HENGWEN YANG, aka Heng Wen Yang, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent, 481 F. App'x 697

Petitioner Hengwen Yang, a native and citizen of China, seeks review of an April 26, 2011, order of the BIA, affirming the March 29, 2010, decision of Immigration Judge (“IJ”) Barbara A. Nelson, which denied his applications for adjustment of status and cancellation of removal. In re Hengwen Yang, No. [ AXXX XXX XXX ] (B.I.A. Apr. 26, 2011), aff'g No. [ AXXX XXX XXX ] (Immig. Ct. N.Y. City Mar. 29, 2010). We assume the parties’ familiarity with the underlying facts and procedural history in this case. Under the circumstances of this case, we have reviewed the decision of the IJ as supplemented by the BIA.

See Yan 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); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir.2009). We lack jurisdiction to review the agency’s denial of an application for cancellation of removal based on the alien’s failure to establish “exceptional and extremely unusual hardship.” See Barco-Sandoval v. Gonzales, 516 F.3d 35, 39 (2d Cir.2008); see also 8 U.S.C. § 1252(a)(2)(B).

While we retain jurisdiction to review constitutional claims and questions of law, see 8 U.S.C. § 1252(a)(2)(D), Yang’s challenge raises neither; it takes issue with the agency’s discretionary hardship determination. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329-30 (2d Cir.2006). Yang’s argument that the agency failed to consider his hardship evidence is cast in terms of a question of law, but his contentions are unsupported by the record.

For example, while Yang argues that the agency failed to consider his status as his family’s sole means of support, the agency noted that his U.S.-citizen wife (who was not employed) was physically able to maintain employment and that the record did not establish that she would be unable to adequately provide for the family. Similarly, although Yang asserts that the agency ignored the ten-year separation from his family that may result from his removal, see 8 U.S.C. § 1182(a)(9)(A)(ii)(II), the IJ noted that Yang could seek a waiver.

Further, although Yang contends that the agency failed to consider the hardship that his U.S.-citizen children would suffer adjusting to life in China, Yang represented that his wife and children would not accompany him to China if he were removed. 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.