 U.S.C. § 1158
    (a)(2)(B), or its finding of neither
    21   changed nor extraordinary circumstances excusing the
    22   untimeliness under 
    8 U.S.C. § 1158
    (a)(2)(D).   While the
    23   courts retain jurisdiction, under 
    8 U.S.C. § 1252
    (a)(2)(D),
    24   to review constitutional claims and “questions of law,”
    2
    1   Petitioners have challenged only the agency’s factual
    2   determination that Barry failed to demonstrate changed or
    3   extraordinary circumstances relating to her eligibility for
    4   asylum.   Accordingly, we dismiss the petition for review.
    5   See Xiao Ji Chen v. U.S. Dep’t of Justice, 
    471 F.3d 315
    ,
    6   329-331 (2d Cir. 2006)   (explaining that a petitioner cannot
    7   overcome the lack of a reviewable issue by using the
    8   rhetoric of a constitutional claim or question of law to
    9   disguise what is essentially a quarrel about fact-finding or
    10   the exercise of discretion).
    11       For the foregoing reason, the petition for review is
    12   DISMISSED.   As we have completed our review, any stay of
    13   removal that the Court previously granted in this petition
    14   is VACATED, and any pending motion for a stay of removal in
    15   this petition is DISMISSED as moot.    Any pending request for
    16   oral argument in this petition is DENIED in accordance with
    17   Federal Rule of Appellate Procedure 34(a)(2), and Second
    18   Circuit Local Rule 34.1(b).
    19                                 FOR THE COURT:
    20                                 Catherine O’Hagan Wolfe, Clerk
    21
    22
    3
    

Document Info

Docket Number: 10-2513-ag

Judges: Winter, Cabranes, Sack

Filed Date: 9/9/2011

Precedential Status: Non-Precedential

Modified Date: 11/5/2024