No. 10-2513-ag.United States Court of Appeals, Second Circuit.
September 9, 2011.
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.
Sandra P. Nichols, New York, NY, for Petitioners.
Tony West, Assistant Attorney General; Shelley R. Goad, Assistant Director; Dalin R. Holyoak, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent.
PRESENT: RALPH K. WINTER, JOSE A. CABRANES, ROBERT D. SACK, Circuit Judges.
SUMMARY ORDER
Aissatou Barry (“Barry”) and her son Elhadj Mamadou Bhoye Barry, natives and citizens of Guinea, seek review of a May 28, 2010, order of the BIA affirming the October 1, 2008, decision of Immigration Judge (“IJ”) Barbara A. Nelson, pretermitting Barry’s application for asylum, which included her son as a derivative beneficiary, granting Barry withholding of removal, and ordering Elhadj Mamadou Bhoye Barry removed to Guinea In re Aissatou Barry, Elhadj Mamadou Bhoye Barry
Nos. A094 816 511/512 (B.L.A. May 28, 2010), affg Nos. A094 816 511/512 (Immig. Ct. N.Y. City Oct. 1, 2008). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
Title 8, Section 1158(a)(3) of the United States Code provides that no court shall have jurisdiction to review the agency’s finding that an asylum application was un-timely under 8 U.S.C. § 1158(a)(2)(B), or its finding of neither changed nor extraordinary circumstances excusing the untimeliness under 8 U.S.C. § 1158(a)(2)(D). While the courts retain jurisdiction, under 8 U.S.C. § 1252(a)(2)(D), to review constitutional claims and “questions of law,” Petitioners have challenged only the agency’s factual determination that Barry failed to demonstrate changed or extraordinary circumstances relating to her eligibility for asylum. Accordingly, we dismiss the petition for review. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329-331 (2d Cir. 2006) (explaining that a petitioner cannot overcome the lack of a reviewable issue by using the rhetoric of a constitutional claim or question of law to disguise what
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is essentially a quarrel about fact-finding or the exercise of discretion).
For the foregoing reason, the petition for review is DISMISSED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).