JONES v. HOLDER, 422 Fed.Appx. 40 (2nd Cir. 2011)
No. 10-1449-ag.United States Court of Appeals, Second Circuit.
May 19, 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.
Douglas B. Payne, New York, NY, for Petitioner.
Tony West, Assistant Attorney General; Blair O’Connor, Assistant Director; Rachel Browning, Trial Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., for Respondent.
Present: BARRINGTON D. PARKER, REENA RAGGI, DENNY CHIN, Circuit Judges.
Petitioner Marianie Noze Jones, a native and citizen of Haiti, seeks review of a March 22, 2010, order of the BIA denying her motion to reopen. In re Marianie Noze Jones, No. A20 421 613 (B.I.A. Mar. 22, 2010). We assume the parties’ familiarity with the underlying facts and procedural history of this case.
Because Jones is removable by reason of having committed a criminal offense covered by 8 U.S.C. § 1182(a)(2) (relating to convictions of crimes of moral turpitude), we lack jurisdiction to review the agency’s factual findings and discretionary determinations. See 8 U.S.C. § 1252(a)(2)(C). Although we retain jurisdiction to review constitutional claims and questions of law, see 8 U.S.C. § 1252(a)(2)(D), Jones’s challenge to the BIA’s determination that her motion to reopen was untimely filed and that she failed to establish eligibility for an exception to the timeliness requirement raises no such argument. Jones contends that the BIA’s “gross errors” deprived her of due process. A petitioner must do more than merely assert that some error violated her due process rights. See Barco-Sandoval v. Gonzales, 516 F.3d 35, 40 (2d Cir. 2008) (concluding that the Court lacks
jurisdiction to review “insubstantial and frivolous” constitutional claims and questions of law). Instead, the petitioner must assert a claim that actually raises a substantial constitutional question. Here, Jones fails to assert such a claim, as the substance of Jones’s arguments is only that the BIA erred in finding that the changes in Haiti due to natural disasters were not material to her claims for asylum, withholding of removal, and relief under the Convention Against Torture. Her unsupported and conclusory constitutional claim does not provide us with jurisdiction to review the agency’s fact-finding. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329-30 (2d Cir. 2006).
To the extent Jones alleges a violation of due process because she contends that the agency failed to consider material evidence, this argument is also so insubstantial that it does not provide us with jurisdiction. See Barco-Sandoval, 516 F.3d at 40. Jones’s cursory contention that the BIA did not consider evidence of country conditions is belied by her contrary contention that the BIA erred in its assessment of that evidence. Moreover, contrary to her assertions, the BIA did explicitly refer to Jones’s evidence of changed conditions in Haiti, and this Court does not require the BIA to “expressly parse or refute on the record each individual argument or piece of evidence offered by the petitioner” to establish that it has considered the evidence. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008) (internal quotation marks omitted); see also Xiao Ji Chen, 471 F.3d at 337 n. 17 (presuming that the agency “has taken into account all of the evidence before [it], unless the record compellingly suggests otherwise”).
For the foregoing reasons, 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).