Filed: Feb. 03, 2010
Latest Update: Mar. 02, 2020
Summary: 07-3197-ag Chen v. Holder BIA Morace, IJ A098 775 949 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 N
Summary: 07-3197-ag Chen v. Holder BIA Morace, IJ A098 775 949 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 NO..
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07-3197-ag
Chen v. Holder
BIA
Morace, IJ
A098 775 949
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 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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 2 nd day of February, two thousand ten.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 BARRINGTON D. PARKER,
9 RICHARD C. WESLEY,
10 Circuit Judges.
11 _______________________________________
12
13 SAI YING CHEN,
14 Petitioner,
15
16 v. 07-3197-ag
17 NAC
18 ERIC H. HOLDER, JR., 1 ATTORNEY GENERAL
19 OF THE UNITED STATES, AND DEPARTMENT OF
20 JUSTICE,
21 Respondents.
22 _______________________________________
23 FOR PETITIONER: Bruno Joseph Bembi, Hempstead, New
24 York.
1
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Eric H. Holder, Jr., is
automatically substituted for former Attorney General
Alberto Gonzales as a respondent in this case.
1
2 FOR RESPONDENTS: Gregory G. Katsas, Acting Assistant
3 Attorney General, Linda Wernery,
4 Assistant Director, Sarah Maloney,
5 Attorney, Office of Immigration
6 Litigation, U.S. Department of
7 Justice, Civil Division, Washington,
8 D.C.
9 UPON DUE CONSIDERATION of this petition for review of a
10 decision of the Board of Immigration Appeals (“BIA”), it is
11 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
12 review is DENIED in part and DISMISSED in part.
13 Sai Ying Chen, a native and citizen of China, seeks
14 review of the June 29, 2007 order of the BIA: (1) affirming
15 the October 3, 2005 decision of Immigration Judge (“IJ”)
16 Philip L. Morace pretermitting her application for asylum
17 and denying her application for withholding of removal and
18 relief under the Convention Against Torture (“CAT”); and (2)
19 denying her motion to remand. In Sai Ying Chen, No. A098
20 775 949 (B.I.A. June 29, 2007), aff’g No. A098 775 949
21 (Immig. Ct. N.Y. City Oct. 3, 2005). We assume the parties’
22 familiarity with the underlying facts and procedural history
23 of the case.
24 As an initial matter, we lack jurisdiction to review
25 the IJ’s decision insofar as it pretermitted as untimely
2
1 Chen’s application for asylum. See 8 U.S.C. § 1158(a)(3).
2 While we retain jurisdiction to review constitutional claims
3 and “questions of law,” id. § 1252(a)(2)(D), Chen has made
4 no such argument. Rather, Chen challenges the probative
5 weight the IJ assigned to evidence she submitted, a matter
6 largely within the IJ’s discretion. See Xiao Ji Chen v.
7 U.S. Dep’t of Justice,
471 F.3d 315, 342 (2d Cir. 2006).
8 The balance of Chen’s arguments misinterpret both the
9 regulations and the agency’s decision. We lack jurisdiction
10 to review such frivolous arguments even when they purport to
11 be “questions of law.” See Barco-Sandoval v. Gonzales, 516
12 F.3d 35, 40, 41 n.6 (2d Cir. 2008); see also 8 U.S.C.
13 § 1158 (a)(3). We therefore dismiss these aspects the
14 petition for review.
15 In addition, Chen waived any challenge to the agency’s
16 denial of her application for withholding of removal and CAT
17 relief. Although her brief reiterates the standards for
18 each, that does not constitute a meaningful challenge. See
19 Yueqing Zhang v. Gonzales,
426 F.3d 540, 541 n.1, 545 n.7
20 (2d Cir. 2005).
21 Lastly, we review for abuse of discretion the BIA’s
22 denial of Chen’s motion to remand. Li Yong Cao v. Dep't of
3
1 Justice, 421 F.3d 149, 151 (2d Cir. 2005); see also Kaur v.
2 BIA,
413 F.3d 232, 233 (2d Cir. 2005) (per curiam).
3 Contrary to Chen’s arguments, the BIA did not abuse its
4 discretion in declining to remand her case based on the U.S.
5 Department of State’s 2005 Country Report on Human Rights
6 Practices (“2005 Country Report”) and our decision in Shou
7 Yung Guo v. Gonzales,
463 F.3d 109 (2d Cir. 2006). Chen’s
8 brief quotes portions of these two sources, but does not
9 explain how they impact her eligibility for relief.
10 Further, as the BIA noted, the 2005 Country Report does “not
11 reflect that it is more likely than not [that she] would be
12 persecuted on account of a protected ground.” See Matter of
13 J-H-S-, 24 I. & N. Dec. 196, 200 (BIA 2007); Matter of J-W-
14 S-, 24 I. & N. Dec. 185 (BIA 2007). Finally, Chen fails to
15 acknowledge that both the agency and this Court have since
16 considered the documents addressed in Shou Yung Guo v.
17 Gonzales and found that they do not demonstrate an alien’s
18 prima facie eligibility for relief. Jian Hui Shao v.
19
Mukasey, 546 F.3d at 138; Matter of J-H-S-, 24 I. & N. Dec.
20 at 200; Matter of J-W-S-, 24 I. & N. Dec. at 185. 2
2
Chen failed to respond to our order permitting the
parties to file letter briefs addressing the relevance of
Jian Hui Shao v. Mukasey, 546 F.3d 138 (2d Cir. 2008) to
this case.
4
1 Accordingly, the BIA did not abuse its discretion in
2 denying Chen’s motion to remand. See Cao, 421 F.3d at 151;
3
Kaur, 413 F.3d at 233.
4 For the foregoing reasons, the petition for review is
5 DENIED in part and DISMISSED in part. As we have completed
6 our review, any stay of removal that the Court previously
7 granted in this petition is VACATED, and any pending motion
8 for a stay of removal in this petition is DISMISSED as moot.
9 Any pending request for oral argument in this petition is
10 DENIED in accordance with Federal Rule of Appellate
11 Procedure 34(a)(2).
12
13 FOR THE COURT:
14 Catherine O’Hagan Wolfe, Clerk
15
16
17 ___________________________
5
