Anthony Oluwadaisi Ayeni v. Eric H. Holder, Jr., Attorney General

United States Court of Appeals
For the First Circuit
No. 09-1508
ANTHONY OLUWADAISI AYENI,
Petitioner,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE BOARD
OF IMMIGRATION APPEALS
Before
Selya, Lipez and Howard, Circuit Judges.
Vard R. Johnson on brief for petitioner.
Tony West, Assistant Attorney General, Civil Division, United
States Department of Justice, Shelley R. Goad, Assistant Director,
Office of Immigration Litigation, and Tim Ramnitz, Attorney, Office
of Immigration Litigation, on brief for respondent.
August 17, 2010

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SELYA, Circuit Judge. The petitioner challenges a
decision of the Board of Immigration Appeals (BIA) denying his
application for cancellation of removal. We lack jurisdiction over
much of his asseverational array, and what remains is without
merit. Accordingly, we reject the petition.
The facts are straightforward. The petitioner, Anthony
Oluwadaisi Ayeni, is a native and citizen of Nigeria. He entered
the United States on a six-month visitor's visa in August of 1987,
and overstayed. He has worked at a variety of occupations,
including janitor, newspaper delivery person, taxi and limousine
driver, and medical technician. Along the way, he earned an
associate's degree in engineering from a community college in
Virginia.
In 1998, the petitioner, having been in the United States
illegally for a decade, married a countrywoman similarly lacking
legal status. The couple and their four American-born children
reside in Cranston, Rhode Island.
The eldest child, a son born in 1993, suffers from severe
asthma and migraine headaches. The second child, a son born in
1996, is afflicted with attention deficit hyperactivity disorder,
for which he takes prescription medication. The third child, a
daughter born in 2000, is healthy. Her younger sister, born in
2002, has manifested developmental deficits affecting her speech
and language skills.

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On April 23, 2003, the Department of Homeland Security
commenced removal proceedings against the petitioner. In a hearing
before an immigration judge (IJ), the petitioner conceded
removability and cross-applied for cancellation of removal. See 8
U.S.C. § 1229b(b)(1). In support, he asserted that he is the sole
source of income for his family and that, therefore, his wife and
children would be forced to accompany him if he were deported.
This would visit upon them a litany of hardships, described in his
testimony.
On December 6, 2004, the IJ rejected the petitioner's
claim and pretermitted his application for cancellation of removal.
She predicated this decision on a finding that the petitioner did
not satisfy the good moral character requirement, id.
§ 1229b(b)(1)(B), because he had made a false claim to United
States citizenship on an employment eligibility form.
The petitioner appealed to the BIA. Concluding that the
petitioner's untruthful assertion of citizenship did not as a
matter of law preclude a finding of good moral character, the BIA
vacated the IJ's decision and remanded for further proceedings.
A newly assigned IJ reconsidered the petitioner's
application for cancellation of removal and, on January 24, 2008,
denied it. This time, the IJ held that the petitioner had failed
to establish that his American-born children would suffer

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"exceptional and extremely unusual hardship" were he sent back to
Nigeria. Id. § 1229b(b)(1)(D).
The petitioner again appealed to the BIA. On March 26,
2009, the BIA upheld the IJ's decision, explaining that the
petitioner had not carried his burden of proving that exceptional
and extremely unusual hardship would be visited upon his children
if he was removed to Nigeria. This timely petition for judicial
review followed. In it, the petitioner asseverates that the BIA
committed material errors of law.
We begin our analysis with the basics. Cancellation of
removal is a form of discretionary relief, the granting of which
allows a non-resident alien, otherwise removable, to remain in the
United States. It is available only if an alien can establish (i)
that he has been physically present in the United States for a
continuous period of not less than ten years immediately preceding
the date of his application; (ii) that he has been a person of good
moral character over that span; (iii) that he has not been convicted
of certain enumerated crimes; and (iv) that his removal would result
in exceptional and extremely unusual hardship to his American-
citizen spouse, parent, or child. Id. § 1229b(b)(1); see Toribio-
Chavez v. Holder, ___ F.3d ___, ___ (1st Cir. 2010) [2010 WL
2680784, at *5]. The first three requirements are not in issue
here. Consequently, we focus the lens of our inquiry on the fourth
element: whether the petitioner has established that his citizen

