Filed: Jan. 10, 2019
Latest Update: Mar. 03, 2020
Summary: 17-1020 Chen v. Whitaker BIA Poczter, IJ A206 051 199 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: 17-1020 Chen v. Whitaker BIA Poczter, IJ A206 051 199 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..
More
17-1020
Chen v. Whitaker
BIA
Poczter, IJ
A206 051 199
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 10th day of January, two thousand nineteen.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 DENNIS JACOBS,
9 DENNY CHIN,
10 Circuit Judges.
11 _____________________________________
12
13 XIAOLIN CHEN,
14 Petitioner,
15
16 v. 17-1020
17 NAC
18 MATTHEW G. WHITAKER, ACTING
19 UNITED STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Jim Li, Flushing, NY.
24
25 FOR RESPONDENT: Chad A. Readler, Acting Assistant
26 Attorney General; Carl McIntyre,
27 Assistant Director; Nancy E.
28 Friedman, Senior Litigation
29 Counsel, Office of Immigration
30 Litigation, United States
31 Department of Justice, Washington,
32 DC.
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.
5 Petitioner Xiaolin Chen, a native and citizen of the
6 People’s Republic of China, seeks review of a March 14, 2017,
7 decision of the BIA affirming a February 19, 2016, decision
8 of an Immigration Judge (“IJ”) pretermitting her asylum
9 application as untimely. In re Xiaolin Chen, No. A206 051
10 199 (B.I.A. Mar 14, 2017), aff’g No. A206 051 199 (Immig. Ct.
11 N.Y. City Feb. 19, 2016). We assume the parties’ familiarity
12 with the underlying facts and procedural history in this case.
13 We lack jurisdiction to review the agency’s pretermission
14 of Chen’s asylum application as untimely because she does not
15 raise a colorable constitutional claim or question of law.*
16 See 8 U.S.C. §§ 1158(a)(3), 1252(a)(2)(D).
17 An alien is ineligible for asylum “unless the alien
18 demonstrates by clear and convincing evidence that the
19 application has been filed within 1 year after the date of
* The decision under review is final because the IJ issued a final grant of withholding of removal
on July 12, 2018. See Herrera-Molina v. Holder, 597 F.3d 128, 132 (2d Cir. 2010) (finding
jurisdiction where petition was filed from non-final order, but agency subsequently issued final
ruling).
2
1 the alien’s arrival in the United States.” 8 U.S.C.
2 § 1158(a)(2)(B). An application may be considered outside
3 the one-year deadline, however, “if the alien demonstrates .
4 . . the existence of changed circumstances which materially
5 affect the applicant’s eligibility for asylum or
6 extraordinary circumstances relating to the delay,” id.
7 § 1158(a)(2)(D), and the application is filed “within a
8 reasonable period given those circumstances,” 8 C.F.R.
9 § 1208.4(a)(4)(ii), (a)(5).
10 Our jurisdiction to review the agency’s findings
11 regarding the timeliness of an asylum application and the
12 circumstances excusing untimeliness is limited to
13 “constitutional claims or questions of law.” See 8 U.S.C.
14 §§ 1158(a)(3), 1252(a)(2)(D). When assessing jurisdiction,
15 we “study the arguments asserted . . . to determine,
16 regardless of the rhetoric employed in the petition, whether
17 it merely quarrels over the correctness of the factual
18 findings or justification for the discretionary choices, in
19 which case the court would lack jurisdiction or whether it
20 instead raises a ‘constitutional claim’ or “question of law,’
21 in which case the court could exercise jurisdiction to review
22 those particular issues.” Xiao Ji Chen v. U.S. Dep’t of
3
1 Justice, 471 F.3d 315, 329 (2d Cir. 2006). For jurisdiction
2 to attach, such claims must be colorable. Barco-Sandoval v.
3 Gonzales,
516 F.3d 35, 40-41 (2d Cir. 2008). We review
4 constitutional claims and questions of law de novo. Pierre
5 v. Holder,
588 F.3d 767, 772 (2d Cir. 2009).
6 Chen argues that the agency erred as a matter of law in
7 pretermitting asylum by deeming her father’s arrest in July
8 2012 to be the date of her changed circumstances, rather than
9 when her brother told her in early 2013 that Chinese
10 authorities were seeking her out. This argument that the IJ
11 erred in determining when changed circumstances that
12 materially affected Chen’s asylum eligibility occurred
13 “merely quarrels over the correctness of the factual findings
14 or justification for the discretionary choices,” which we do
15 not have jurisdiction to review. Xiao Ji
Chen, 471 F.3d at
16 329; see also Weinong Lin v. Holder,
763 F.3d 244, 249 (2d
17 Cir. 2014) (holding that agency must consider specific
18 circumstances to determine whether “a change . . . has
19 increased the petitioner’s risk profile”).
20 Nor did Chen state a colorable due process claim, which
21 requires a showing “that she was denied a full and fair
22 opportunity to present her claims” or “that the IJ or BIA
4
1 otherwise deprived her of fundamental fairness.” Xiao Ji
2 Chen v. U.S. Dep’t of Justice, 434 F.3d 144, 155 (2d Cir.
3 2006). Chen contends that the IJ deprived her of due process
4 by refusing to accept a late filed psychiatric report and
5 refusing to allow the psychiatrist to testify. However, Chen
6 did not engage a psychiatrist or submit the report until after
7 her merits hearing. Accordingly, the IJ was within her
8 discretion in declining to consider the evidence. See 8
9 C.F.R. § 1003.31(c) (“The Immigration Judge may set and extend
10 time limits for the filing of applications and related
11 documents and responses thereto, if any. If an application
12 or document is not filed within the time set by the
13 Immigration Judge, the opportunity to file that application
14 or document shall be deemed waived.”); Dedji v. Mukasey, 525
15 F.3d 187, 191 (2d Cir. 2008) (“[A]n IJ has broad discretion
16 to set and extend filing deadlines.”). And there was no due
17 process violation because Chen could have obtained the report
18 earlier. See Xiao Ji
Chen, 434 F.3d at 155. Moreover, Chen
19 never offered the psychiatrist as a witness and the
20 psychiatrist himself stated that he would not be available
21 for any hearings.
22 For the foregoing reasons, the petition for review is
5
1 DISMISSED. As we have completed our review, any pending
2 request for oral argument in this petition is DENIED in
3 accordance with Federal Rule of Appellate Procedure 34(a)(2),
4 and Second Circuit Local Rule 34.1(b).
5 FOR THE COURT:
6 Catherine O’Hagan Wolfe, Clerk
7
6
