Pavel ANDREENKO, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent, 480 F. App'x 61

SUMMARY ORDER Pavel Andreenko, a native of the former Soviet Union and citizen of Russia, seeks review of a March 4, 2011, order of the BIA affirming immigration judge (“IJ”) Alan Page’s November 8, 2010, denial of relief under the Convention Against Torture (“CAT”), and denial of cancellation of removal under 8 U.S.C § 1229b(a). In re Pavel Andreenko, No. [ AXXX XXX XXX ] (B.I.A. Mar. 4, 2011), aff'g No. [ AXXX XXX XXX ] (Immig. Ct. N.Y. City Nov. 8, 2010). We assume the parties’ familiarity with the underlying facts and procedural history of this case.

Under the circumstances of this case, we have reviewed the IJ’s decision as modified by the BIA. See Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). The applicable standards of review are well-established. See 8 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir.2009). Because Andreenko is removable by reason of having committed a criminal offense covered by 8 U.S.C. § 1227(a)(2)(B) (relating to convictions for controlled substances offenses), we lack jurisdiction to review the agency’s factual findings and discretionary determinations.

However, we retain jurisdiction to review, de novo, questions of law, 8 U.S.C. § 1252(a)(2)(D), including determinations as to what evidence will suffice to sustain an applicant’s burden of proof. See Noble v. Keisler, 505 F.3d 73, 77 (2d Cir.2007).

The agency did not err in finding that Andreenko failed to satisfy his burden of proof for CAT relief, as the country conditions evidence he submitted, while indicating that the Russian health care system is rife with corruption and that many health care facilities do not provide competent and adequate care, did not establish that any substandard treatment he might receive at a mental health facility would be inflicted by or with the acquiescence of Russian officials with the specific intent to cause him severe physical or mental pain or suffering, or that he will more likely than not be individually and intentionally singled out for torture by hospital officials because of his mental health afflictions.

See 8 C.F.R. § 1208.18(a)(1); Pierre v. Gonzales, 502 F.3d 109, 121-22 (2d Cir.2007) (holding that beyond evidence of inhumane conditions, a claimant can demonstrate a likelihood of torture only by providing some evidence that the authorities act with the specific intent to inflict severe physical or mental pain or suffering because of certain characteristics or medical conditions that claimant possesses).

With respect to Andreenko’s application for cancellation of removal, we lack jurisdiction to consider the reasonableness of the agency’s discretionary determination that the factors favorable to a grant of cancellation of removal were outweighed by adverse factors. See 8 U.S.C. § 1252(a)(2)(B)(I); see also De La Vega v. Gonzales, 436 F.3d 141, 144-46 (2d Cir.2006).

Although we retain jurisdiction to consider “constitutional claims or questions of law,” 8 U.S.C. § 1252(a)(2)(D), Andreenko’s argument that he was deprived of due process when the agency failed to properly balance the favorable and adverse factors is “essentially a quarrel about fact-finding or the exercise of discretion” wrapped in the “rhetoric of a constitutional claim or question of law.” See Barco-Sandoval v. Gonzales, 516 F.3d 35, 39 (2d Cir.2008) (internal quotation omitted).

Moreover, contrary to Andreenko’s argument that the IJ applied an incorrect legal standard by concluding that “it was not in the best interest of the U.S. for [him] to remain in this country,” the record confirms that the IJ identified and applied the proper legal framework. As required by Matter of C-V-T-, 22 I. & N. Dec. 7, 11-12 (BIA 1998), and Matter of Marin, 16 I. & N.

Dec. 581, 584-85 (BIA 1978), the IJ “ ‘balance[d] the adverse factors evidencing the alien’s undesirability as a permanent resident with the social and humane considerations presented in his (or her) behalf to determine whether the granting of ... relief appears in the best interest of this country, ’ ” Matter of C-V-T-, 22 I. & N. Dec. at 11 (quoting Matter of Marin, 16 I. & N. Dec. at 584-85) (emphasis added), and “enunciated in his opinion” the basis for his decision, Matter of Marin, 16 I. & N. Dec. at 585.

Accordingly, the IJ’s weighing of the applicable favorable and adverse factors to determine that granting Andreenko’s application for cancellation of removal was not in the best interest of the United States was in accordance with the proper legal standard. For the foregoing reasons, the petition for review is DENIED in part and DISMISSED in part. 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).