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children are likely to suffer exceptional and extremely unusual
hardship should he be removed to his homeland.
This focus is narrowly confined. As a general
proposition, the courts of appeals lack jurisdiction to review
agency-level hardship determinations made in the cancellation of
removal context. 8 U.S.C. § 1252(a)(2)(B) (stating that "no court
shall have jurisdiction to review . . . any judgment regarding the
granting of relief" under the cancellation of removal provision);
see Parvez v. Keisler, 506 F.3d 93, 96 (1st Cir. 2007); Elysee v.
Gonzales, 437 F.3d 221, 223 (1st Cir. 2006).
Congress did, however, carve out an isthmian exception to
the sweep of this jurisdiction-stripping provision. Under the
exception, appellate jurisdiction exists when a petition for
judicial review raises claims premised on either constitutional
questions or questions of law. 8 U.S.C. § 1252(a)(2)(D). It
follows that we have jurisdiction in the instant case only if and
to the extent that the petition fits within this exception.
Reaching this safe harbor is not an exercise in semantics.
The presence vel non of either a constitutional or legal question
is a matter of substance, not a function of labeling. A bare
allegation of either a constitutional shortfall or legal error will
not transmogrify an unreviewable issue of fact into an issue
reviewable by the courts. Xiao Ji Chen v. U.S. DOJ, 471 F.3d 315,
331 (2d Cir. 2006). For jurisdiction to attach, the claim of

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constitutional or legal error must at least be colorable. Elysee,
437 F.3d at 223.
In an effort to access the safe harbor and avoid the
jurisdictional bar, the petitioner frames his plaints in the idiom
of constitutional or legal error. He advances four arguments, two
of which substantially overlap. Consequently, we divide our
assessment into three segments.
The petitioner first contends that the BIA committed an
error of law by applying an incorrect legal standard. The
petitioner starts this argument by explaining that the cancellation
of removal statute required him to establish that his removal would
result in exceptional and extremely unusual hardship to qualifying
family members (here, his American-born children). See 8 U.S.C.
§ 1229b(b)(1)(D). Building on this foundation, he insists that the
BIA added a further requirement, unanchored in the statutory text:
proof that he, as the applying alien, would be entirely foreclosed
from obtaining employment in his homeland. Relatedly, the
petitioner argues that, in adding this neoteric requirement, the BIA
departed without explanation from its own precedents and, thus,
abridged his right to due process.
The petitioner's argument that the BIA imposed a new and
unprecedented requirement for entitlement to cancellation of removal
is within our jurisdiction. After all, the choice and shape of an
applicable legal standard is quintessentially a question of law.

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See, e.g., Khan v. Gonzales, 495 F.3d 31, 35 (2d Cir. 2007); Vinick
v. United States, 205 F.3d 1, 7 (1st Cir. 2000); United States v.
Mariano, 983 F.2d 1150, 1154 (1st Cir. 1993). Thus, we have
jurisdiction to hear and determine the petitioner's claim that the
BIA applied an incorrect legal standard in his case. See Lumataw
v. Holder, 582 F.3d 78, 85 (1st Cir. 2009).
This proves to be a Pyrrhic victory for the petitioner.
We review the merits of the claim de novo, though according a
modicum of deference to the BIA's interpretation of the relevant
statute. Mendez-Barrera v. Holder, 602 F.3d 21, 24 (1st Cir. 2010).
This review shows conclusively that there was no error of law. We
explain briefly.
The statement that the petitioner views as the smoking gun
reads as follows: "[T]he record does not establish that the
[petitioner] is entirely foreclosed from obtaining employment in
Nigeria and thus providing his children with the necessities of
life." In characterizing this statement as the herald of a new
standard, the petitioner takes one line of text from the BIA's
decision and attributes disproportionate weight to it. This
approach glosses over the context in which the statement was made
and conveniently overlooks that it is a tiny fraction of the BIA's
evaluation of the evidence bearing on whether the petitioner
established exceptional and extremely unusual hardship.

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Reading the BIA's decision as a whole puts the challenged
statement in perspective. Far from blazing a new trail, the BIA
faithfully applied the congressionally mandated hardship standard.
It did not, as the petitioner charges, create a new requirement that
an alien prove that he would be altogether unemployable in his
homeland. To the contrary, the BIA appears to have made the
challenged statement as a comment on the petitioner's testimony that
he would be unable to find work in Nigeria. The BIA was merely
pointing out that, despite the petitioner's assertion that he would
be unable to obtain employment and support his family if deported,
he had failed to proffer any evidence to substantiate that
assertion.
In the last analysis, the petitioner's argument confuses
the issue of the elements of the standard with the much different
issue of what weight should be accorded to facts that bear upon the
implementation of the standard. The petitioner's potential
employability in Nigeria and its effect on his ability to provide
for his children are not elements of the standard used by the BIA
but, rather, are facts (among others) that inform the BIA's
discretionary determination of whether the petitioner has satisfied
the standard.
The petitioner's related claim of constitutional error —
a putative due process violation — is equally unavailing. The BIA
hewed closely to past precedent in taking into account opportunities

