Lenin PATINO, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent, 520 F. App'x 18

SUMMARY ORDER Petitioner Lenin Patino, a citizen of Ecuador, appeals from a decision of the BIA affirming the January 23, 2008 decision of Immigration Judge Michael W. Straus (the “IJ”), which denied his application for voluntary departure pursuant to 8 U.S.C. § 1229c and found him removable as charged. On appeal, Patino contends that (1) the IJ erred in denying, and the BIA erred in affirming the denial of, his application for voluntary departure, and (2) his prior counsel provided ineffective assistance.

We assume the parties’ familiarity with the facts and record of the prior proceedings, which we reference only as necessary to explain our decision. I. Legal Standards When, as here, “the BIA does not expressly adopt the IJ’s decision, but its brief opinion closely tracks the IJ’s reasoning, this Court may consider both the IJ’s and the BIA’s opinions for the sake of completeness.” Lecaj v. Holder, 616 F.3d 111, 114 (2d Cir.2010) (quotation marks omitted). We review factual findings under the substantial evidence standard and legal questions de novo. Id. II.

Denial of Application for Voluntary Departure Patino claims that the IJ’s fact-finding was “improper and inaccurate” and that the IJ “weighed the adverse factors in the case too heavily and did not consider relevant equitable factors.” This Court lacks jurisdiction to review a denial of discretionary relief, including a denial of a request for an order of voluntary departure under 8 U.S.C. § 1229c. See 8 U.S.C. § 1229c(f); 8 U.S.C. § 1252(a)(2)(B)(i); Carcamo v. U.S. Dep’t of Justice, 498 F.3d 94, 97 (2d Cir.2007) (“We are barred by statute from reviewing the denial of a request for voluntary departure.”).

While that jurisdictional bar does not preclude “‘review of constitutional claims or questions of law raised upon a petition for review,’ ” Carcamo, 498 F.3d at 97 (quoting 8 U.S.C. § 1252(a)(2)(D)), it does pre-elude review of a petition that “essentially disputes the correctness of an IJ’s fact-finding or the wisdom of his exercise of discretion and raises neither a constitutional claim nor a question of law,” id. (quotation marks omitted).

We reject Pa-tino’s repeated attempts to characterize the IJ’s decision as “flawed by an error of law.” He clearly challenges the agency’s exercise of discretion and presents no question of law. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 330 (2d Cir.2006) (noting that petitioner cannot overcome jurisdictional bar “by using the rhetoric of a ‘constitutional claim’ or ‘question of law’ to disguise what is essentially a quarrel about fact-finding or the exercise of discretion”).

To the extent Patino claims that the agency’s analysis was legally flawed because the agency failed to consider all of the relevant factors necessary for a grant of voluntary departure, we have jurisdiction to review that claim. See Felzcerek v. INS, 75 F.3d 112, 118 (2d Cir.1996). Nevertheless, we reject it. Although Patino correctly applied for voluntary departure under 8 U.S.C. § 1229c(

a) because the application was filed prior to the conclusion of his removal proceedings, see In re Arguelles-Campos, 22 I. & N. Dec. 811, 813 (BIA 1999), the factors that Patino claims the agency failed to consider relate to applications for voluntary departure under 8 U.S.C. § 1229c(b), which covers applications filed at the conclusion of removal proceedings. With that distinction in mind, the IJ’s refusal to grant voluntary departure on the ground that he did not merit such relief was entirely proper under § 1229c(

a) and was well within its broad discretion to do so. See In re Arguelles-Campos, 22 I. & N. Dec. at 819. III. Ineffective Assistance of Counsel Patino also contends that “[t]he ineffective assistance of [his] prior counsel ... denied [him] the opportunity to fully exhaust his legal options on appeal.” To prevail, petitioner must show deficiencies in his counsel’s performance and prejudice resulting therefrom — in other words, “that his counsel’s performance was so ineffective as to have impinged upon the fundamental fairness of the hearing.” Debeatham v.

Holder, 602 F.3d 481, 485 (2d Cir.2010) (alteration and quotation marks omitted). We reject Patino’s claim because he does not specify any relief for which he was eligible that his prior counsel failed to pursue. We have considered Patino’s remaining arguments and conclude that they are without merit. For the foregoing reasons, the petition for review is DISMISSED in part for lack of jurisdiction and DENIED in part. The pending motion for a stay of removal is denied as moot.