Filed: Oct. 21, 2020
Latest Update: Oct. 21, 2020
Summary: 18-777 Lan v. Barr BIA Sponzo, IJ A078 205 781 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
Summary: 18-777 Lan v. Barr BIA Sponzo, IJ A078 205 781 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ..
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18-777
Lan v. Barr
BIA
Sponzo, IJ
A078 205 781
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 21st day of October, two thousand twenty.
5
6 PRESENT:
7 JON O. NEWMAN,
8 DENNIS JACOBS,
9 PIERRE N. LEVAL,
10 Circuit Judges.
11 _____________________________________
12
13 LI LAN, AKA LIN LINGLI
14 Petitioner,
15
16 v. 18-777
17 NAC
18 WILLIAM P. BARR, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Theodore N. Cox, New York, NY.
24
25 FOR RESPONDENT: Joseph H. Hunt, Assistant
26 Attorney General; Carl McIntyre,
27 Assistant Director; Brooke M.
28 Maurer, Trial Attorney, Office of
29 Immigration Litigation, United
30 States Department of Justice,
31 Washington, DC.
06152016-10
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED in part and DISMISSED in part.
5 Petitioner Li Lan, a native and citizen of the People’s
6 Republic of China, seeks review of a March 8, 2018, BIA
7 decision that affirmed the April 24, 2017, decision of an
8 Immigration Judge (“IJ”) denying asylum, withholding of
9 removal, relief under the Convention Against Torture (“CAT”),
10 and cancellation of removal. In re Li Lan, No. A078 205 781
11 (B.I.A. Mar. 8, 2018), aff’g No. A078 205 781 (Immig. Ct.
12 N.Y. City Apr. 24, 2017). We assume the parties’ familiarity
13 with the underlying facts and procedural history in this case.
14 We have reviewed both the IJ’s and the BIA’s opinions “for
15 the sake of completeness.” Wangchuck v. Dep’t of Homeland
16 Sec., 448 F.3d 524, 528 (2d Cir. 2006).
17 We lack jurisdiction to review the agency’s determination
18 that Lan’s asylum application was untimely and that she did
19 not filed within a reasonable time of her changed personal
20 circumstances. See 8 U.S.C. §§ 1158(a)(3), 1252(a)(2)(D).
21 And the BIA did not err in declining to consider her argument
22 that changed country conditions excused the untimely filing
23 of her application because she did not raise that argument
2
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1 before the IJ. See Prabhudial v. Holder, 780 F.3d 553, 555-
2 56 (2d Cir. 2015) (“[T]he BIA may refuse to consider an issue
3 that could have been, but was not, raised before an IJ.”).
4 Lan applied for withholding of removal, asserting that
5 she will likely be persecuted based on the birth of her U.S.
6 citizen children in violation of China’s population control
7 program. The applicable standards of review are well
8 established. See Jian Hui Shao v. Mukasey,
546 F.3d 138,
9 157-58 (2d Cir. 2008). For largely the same reasons as set
10 forth in Jian Hui Shao, we find no error in the agency’s
11 determination that Lan failed to satisfy her burden for
12 withholding of removal. See
id. at 158-67. As with the
13 evidence in Jian Hui Shao, the evidence in Lan’s case,
14 demonstrates that family planning officials in Fujian
15 Province use fines and economic incentives to pressure
16 couples to comply with the birth control measures, abortions,
17 and sterilizations required by the policy and discusses only
18 isolated reports of force being used. See Jian Hui Shao,
546
19 F.3d at 159-66, 172.
20 Our jurisdiction to review the agency’s denial of
21 cancellation of removal based on Lan’s failure to establish
22 hardship to a qualifying relative is limited to
23 constitutional claims and questions of law, 8 U.S.C.
3
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1 §§ 1229b(b)(1)(D), 1252(a)(2)(B)(i), (D); Barco-Sandoval v.
2 Gonzales, 516 F.3d 35, 39-40 (2d Cir. 2008), which we
3 review de novo, Pierre v. Holder,
588 F.3d 767, 772 (2d
4 Cir. 2009). A question of law may arise when “some facts
5 important to the subtle determination of ‘exceptional and
6 extremely unusual hardship’ have been totally overlooked
7 and others have been seriously mischaracterized.” Mendez
8 v. Holder,
566 F.3d 316, 323 (2d Cir. 2009). For
9 jurisdiction to attach, however, such claims must be
10 colorable.
Barco-Sandoval, 516 F.3d at 40-41.
11 There is no merit to Lan’s arguments that the IJ applied
12 an overly stringent burden and ignored and mischaracterized
13 evidence in evaluating whether her removal would cause her
14 U.S.-citizen children “exceptional and extremely unusual
15 hardship” as required for cancellation of removal. 8 U.S.C.
16 § 1229b(b)(1)(D). The IJ did not hold that the hardship
17 standard could be met only by establishing that a qualifying
18 relative suffers from a serious health condition, but rather
19 identified the various factors to be considered in the
20 aggregate and evaluated Lan’s children’s educational needs
21 and ability to communicate in Chinese in addition to their
22 health issues. Further, the IJ did not conclude, as Lan
23 suggests, that her children’s health issues were not serious,
4
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1 but rather found that they would be able to receive medical
2 treatment for their conditions in China. And, as the IJ
3 found, while Lan and her mother testified that traditional
4 Chinese medicine her children received while they were in
5 China had not improved their conditions and that she had sent
6 their medicine from the United States, Lan did not submit
7 evidence that her children would be unable to obtain the
8 medicine they require in China. Finally, the IJ considered
9 Lan’s son’s skin condition and reasonably characterized it as
10 an allergy given Lan’s testimony that the dermatologist
11 believed it might be a reaction to his medication.
12 For the foregoing reasons, the petition for review is
13 DENIED in part and DISMISSED in part.
14 FOR THE COURT:
15 Catherine O’Hagan Wolfe
16 Clerk of Court
5
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