Mendoza v. Holder , 424 F. App'x 63 ( 2011 )

10-2741-ag BIA
Mendoza v. Holder Straus, IJ
A072 563 788
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 16th day of June, two thousand eleven.
5
6 PRESENT:
7 ROGER J. MINER,
8 GUIDO CALABRESI,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _________________________________________
12
13 SANDRA MARIA MENDOZA,
14 Petitioner,
15
16 v. 10-2741-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Glenn L. Formica, New Haven,
24 Connecticut.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Linda Wernery, Assistant
28 Director; James E. Grimes, Senior
29 Litigation Counsel, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 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 DENIED in part and DISMISSED in part.
5 Sandra Maria Mendoza, a native and citizen of
6 Guatemala, seeks review of a June 10, 2010 order of the BIA
7 affirming the July 25, 2008 decision of Immigration Judge
8 (“IJ”) Michael W. Straus, which denied her applications for
9 asylum, withholding of removal, relief under the Convention
10 Against Torture (“CAT”), and cancellation of removal. In re
11 Sandra Maria Mendoza, No. A072 563 788 (B.I.A. June 10,
12 2010), aff’g No. A072 563 788 (Immig. Ct. Hartford, July 25,
13 2008). We assume the parties’ familiarity with the
14 underlying facts and procedural history in this case.
15
16 Under the circumstances of this case, we have reviewed
17 the IJ’s decision as modified by the BIA decision. See Xue
18 Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d
19 Cir. 2005). The applicable standards of review are well-
20 established. See 8 U.S.C. § 1252(b)(4)(B)(2006); Yanqin
21 Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
22
23
2
1 I. Asylum, Withholding of Removal and CAT Relief
2 The regulations require IJs to exercise the Attorney
3 General’s discretion to deny asylum to applicants who
4 establish eligibility based solely on past persecution when
5 the government establishes a fundamental change in
6 circumstances sufficient to rebut the presumption of well-
7 founded fear. 8 C.F.R. § 1208.13(b)(1)(2011). Here, the
8 agency noted that the civil war in Guatemala between the
9 government and the guerillas ended over ten years ago.
10 Accordingly, substantial evidence supports the agency’s
11 finding that there was a fundamental change in circumstances
12 sufficient to rebut the presumption of a well-founded fear
13 of persecution by Guatemalan guerillas. Moreover, after
14 Mendoza was shot, she moved from her hometown of Jutiapa,
15 Guatemala, to Guatemala City, where she lived for five years
16 without incident. As a result, even if Mendoza had a well-
17 founded fear of future persecution if she were to return to
18 Guatemala, the record shows that she could avoid persecution
19 by relocating to another part of the country. See 8 C.F.R.
20 § 208.13(b)(2)(ii)(2011). Consequently, substantial
21 evidence supports the agency’s finding that Mendoza does not
22 have a well-founded fear of persecution should she return to
3
1 Guatemala. Furthermore, although Mendoza was shot in the
2 leg, because the injuries she suffered did not limit her
3 ability to earn a living or affect her psychologically to
4 any great extent, the agency did not abuse its discretion in
5 determining that she did not merit a humanitarian grant of
6 asylum. See 8 U.S.C. § 1252(b)(4)(D); Hoxhallari v.
7 Gonzales, 468 F.3d 179, 184 (2d Cir. 2006) (per
8 curiam)(upholding the denial of humanitarian asylum to a
9 supporter of the Democratic Party in Albania who had been
10 beaten and harassed on six occasions); Wu Zheng Huang v.
11 INS, 436 F.3d 89, 96 (2d Cir. 2006).
12 Although Mendoza argues that she will likely be
13 tortured if removed to Guatemala, she has presented no
14 evidence other than general assertions of violent gang
15 activity, which are insufficient to demonstrate her
16 eligibility for CAT relief. See 8 C.F.R. §§ 1208.16(c)(2),
17 1208.18(a)(2011); Mu Xiang Lin v. U.S. Dep’t of Justice, 432
18 F.3d 156, 160 (2d Cir. 2005) (concluding that particularized
19 evidence showing the likelihood of torture is necessary to
20 establish eligibility for CAT protection).
21
22
4
1 II. Cancellation of Removal
2 Mendoza’s petition for review of the agency’s denial of
3 her application for cancellation of removal simply amounts to
4 a challenge to the agency’s factual findings regarding
5 “exceptional and extremely unusual hardship,” over which this
6 court lacks jurisdiction. See 8 U.S.C.§§ 1229b(b)(1),
7 1252(a)(2)(B); see also Barco-Sandoval v. Gonzales, 516 F.3d
8 35, 39 (2d Cir. 2008). Although pursuant to the REAL ID Act
9 we retain jurisdiction to review constitutional claims and
10 questions of law, we “lack jurisdiction to review any legal
11 argument that is so insubstantial and frivolous as to be
12 inadequate to invoke federal-question jurisdiction.” See 8
13 U.S.C. § 1252(a)(2)(D)(2006); Barco-Sandoval, 516 F.3d at 40
14 (citations omitted). Mendoza argues that agency erred as a
15 matter of law by applying the wrong legal standard when
16 considering whether her son would experience the requisite
17 hardship if she were removed to Guatemala, because the IJ only
18 considered the standard as set out in Matter of Monreal-
19 Aguinaga, 23 I. & N. Dec. 56 (B.I.A. 2001). This argument is
20 specifically foreclosed by Barco-Sandoval as being “so
21 insubstantial and frivolous as to be inadequate to invoke
22 federal-question jurisdiction.” 516 F.3d at 40. Mendoza does
23 not raise a colorable question of law, and, accordingly, we
5
1 dismiss the petition for lack of jurisdiction as to the
2 challenge to the denial of cancellation. See 8 U.S.C.
3 § 1252(a)(2)(B)(2006); Barco-Sandoval, 516 F.3d at 39.
4 For the foregoing reasons, the petition for review is
5 DENIED in part and DISMISSED in part. As we have completed
6 our review, any stay of removal that the Court previously
7 granted in this petition is VACATED, and any pending motion
8 for a stay of removal in this petition is DISMISSED as moot.
9 Any pending request for oral argument in this petition is
10 DENIED in accordance with Federal Rule of Appellate Procedure
11 34(a)(2), and Second Circuit Local Rule 34.1(b).
12 FOR THE COURT:
13 Catherine O’Hagan Wolfe, Clerk
14
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