Jia Can Weng v. Holder ( 2012 )

11-168-ag
Weng v. Holder
BIA
Schoppert, IJ
A089 250 122
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 9th day of March, two thousand twelve.
5
6 PRESENT:
7 RICHARD C. WESLEY,
8 RAYMOND J. LOHIER, JR.,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _________________________________________
12
13 JIA CAN WENG,
14 Petitioner,
15
16 v. 11-168-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _________________________________________
22
23 FOR PETITIONER: JP Sarmiento, Cleveland, OH
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; Terri J. Scadron, Assistant
27 Director; Kathryn L. Deangelis,
28 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 DENIED.
5 Petitioner Jia Can Weng, a native and citizen of the
6 People’s Republic of China, seeks review of the December 17,
7 2010 decision of the BIA dismissing for lack of jurisdiction
8 his appeal from the December 17, 2008 decision of
9 Immigration Judge (“IJ”) Douglas B. Schoppert, finding him
10 removable as charged. See In re Jia Can Weng, No. A089 250
11 122 (B.I.A. Dec. 17, 2010), dismissing the appeal of No.
12 A089 250 122 (Immig. Ct. N.Y. City Dec. 17, 2008). We
13 assume the parties’ familiarity with the underlying facts
14 and procedural history of the case.
15 Under the circumstances of this case, we have reviewed
16 both the IJ’s and the BIA’s opinions “for the sake of
17 completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.
18 2008) (per curiam). We review “de novo constitutional
19 challenges to a decision by the BIA and legal conclusions
20 drawn by [the] BIA, such as the determination that the BIA
21 lacks jurisdiction.” Mirza Ali v. Mukasey, 525 F.3d 171,
22 173 (2d Cir. 2008) (citing Arenas-Yepes v. Gonzales, 421
2
1 F.3d 111, 114 (2d Cir. 2005)). However, we review “the
2 BIA’s factual findings under the substantial evidence
3 standard.” Id. (citing Xiao Ji Chen v. U.S. Dep’t of
4 Justice, 471 F.3d 315, 333-34 (2d Cir. 2006)). We treat the
5 BIA’s factual findings as “conclusive unless any reasonable
6 adjudicator would be compelled to conclude to the contrary.”
7 Dong Zhong Zheng v. Mukasey, 552 F.3d 277, 284 (2d Cir.
8 2009) (internal quotation marks omitted); 8 U.S.C.
9 § 1252(b)(4)(B).
10 We find that the BIA did not err in dismissing Weng’s
11 appeal for lack of jurisdiction. See Matter of Shih, 20 I.
12 & N. Dec. 697 (BIA 1993); 8 C.F.R. § 1003.39. The record is
13 clear that Weng knowingly and voluntarily withdrew his
14 application for relief and waived his right to appeal. See
15 Matter of Rodriguez-Diaz, 22 I. & N. Dec. 1320 (BIA 2000).
16 The transcript demonstrates that the IJ gave Weng and his
17 counsel an opportunity to discuss the possibility of
18 withdrawing his application to avoid the entry of a finding
19 that his claims were frivolous, and, as the BIA noted, the
20 IJ confirmed the withdrawal and waiver with Weng directly,
21 asking him whether he wished to withdraw his application,
22 whether he wished to waive his right to appeal, and whether
3
1 he had made both of those decisions voluntarily and of his
2 own free will.
3 We conclude that Weng was afforded a full and fair
4 hearing and was provided a reasonable opportunity to present
5 evidence on his own behalf. See Peter Conrad Ali v.
6 Mukasey, 529 F.3d 478, 490 (2d Cir. 2008). The record
7 reflects that the IJ admitted all of Weng’s documentary
8 evidence, that both Weng and his wife testified on direct
9 examination until Weng’s attorney stated that he had nothing
10 further, and that the IJ gave Weng’s attorney an additional
11 opportunity to elicit testimony from the couple after cross-
12 examination. Only after hearing both Weng’s and his wife’s
13 testimony did the IJ raise the possibility of Weng
14 withdrawing his application. Moreover, Weng does not
15 explain what more he would have offered in support of his
16 claim had he been given an opportunity to do so.
17 Finally, we reject Weng’s argument that the BIA erred
18 by failing to address his claim that the IJ denied him a
19 meaningful opportunity to present his case. The BIA
20 explicitly stated that Weng’s claim that he was forced to
21 withdraw his application was without merit. In addition,
22 the BIA’s analysis of whether Weng’s withdrawal was forced
4
1 and whether his withdrawal and waiver were voluntary are
2 more than sufficient to establish that the BIA considered
3 whether Weng was deprived of a full and fair hearing. See
4 Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008)
5 (rejecting the notion that the agency must “expressly parse
6 or refute on the record each individual argument or piece of
7 evidence offered by the petitioner” (internal quotation
8 marks omitted)).
9 For the foregoing reasons, the petition for review is
10 DENIED. As we have completed our review, any stay of
11 removal that the Court previously granted in this petition
12 is VACATED, and any pending motion for a stay of removal in
13 this petition is DISMISSED as moot. Any pending request for
14 oral argument in this petition is DENIED in accordance with
15 Federal Rule of Appellate Procedure 34(a)(2), and Second
16 Circuit Local Rule 34.1(b).
17 FOR THE COURT:
18 Catherine O’Hagan Wolfe, Clerk
19
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