Swee Foon Chong v. Holder ( 2010 )

09-3951-ag
Chong v. Holder
BIA
Schoppert, IJ
A095 362 700
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 27 th day of August, two thousand ten.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 JON O. NEWMAN,
10 DENNY CHIN,
11 Circuit Judges.
12 _____________________________________
13
14 SWEE FOON CHONG,
15 Petitioner,
16
17 v. 09-3951-ag
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _______________________________________
23
24 FOR PETITIONER: Scott E. Bratton, Margeret
25 Wong & Associates Co., LPA,
26 Cleveland, Ohio.
27
28 FOR RESPONDENT: Tony West, Assistant Attorney
29 General; Ernesto H. Molina, Jr.,
1 Assistant Director; Gladys M.
2 Steffens Guzman, Trial Attorney,
3 Office of Immigration Litigation,
4 United States Department of Justice,
5 Washington, D.C.
6
7 UPON DUE CONSIDERATION of this petition for review of a
8 Board of Immigration Appeals (“BIA”) decision, it is hereby
9 ORDERED, ADJUDGED, AND DECREED, that the petition for review
10 is DENIED.
11 Swee Foon Chong, a native and citizen of Malaysia,
12 seeks review of an August 28, 2009 order of the BIA,
13 affirming the December 5, 2007 decision of Immigration Judge
14 (“IJ”) Douglas Schoppert, which denied her application for
15 asylum, withholding of removal, and relief under the
16 Convention Against Torture (“CAT”). In re Swee Foon Chong,
17 No. A095 362 700 (B.I.A. Aug. 28, 2009), aff’g No. A095 362
18 700 (Immig. Ct. N.Y. City Dec. 5, 2007). We assume the
19 parties’ familiarity with the underlying facts and
20 procedural history in this case.
21 Under the circumstances of this case, we review the
22 decision of the IJ as supplemented by the BIA. See Yan Chen
23 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
24 applicable standards of review are well-established. See
25 Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008);
26 Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 288-89
2
1 (2d Cir. 2007).
2 Chong expressly declines to challenge the agency’s
3 denial of her applications for asylum and CAT relief. With
4 respect to withholding of removal, the agency’s denial was
5 not in error. Chong asserts that she was deprived a full
6 and fair hearing because the IJ deprived her of the
7 opportunity to testify. “To establish a violation of due
8 process, an alien must show that she was denied a full and
9 fair opportunity to present her claims or that the IJ or BIA
10 otherwise deprived her of fundamental fairness.” Burger v.
11 Gonzales, 498 F.3d 131, 134 (2d Cir. 2007) (internal
12 quotations marks omitted). Here, the record reflects that
13 the IJ asked Chong’s counsel on multiple occasions whether
14 he wished to present anything further for consideration
15 before closing the record, and Chong’s counsel declined to
16 do so. Accordingly, Chong’s argument that the case should
17 be remanded to allow her an opportunity to testify is
18 without merit. See Hoodho v. Holder, 558 F.3d 184, 192 (2d
19 Cir. 2009) (“[A] party who voluntarily chose an attorney as
20 his representative in an action cannot avoid the
21 consequences of the acts or omissions of this freely
22 selected agent.” (internal quotation marks, alterations, and
3
1 ellipses omitted)).
2 Chong also argues that the agency erred in construing
3 her withholding of removal claim with respect to Indonesia,
4 rather than Malaysia. As the BIA reasonably found, Chong’s
5 application for relief refers exclusively to her fear of
6 persecution in Indonesia, her husband’s country of origin,
7 and she never expressed to the IJ her intention to seek
8 withholding of removal to Malaysia. Accordingly, the IJ did
9 not err in considering her application for withholding with
10 regard to Indonesia--and in denying that application, given
11 that her designated country of removal was Malaysia. See 8
12 C.F.R. § 1208.16(b) (mandating that the “burden of proof is
13 on the applicant for withholding of removal . . . to
14 establish that his or her life or freedom would be
15 threatened in the proposed country of removal” (emphasis
16 added)); see also Wangchuck v. Dep’t of Homeland Sec., 448
17 F.3d 524, 530 (2d Cir. 2006). Although Chong asserts that
18 the evidence compels the conclusion that she established her
19 eligibility for withholding of removal to Malaysia, she
20 fails to point to any such compelling evidence.
21 For the foregoing reasons, the petition for review is
22 DENIED. As we have completed our review, any stay of
4
1 removal that the Court previously granted in this petition
2 is VACATED, and any pending motion for a stay of removal in
3 this petition is DISMISSED as moot. Any pending request for
4 oral argument in this petition is DENIED in accordance with
5 Federal Rule of Appellate Procedure 34(a)(2), and Second
6 Circuit Local Rule 34.1(b).
7 FOR THE COURT:
8 Catherine O’Hagan Wolfe, Clerk
9
10
5