Choudhry AFZAL, aka Afzal Choudhry, aka Muhammed A. Bajwa, aka A. Bajwa, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent, 536 F. App'x 160

SUMMARY ORDER Petitioner Choudhry Afzal, a native and citizen of Pakistan, seeks review of an October 23, 2012 order of the BIA, affirming the January 10, 2011 decision of Immigration Judge (“IJ”) Barbara A. Nelson, which denied his application for cancellation of removal. In re Choudhry Afzal, No. [ AXXX XXX XXX ] (B.I.A. Oct. 23, 2012), aff'g No. [ AXXX XXX XXX ] (Immig. Ct. N.Y. City Jan. 10, 2011). We assume the parties’ familiarity with the underlying facts and procedural history. Under the circumstances of this case, we review the IJ’s decision as modified by the BIA. See Xue Hong Yang v. U.S.

Dep’t of Justice, 426 F.3d 520, 522 (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). We lack jurisdiction to review the agency’s denial of an application for cancellation of removal if the denial is based on the 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).

While we retain jurisdiction to review constitutional claims and questions of law, see 8 U.S.C. § 1252(a)(2)(D), Afzal’s challenges in substance do no more than take issue with the agency’s discretionary hardship determination. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d Cir.2006). Afzal’s argument — that the agency mischaracterized or failed to consider his hardship evidence — is unsupported by the record and does not raise a question of law. See Mendez v.

Holder, 566 F.3d 316, 322-23 (2d Cir.2009); Barco-Sandoval, 516 F.3d at 42 (rejecting petitioner’s attempt to frame disagreement over the agency’s exercise of discretion as a question of law). Afzal argues that the agency committed legal error by failing to discuss explicitly the risk of kidnapping his children would face in Pakistan. However, we presume that the agency “has taken into account all of the evidence before [it], unless the record compellingly suggests otherwise”. Xiao Ji Chen, 471 F.3d at 337 n. 17.

In any event, the contention is too insubstantial to invoke our jurisdiction given his testimony that his children would remain with their mother in the U.S. if he is removed. See Barco-Sandoval, 516 F.3d at 40. Afzal asserts that the agency committed an error of law by finding that the mother of his children could work outside the home, in light of his testimony that she had problems with English. However, this assertion merely challenges “the correctness of the [agency’s] factual findings,” which we lack jurisdiction to review. Xiao Ji Chen, 471 F.3d at 329.

Afzal contends that the agency failed to consider his renewed application for adjustment of status. However, the BIA was proceeding with only his application for cancellation of removal. Afzal argues that counsel was expressing an intention to apply for cancellation of removal in addition to adjustment of status. However, the agency’s inference “is tethered to the evi-dentiary record,” so “we will accord deference to the finding.” See Siewe v. Gonzales, 480 F.3d 160, 168-69 (2d Cir.2007). Afzal cites the IJ’s affirmative duty to advise aliens of their potential eligibility for forms of relief from removal.

See 8 C.F.R. § 1240.11(a)(2). The IJ here did discuss Afzal’s eligibility for adjustment of status and stated that Afzal would likely be ineligible for relief unless United States Citizenship and Immigration Services reconsidered its finding that his prior marriage was fraudulent. For the foregoing reasons, the petition for review is DISMISSED for lack of jurisdiction in part, and DENIED 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.