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for employment and ability to provide for qualifying family members
in evaluating an application for cancellation of removal. See,
e.g., In re Gonzalez Recinas, 23 I. & N. Dec. 467, 471 (BIA 2002);
In re Monreal-Aguinaga, 23 I. & N. Dec. 56, 64 (BIA 2001). Because
the petitioner had fair warning of the standard that was used, his
due process rights were not compromised. See Mendez-Barrera, 602
F.3d at 26 (finding no violation of due process because criteria
used in evaluating claim eschewed earlier case law); Medina-Morales
v. Ashcroft, 371 F.3d 520, 529 (9th Cir. 2004) (similar).
The petitioner's second argument centers on the BIA's
reference to his "three" children. Noting that he has four
children, not three, the petitioner asserts that this miscounting
constitutes a misstatement of a material fact that is functionally
equivalent to an error of law.
Even if we assume, for argument's sake, that a mistake of
fact can be so profound as to constitute an error of law, the
petitioner's argument comprises little more than idle buzznacking.
Although the BIA's decision at one point alludes to the petitioner's
"three" children, a later statement in the decision makes it clear
that the BIA knew perfectly well that the petitioner had a fourth
child. It wrote that the petitioner's "two sons take medication
. . . [and] [h]is youngest daughter has speech and language delays"
(emphasis supplied).

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In all events, the alleged miscounting was of no moment.
The omitted child — the petitioner's older daughter — had no special
needs, and her existence did not bear heavily on the hardship
equation. A single mistaken statement about a subsidiary fact would
not by any stretch of even the most fertile imagination constitute
an error of law. See Khan, 495 F.3d at 36 (holding that
petitioner's claim "does not present a question of law, because it
merely quibbles with the IJ's description of the facts"). An agency
does not commit an "error of law" each and every time a piece of
evidence is described with less than perfect accuracy. Mendez v.
Holder, 566 F.3d 316, 323 (2d Cir. 2009) (per curiam). We lack
jurisdiction to adjudicate this claim.
The petitioner's final argument is that the BIA neglected
adequately to weigh the seriousness of his eldest child's asthma.
This failure, he says, constitutes an error of law. Contrary to the
petitioner's importunings, this claim does not raise a reviewable
issue.
Stripped of rhetorical flourishes, the claim comprises
nothing more than a challenge to the correctness of the BIA's
factfinding. It is the BIA's prerogative to evaluate the evidence
of hardship, and Congress has stripped the courts of authority to
second-guess such an evaluation. The petitioner's claim that the
BIA failed to accord sufficient weight to the seriousness of his
son's asthma is a factual claim. Cloaking it in the garb of legal

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error does not alter its nature. See Rashad v. Mukasey, 554 F.3d
1, 5 (1st Cir. 2009) (holding allegation that the agency failed
fully to evaluate an aspect of petitioner's claim to be another way
of saying that the agency got the facts wrong); Liu v. INS, 508 F.3d
716, 721 (2d Cir. 2007) (per curiam) (concluding that a similar
claim amounted to a quarrel with the agency's factfinding); see also
Elysee, 437 F.3d at 223-24.
The petitioner attempts to blunt the force of this
reasoning by invoking the Second Circuit's decision in Mendez.
There, the court held that it had jurisdiction to review an
application for cancellation of removal when the IJ "totally
overlooked" evidence of health-related conditions. 566 F.3d at 323.
In this respect, the case at hand is readily
distinguishable from Mendez. Assuming, without deciding, that a
total failure to consider relevant evidence can amount to an error
of law, there was no such total failure here. Both the BIA and the
second IJ addressed the seriousness of the oldest child's asthma.
For example, the BIA noted that the petitioner's son requires
"regular[]" medication for his asthma, and pondered the medical care
available in Nigeria. Similarly, the second IJ acknowledged that
the eldest son takes medication for his asthma, and characterized
his condition as "chronic."
These excerpts adequately reveal that the evidence in
question was considered, not overlooked. See Parvez, 506 F.3d at

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97; see also Sulaiman v. Gonzales, 429 F.3d 347, 351 (1st Cir.
2005). The petitioner's disagreement with the weight that the
agency attached to his son's asthma is not a sufficient hook on
which appellate jurisdiction may be hung.
We need go no further. The petitioner's claim that the
BIA applied an incorrect legal standard fails on the merits. His
remaining claims pose questions of fact, not law, and are thus
beyond our purview.
The petition for review is dismissed in part for want of
jurisdiction and denied in part. It is so ordered.

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