Bharat Kumar Kevaldas PATEL, aka Bharatkumar Patel, Rekhaben Natavarlal, Petitioners, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent, 463 F. App'x 58

SUMMARY ORDER Petitioners Bharat Kumar Kevaldas Patel and Rekhaben Natavarlal, natives and citizens of India, seek review of a September 13, 2010, order of the BIA denying their motion to reopen. In re Bharat Kumar Kevaldas Patel, Rekhaben Natavarlal, Nos. [ AXXX XXX XXX ]/245 (B.I.A. Sept. 13, 2010). We assume the parties’ familiarity with the underlying facts and procedural history of the case.

Because we lack jurisdiction to review the agency’s denial of an application for cancellation of removal based on he alien’s failure to establish “exceptional and extremely unusual hardship,” see 8 U.S.C. § 1252(a)(2)(B); see also Barco-Sandoval v. Gonzales, 516 F.3d 35, 39 (2d Cir.2008), we likewise lack jurisdiction to consider the agency’s hardship finding in the motion to reopen context. See Sepulveda v. Gonzales, 407 F.3d 59, 64 (2d Cir.2005). Nonetheless, we retain jurisdiction to review constitutional claims and questions of law. See 8 U.S.C. § 1252(a)(2)(D).

We lack jurisdiction to consider petitioners’ challenges to the BIA’s denial of their motion to reopen for consideration of whether their removal would cause Nata-varlal’s parents hardship because their assertions of legal error are insufficient to invoke our jurisdiction. See Barco-Sandoval, 516 F.3d at 40 (holding that the Court “lack[s] jurisdiction to review any legal argument that is so insubstantial and frivolous as to be inadequate to invoke federal-question jurisdiction”).

Contrary to petitioners’ assertion, the BIA did not ignore relevant established precedent by failing to remand pursuant to Matter of Gomez, 23 I. & N. Dec. 893 (BIA 2006). In Matter of Gomez, the BIA reopened and remanded because the IJ erred in finding that the movant’s parents did not constitute qualifying relatives for purposes of cancellation of removal. See 23 I. & N. Dec. at 894.

Here, on the other hand, the BIA assumed that Natavarlal’s parents were qualifying relatives, but concluded that petitioners failed to present prima facie evidence that their removal would cause their qualifying relatives exceptional and extremely unusual hardship. Thus, the BIA did not commit legal error in declining to remand pursuant to Matter of Gomez, and petitioners’ argument that the BIA failed to follow established precedent is inadequate to invoke our jurisdiction. See Barco-Sandoval, 516 F.3d at 40.

Equally inadequate is petitioners’ conclusory assertion that the BIA overlooked or mischaracterized facts important to the determination of whether they had established their prima facie eligibility for relief because the BIA specifically considered all of the facts presented in their evidence. Therefore, because petitioners fail to raise a colorable question of law, we lack jurisdiction to consider the BIA’s denial of their motion to reopen. See 8 U.S.C. § 1252(a)(2)(B); see also Sepulveda, 407 F.3d at 64; Barco-Sandoval, 516 F.3d at 39. 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).