JingJing Tian v. Holder ( 2014 )

11-3366-ag
Tian v. Holder
BIA
Lamb, IJ
A076 836 850
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York,
on the 9th day of April, two thousand fourteen.
PRESENT:
JON O. NEWMAN,
RALPH K. WINTER,
ROSEMARY S. POOLER,
Circuit Judges.
_____________________________________
JINGJING TIAN,
Petitioner,
v. 11-3366
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: H. Raymond Fasano, New York, New
York.
FOR RESPONDENT: Stuart F. Delery, Acting Assistant
Attorney General; Douglas E.
Ginsburg, Assistant Director; Deitz
P. Lefort, 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.
Petitioner JingJing Tian, a native and citizen of
China, seeks review of a July 22, 2011, order of the BIA,
denying her motion to remand and affirming Immigration Judge
(“IJ”) Elizabeth A. Lamb’s June 29, 2009 order of removal.
In re JingJing Tian, No. A076 836 850 (B.I.A. July 22,
2011), aff’g No. A076 836 850 (Immig. Ct. N.Y. City June 29,
2009). We assume the parties’ familiarity with the
underlying facts and procedural history in this case.
Under the circumstances of this case, we have reviewed
both the IJ’s and BIA’s opinions “for sake of completeness.”
Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir. 2008). The
applicable standards of review are well-established. See 8
U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510,
513 (2d Cir. 2009). We review the BIA’s denial of a motion
to remand for abuse of discretion. Li Yong Cao v. Dep’t of
Justice, 421 F.3d 149, 151, 156-57 (2d Cir. 2005).
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Pursuant to 8 U.S.C. § 1252(a)(2)(B)(i), we lack
jurisdiction to review the agency’s discretionary denials of
applications for adjustment of status and cancellation of
removal. Thus, where, as here, the agency’s denial of
Tian’s motion to remand is predicated on a finding that, as
a matter of discretion, she does not merit adjustment of
status and cancellation of removal, we lack jurisdiction
over Tian’s challenge to that determination. See also
8 U.S.C. § 1252(a)(2)(B)(i); Mariuta v. Gonzales, 411 F.3d
361, 365 (2d Cir. 2005) (holding that this Court lacks
jurisdiction to review the denial of reopening based on
underlying discretionary denial of adjustment of status).
Nevertheless, we retain jurisdiction over constitutional
claims and questions of law. See 8 U.S.C. § 1252(a)(2)(D).
While Tian argues that her petition sets forth
reviewable constitutional claims and questions of law, her
arguments merely “quarrel[] over the correctness of the
[BIA’s] factual findings or justification for [its]
discretionary choices,” which we lack jurisdiction to
review. Barco-Sandoval v. Gonzales, 516 F.3d 35, 42 (2d
Cir. 2008) (citations omitted). For example, Tian’s
argument that the BIA engaged in impermissible fact-finding
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by assessing the bona fides of her marriage to Chan is
misplaced, as the BIA may consider evidence presented to it
in the first instance when adjudicating a motion remand
based on new evidence. See Li Yong Cao, 421 F.3d at 156-57(noting that a motion to remand that relies on newly
available evidence is held to the substantive requirements
of a motion to reopen); see also Jian Hui Shao v. Mukasey,
546 F.3d 138, 169 (2d Cir. 2008) (noting that the BIA has a
“duty” to explicitly consider evidence in support of motions
to reopen).
Similarly, Tian’s argument that the BIA ignored
evidence of the bona fides of her marriage to Chan is
without merit. See Xiao Ji Chen v. U.S. Dep’t of Justice,
471 F.3d 315, 337 n.17 (2d Cir. 2006) (noting that the
agency is presumed to have “taken into account all of the
evidence before [it], unless the record compellingly
suggests otherwise”). Notwithstanding Tian’s suggestion to
the contrary, the agency is not required to “expressly parse
or refute on the record each individual argument or piece of
evidence offered by the petitioner.” Jian Hui Shao, 546
F.3d at 169 (quotation omitted). In denying remand, the BIA
explicitly found that Tian’s evidence concerning the bona
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fides of her marriage to Chan was insufficient due to her
failure to explain: why she did not inform the IJ that she
had separated from her husband while seeking a continuance
for him to re-file an I-130 Petition For Alien Relative on
her behalf; the Department of Homeland Security’s contention
that she submitted a fraudulent divorce decree for her
marriage in China; or how she was able to quickly obtain a
divorce from her husband in China to facilitate a subsequent
marriage to another U.S. citizen when she had been unable to
do so during the continuances that the IJ granted from
December 2007 to June 2009.
While Tian also argues that the BIA applied an overly
rigorous standard to her motion to remand, we reject this
attempt to frame a disagreement over the agency’s exercise
of discretion as a challenge to the applicable legal
standard. See, e.g., Barco-Sandoval, 516 F.3d at 42 (“We
conclude that, despite the nomenclature used by
Barco-Sandoval, his assertion that he should have obtained
cancellation of removal under the applicable legal standard
constitutes a mere quarrel over the correctness of the
factual findings or justification for the discretionary
choices made by the agency, a quarrel that we lack
jurisdiction to review.” (quotation omitted)).
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For the foregoing reasons, the petition for review is
DISMISSED, as we lack jurisdiction over Tian’s challenges to
the BIA’s denial of her motion to remand, which was based on
the BIA’s discretionary determination that she did not merit
adjustment of status and cancellation of removal. As we
have completed our review, any stay of removal that the
Court previously granted in this petition is VACATED, and
any pending motion for a stay of removal in this petition is
DISMISSED as moot. Any pending request for oral argument in
this petition is DENIED in accordance with Federal Rule of
Appellate Procedure 34(a)(2), and Second Circuit Local Rule
34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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