Filed: Nov. 15, 2013
Latest Update: Mar. 02, 2020
Summary: 12-3667 Shrestha v. Holder BIA Lamb, IJ A097 511 077 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
Summary: 12-3667 Shrestha v. Holder BIA Lamb, IJ A097 511 077 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 NOT..
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12-3667
Shrestha v. Holder
BIA
Lamb, IJ
A097 511 077
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 15th day of November, two thousand thirteen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 SUSAN L. CARNEY,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 PARAS SHRESTHA,
14 Petitioner,
15
16 v. 12-3667
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Paras Shrestha, Woodside, NY.
24
25 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
26 General; Ada E. Bosque, Senior
27 Litigation Counsel; Yamileth G.
28 Davila, Trial Attorney, Office of
29 Immigration Litigation, United
30 States Department of Justice,
31 Washington, D.C.
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 DISMISSED for lack of jurisdiction.
5 Petitioner Paras Shrestha, a native and citizen of
6 Nepal, seeks review of an August 24, 2012, order of the BIA,
7 affirming the October 14, 2010, decision of Immigration
8 Judge (“IJ”) Elizabeth A. Lamb, which pretermitted his
9 application for asylum and granted withholding of removal.
10 In re Paras Shrestha, No. A097 511 077 (B.I.A. Aug. 24,
11 2012), aff’g No. A097 511 077 (Immig. Ct. New York City
12 October 14, 2010). We assume the parties’ familiarity with
13 the underlying facts and procedural history in this case.
14 Under the circumstances of this case, we have reviewed
15 the decisions of both the IJ and the BIA. See Zaman v.
16 Mukasey, 514 F.3d 233, 237 (2d Cir. 2008). The applicable
17 standards of review are well-established. See 8 U.S.C.
18 § 1252(b)(4)(B); see also Yanqin Weng v. Holder,
562 F.3d
19 510, 513 (2d Cir. 2009).
20 Title 8, Section 1158(a)(3) of the United States Code
21 provides that no court shall have jurisdiction to review the
22 agency’s finding that an asylum application was untimely
23 under 8 U.S.C. § 1158(a)(2)(B), or its finding of neither
2
1 changed nor extraordinary circumstances excusing the
2 untimeliness under 8 U.S.C. § 1158(a)(2)(D). Nevertheless,
3 we retain jurisdiction to review constitutional claims and
4 “questions of law.” 8 U.S.C. § 1252(a)(2)(D). In order to
5 determine whether jurisdiction exists in an individual case,
6 we must “study the arguments asserted” in the petition for
7 review to determine, “regardless of the rhetoric employed[,]
8 . . . whether it merely quarrels over the correctness of the
9 [agency’s] factual findings or justification for [its]
10 discretionary choices, in which case the court would lack
11 jurisdiction, or whether it instead raises a ‘constitutional
12 claim’ or ‘question of law,’” in which case those particular
13 issues may be addressed. Xiao Ji Chen v. U.S. Dep’t of
14 Justice, 471 F.3d 315, 329 (2d Cir. 2006); Gui Yin Liu v.
15 INS,
508 F.3d 716, 720 (2d Cir. 2007). We also “lack
16 jurisdiction to review any legal argument that is so
17 insubstantial and frivolous as to be inadequate to invoke
18 federal-question jurisdiction.” Barco-Sandoval v. Gonzales,
19
516 F.3d 35, 40 (2d Cir. 2008) (citations omitted).
20 In pretermitting Shrestha’s asylum application, the
21 agency determined that he had not established changed
22 circumstances on the basis of the Maoists coming to power
3
1 following the 2008 elections in Nepal. In his brief, which
2 we have liberally construed as raising the strongest
3 arguments that it suggests, Triestman v. Fed. Bureau of
4 Prisons, 470 F.3d 471, 474 (2d Cir. 2006), Shrestha contends
5 that the agency denied him due process by disregarding his
6 changed circumstances argument and supporting evidence.
7 However, contrary to Shrestha’s assertion, the agency
8 explicitly considered and rejected his claim of changed
9 circumstances on the basis of the 2008 elections, noting
10 both that Shrestha claimed a fear of the Maoists years
11 before the election and had stated that he intended to file
12 an application in 2007. Moreover, while we have recognized
13 “that the failure of an IJ to give any consideration to []
14 an undeniably probative piece of evidence amounts to a
15 denial of the traditional standards of fairness that due
16 process demands,” Dong Zong Zheng v. Mukasey,
552 F.3d 277,
17 286 (2d Cir. 2009), Shrestha points to no supporting
18 evidence in the record that was overlooked. Accordingly,
19 Shrestha’s challenge to the agency’s pretermission of
20 asylum, which merely employs the rhetoric of a
21 constitutional claim, is too “insubstantial and frivolous .
22 . . to invoke federal-question jurisdiction.”
23
Barco-Sandoval, 516 F.3d at 40 (citations omitted).
4
1 For the foregoing reasons, the petition for review is
2 DISMISSED. As we have completed our review, any stay of
3 removal that the Court previously granted in this petition
4 is VACATED, and any pending motion for a stay of removal in
5 this petition is DISMISSED as moot. Any pending request for
6 oral argument in this petition is DENIED in accordance with
7 Federal Rule of Appellate Procedure 34(a)(2), and Second
8 Circuit Local Rule 34.1(b).
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
11
5
