Filed: Apr. 21, 2010
Latest Update: Mar. 02, 2020
Summary: 08-2812-ag Lao v. Holder BIA DeFonzo, IJ A098 906 053 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: 08-2812-ag Lao v. Holder BIA DeFonzo, IJ A098 906 053 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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08-2812-ag
Lao v. Holder
BIA
DeFonzo, IJ
A098 906 053
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 21 st day of April, two thousand ten.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 GUIDO CALABRESI,
10 DEBRA ANN LIVINGSTON,
11 Circuit Judges.
12 _______________________________________
13
14 CHUN HUA LAO,
15 Petitioner,
16
17 v. 08-2812-ag
18 NAC
19 ERIC H. HOLDER, JR., 1 UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 ______________________________________
23
24
25 FOR PETITIONER: Alexander K. Yu, New York, New 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
Michael B. Mukasey as the respondent in this case.
1 FOR RESPONDENT: George G. Katsas, Assistant Attorney
2 General, Leslie McKay, Assistant
3 Director, Anna E. Nelson, Trial
4 Attorney, Office of Immigration
5 Litigation, Civil Division, United
6 States Department of Justice,
7 Washington, D.C.
8
9 UPON DUE CONSIDERATION of this petition for review of a
10 Board of Immigration Appeals (“BIA”) decision, it is hereby
11 ORDERED, ADJUDGED, AND DECREED that the petition for review
12 is DISMISSED in part DENIED in part.
13 Petitioner Chun Hua Lao, a native and citizen of China,
14 seeks review of a May 13, 2008, order of the BIA denying her
15 motion to remand and affirming the May 31, 2006, decision of
16 Immigration Judge (“IJ”) Paul A. DeFonzo pretermitting her
17 application for asylum. 2 In re Chun Hua Lao, No. A0098 906
18 053 (B.I.A. May 13, 2008), aff’g No. A0098 906 053 (Immig.
19 Ct. N.Y. City May 31, 2006). We assume the parties’
20 familiarity with the underlying facts and procedural history
21 in this case.
22 As an initial matter, we lack jurisdiction to review
23 the agency’s decision insofar it pretermitted as untimely
24 Lao’s application for asylum. See 8 U.S.C. §§ 1158(a)(3),
25 1252(a)(2)(B). While we retain jurisdiction to review
2
The IJ granted Lao withholding of removal to China.
2
1 constitutional claims and “questions of law,” 8 U.S.C.
2 § 1252(a)(2)(D), Lao has made no such arguments. See Saloum
3 v. USCIS, 437 F.3d 238 (2d Cir. 2006) (stating that a
4 petitioner may not create the jurisdiction that Congress
5 chose to remove simply by cloaking an abuse of discretion
6 argument in constitutional garb). We dismiss the petition
7 for review to that extent, but proceed to consider the BIA’s
8 denial of Lao’s motion to remand.
9 A motion to remand that relies on newly available
10 evidence is held to the substantive requirements of a motion
11 to reopen. See Li Yong Cao v. U.S. Dep’t of Justice, 421
12 F.3d 149, 156-157 (2d Cir. 2005); In re Coelho, 20 I. & N.
13 Dec. 464, 471 (BIA 1992). The BIA has “broad discretion” to
14 deny a motion to remand grounded on new evidence. See Li
15 Yong
Cao, 421 F.3d at 156-157 (citing INS v. Doherty, 502
16 U.S. 314, 323,
112 S. Ct. 719,
116 L. Ed. 2d 823 (1992)).
17 Permissible reasons to deny such a motion include the
18 movant’s failure to make out a prima facie case for asylum.
19
Id. This Court reviews the BIA’s denial of a motion to
20 remand for abuse of discretion.
Id. at 157.
21 We find no error in the BIA’s refusal to remand Lao’s
22 case to the IJ based on her third pregnancy. The IJ
3
1 pretermitted Lao’s application for asylum as untimely,
2 finding that because she fled China in fear of its family
3 planning policy, the birth of her first two children was not
4 a “changed or extraordinary” circumstance excusing the
5 untimely filing of her asylum application. See 8 U.S.C.
6 § 1158(a)(2)(D). Nonetheless, the IJ granted Lao’s request
7 for withholding of removal to China. In denying Lao’s
8 motion to remand, the BIA determined that her pregnancy with
9 her third child did not “represent a change in her
10 circumstances that would materially affect her eligibility
11 for asylum.” We find no abuse of discretion in that
12 decision. See Li Yong Cao, 421 F.3d at 151.
13 For the foregoing reasons, the petition for review is
14 DISMISSED in part and DENIED in part. As we have completed
15 our review, any stay of removal that the Court previously
16 granted in this petition is VACATED, and any pending motion
17 for a stay of removal in this petition is DISMISSED as moot.
18 Any pending request for oral argument in this petition is
19 DENIED in accordance with Federal Rule of Appellate
20 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).
21 FOR THE COURT:
22 Catherine O’Hagan Wolfe, Clerk
23
24
25
4
