Bourahima SAKO, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent, 513 F. App'x 118

SUMMARY ORDER Bourahima Sako, a native and citizen of Cote d’Ivoire not lawfully admitted for permanent residence in the United States, seeks review of a January 6, 2012, order of the BIA affirming the December 3, 2009, decision of an Immigration Judge (“IJ”) denying his application for cancellation of removal. In re Bourahima Sako, No. [ AXXX XXX XXX ] (B.I.A. Jan. 6, 2012), aff'g No. [ AXXX XXX XXX ] (Immig. Ct. N.Y.C. Dec. 3, 2009). We assume the parties’ familiarity with the underlying facts and procedural history in this case. We review the IJ’s decision as supplemented and modified by the BIA.

See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.2005); Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). To demonstrate eligibility for cancellation of removal, Sako must establish that his “removal would result in exceptional and extremely unusual hardship to [his] spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.” 8 U.S.C. § 1229b(b)(l)(D).

Here, the IJ concluded, and the BIA agreed, that Sako had not demonstrated that his removal would result in exceptional and extremely unusual hardship to his United States citizen daughters. We have jurisdiction to consider Sako’s argument that the BIA erred by mischar-acterizing record evidence relevant to the hardship determination. See 8 U.S.C. § 1252(a)(2)(B), (D); Mendez v. Holder, 566 F.3d 316, 322-23 (2d Cir.2009) (per curiam); see also Ilyas Khan v.

Gonzales, 495 F.3d 31, 35 (2d Cir.2007) (holding that the “analysis of whether a petition presents reviewable claims focuses on the nature of the claims raised and not on the merits of those claims”). Sako’s only reviewable argument regarding mischarac-terized evidence is that the agency mis-characterized a letter from his daughter’s doctor. Sako argues that the BIA mistakenly stated that the letter indicated that Sako’s daughter should be monitored for the presence of certain symptoms but that there was no certainty that those symptoms would occur in the future.

Sako claims that the letter in fact states that future symptoms and surgery would be inevitable. We disagree.

Sako misconstrues the doctor’s letter, which states that the doctor will “continue to follow [Sako’s daughter] along on a yearly basis” to monitor whether there are any signs of her spinal cord “re-tethering,” which is a “distinct possibility.” The letter also states that symptoms of spinal cord re-tethering could “include numbness, tingling, or bowel and bladder dysfunction” and that, if the spinal cord did re-tether, whether the re-tethering was “clinically significant” would be determined only through close monitoring of the condition.

In his decision, the IJ specifically noted that the letter indicated that there was “ ‘a distinct possibility’ ” that the spinal cord would re-tether, but that this was “not enough to show that it [wa]s a probability.” The IJ also determined that even if the spinal cord did re-tether, the doctor’s letter did not indicate that the re-tethering would cause exceptional and extremely unusual hardship to Sako’s daughter.

The IJ further found that Sako’s wife’s “equivocal” testimony was “not enough to show that there is a probability that she would leave the U.S. with the children if she had to actually face that choice.... ” The BIA affirmed the IJ’s decision on the ground that the doctor’s letter did not indicate that the symptoms of re-tethering would occur, or, if they did, that the symptoms would constitute exceptional and extremely unusual hardship.

We cannot say that the BIA or the IJ mischaracterized the evidence regarding Sako’s daughter’s medical condition, or erred in determining that Sako failed to show that his removal would cause his daughter exceptional and extremely unusual hardship. For the foregoing reasons, the petition for review is DENIED in part and DISMISSED in part. . Sako also argues that the IJ and the BIA erred in finding that the possibility that his daughters would undergo female genital mutilation ("FGM”) in Cote d’Ivoire did not constitute exceptional and extremely unusual hardship.

He asserts that the agency "mis-perceived the record" by assuming that he could be with his daughters at all times in order to prevent FGM, but fails to address the BIA’s conclusion that he did not show that his daughters would return with him to Cote d’Ivoire. Accordingly, he does not raise a constitutional claim or question of law with regard to the issue, and as a result we are without jurisdiction to consider it. See 8 U.S.C. § 1252(a)(2)(B), (D). . Sako also argues that he is a well-qualified candidate for the exercise of prosecutorial discretion.

This Court does not have jurisdiction over the Government’s exercise of prose-cutorial discretion in this case. That said, the BIA noted that its denial of cancellation of removal was "a close case,” and discretion to allow Sako to "remain in the United States and continue to function as a contributing member of this society” remains available to the Government. Cheruku v. Att’y Gen., 662 F.3d 198, 212 (3d Cir.2011) (McKee, C.J., concurring).