Filed: Feb. 09, 2012
Latest Update: Feb. 22, 2020
Summary: 11-1409-ag Chai v. Holder BIA Hom, IJ A088 994 664 A088 996 378 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 (
Summary: 11-1409-ag Chai v. Holder BIA Hom, IJ A088 994 664 A088 996 378 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 (W..
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11-1409-ag
Chai v. Holder
BIA
Hom, IJ
A088 994 664
A088 996 378
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 9th day of February, two thousand twelve.
PRESENT:
DENNIS JACOBS,
Chief Judge,
PETER W. HALL,
GERARD E. LYNCH,
Circuit Judges.
_____________________________________
SAU MOOI CHAI, KIN LEONG BONG,
Petitioners,
v. 11-1409-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONERS: Scott E. Bratton, Margaret Wong &
Associates, Cleveland, Ohio.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Janice K. Redfern, Senior
Litigation Counsel; Walter Bocchini,
Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED, that the petition for review
is DISMISSED in part and DENIED in part.
Petitioners Kin Leong Bong and his wife Sau Mooi Chai,
natives and citizens of Malaysia, seek review of a March 31,
2011, order of the BIA, affirming the December 18, 2008,
decision of Immigration Judge (“IJ”) Sandy K. Hom, which
denied their application for asylum, withholding of removal,
cancellation of removal, and relief under the Convention
Against Torture (“CAT”). In re Sau Mooi Chai and Kin Leong
Bong, Nos. A088 994 664/088 996 378 (B.I.A. Mar. 31, 2011),
aff’g Nos. A088 994 664/088 996 378 (Immig. Ct. N.Y. City
Dec. 18, 2008). We assume the parties’ familiarity with the
underlying facts and procedural history of the case.
On appeal, Petitioners challenge only the agency’s
denial of withholding and cancellation of removal. When a
petitioner appeals the agency’s cancellation of removal
based on the petitioner’s failure to establish “exceptional
and extremely unusual hardship,” we have jurisdiction only
to review decisions based on constitutional or other legal
issues. See 8 U.S.C. § 1252(a)(2)(B), (a)(2)(D); see also
Barco-Sandoval v. Gonzales, 516 F.3d 35, 39 (2d Cir. 2008).
2
Because the Petitioners contest only the agency’s
weighing of the evidence of hardship, we lack jurisdiction
to consider Petitioners’ challenge to the agency’s denial of
cancellation of removal. See Xiao Ji Chen v. U.S. Dep’t of
Justice, 471 F.3d 315, 329 (2d Cir. 2006). Although
Petitioners assert that the BIA applied an incorrect legal
standard by failing to consider their hardship factors in
the aggregate, we have rejected attempts to frame
disagreements over the agency’s exercise of discretion as
questions of law. See, e.g.,
Barco-Sandoval, 516 F.3d at
42. In arguing that the BIA failed to properly aggregate
their hardship factors, Petitioners ignore the IJ’s lengthy
and detailed opinion, which explicitly considered
Petitioners’ alleged hardship factors in the aggregate.
“While the argument that a discretionary decision was ‘based
on a legally erroneous standard’ raises a ‘question of law,’
we lack jurisdiction to review any legal argument that is so
insubstantial and frivolous as to be inadequate to invoke
federal-question jurisdiction.”
Barco-Sandoval, 516 F.3d at
40.
We also lack jurisdiction to consider Petitioners’
argument that the agency ignored key evidence and testimony
3
in making its hardship determination. “The agency does not
commit an ‘error of law’ every time an item of evidence is
not explicitly considered[.]” Mendez v. Holder, 566 F.3d
316, 322-23 (2d Cir. 2009) (internal quotation and citation
omitted). Although Petitioners argue that the agency
overlooked evidence concerning their daughter’s
psychological condition, as the agency noted, they “admitted
that they made no effort to determine if a psychologist was
available or not in their home country.” In addition,
although Petitioners assert that the agency ignored other
aspects of their hardship claim, such as their daughter’s
limited ability to speak Chinese and Bong’s potential loss
of employment, those factors were explicitly considered by
the agency.
Because Petitioners merely assert that “[b]ased on the
testimony and evidence submitted, they established” their
entitlement to withholding of removal, we need not consider
the agency’s denial of withholding of removal. See Yueqing
Zhang v. Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir.
2005) (noting that issues not sufficiently argued in the
briefs are considered waived and normally will not be
addressed on appeal).
4
In any event, the petition is without merit. We will
reverse the agency’s determination that a petitioner has
failed to establish a well-founded fear of persecution only
if that determination is not supported by substantial
evidence. See Gao v. Board of Immigration Appeals, 482 F.3d
122, 126 (2d Cir. 2007). Here, substantial evidence
supports the agency’s conclusion. The agency reasonably
relied on the fact that members of petitioners’ family, who
like them are ethnic Chinese and Buddhists, continue to
reside freely in Malaysia and practice their religion. The
agency thus correctly rejected petitioners’ generalized and
conclusory assertions that they feared persecution on the
basis of their religion and ethnicity.
For the foregoing reasons, the petition for review is
DISMISSED to the extent it seeks to challenge the denial of
cancellation of removal, and DENIED to the extent it
challenges the denial of withholding of removal.
FOR THE COURT:
Catherine O'Hagan Wolfe, Clerk
5
