Chi Fong Yang v. Holder ( 2010 )

09-4018-ag
Yang v. Holder
BIA
A029 809 073
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 20 th day of May, two thousand ten.
5
6 PRESENT:
7 ROBERT D. SACK,
8 ROBERT A. KATZMANN,
9 RICHARD C. WESLEY,
10 Circuit Judges.
11 ______________________________________
12
13 CHI FONG YANG, ALSO KNOWN AS SADAKO
14 KANAZAWA, ALSO KNOWN AS QIFENG YANG,
15 ALSO KNOWN AS CHI FENG YANG,
16 Petitioner,
17 09-4018-ag
18 v. NAC
19
20 ERIC H. HOLDER, JR., UNITED STATES
21 ATTORNEY GENERAL,
22 Respondent.
23 ______________________________________
24
25 FOR PETITIONER: Nathaniel K. Hsieh, Chicago,
26 Illinois.
27
28 FOR RESPONDENT: Tony West, Assistant Attorney
29 General, Civil Division; Ernesto H.
30 Molina, Jr., Assistant Director,
31 Office of Immigration Litigation;
32 Jeffery R. Leist, Trial Attorney,
33 Office of Immigration Litigation,
34 Civil Division, United States
35 Department of Justice, Washington,
36 D.C.
371 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 Chi Fong Yang, a native and citizen of the
6 People’s Republic of China, seeks review of the August 31,
7 2009, order of the BIA denying his motion to reconsider. In
8 re Chi Fong Yang, No. A029 809 073 (B.I.A. Aug. 31, 2009).
9 We assume the parties’ familiarity with the underlying facts
10 and procedural history of the case.
11 Our review in this case is limited to the BIA’s August
12 2009 denial of Yang’s motion to reconsider, because that is
13 the only decision from which he filed a timely petition for
14 review. See Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d
15 83, 89-90 (2d Cir. 2001). As the government argues,
16 however, Yang waives any challenge to that decision. See
17 Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n.1, 545 n.7
18 (2d Cir. 2005). Instead, Yang’s brief is devoted to
19 challenging the findings the BIA made in denying his motion
20 to reopen, a decision that is not properly before us. See
21 Ke Zhen Zhao, 265 F.3d at 89-90. Because Yang has
22 effectively waived any challenge to the decision we are
2
1 “empowered to review,” his petition for review must be
2 denied. See Nwogu v. Gonzales, 491 F.3d 80, 84 (2d Cir.
3 2007) (denying petition where applicant failed to raise “any
4 of the issues relevant” to BIA’s denial of his motion to
5 reopen).
6 We note that even if Yang had not waived such
7 arguments, we would conclude that the BIA did not abuse its
8 discretion in denying his motion to reconsider because he
9 merely repeated the same argument that the BIA had
10 previously considered and rejected in denying his motion to
11 reopen. See Jin Ming Liu v. Gonzales, 439 F.3d 109, 111 (2d
12 Cir. 2006).
13 For the foregoing reasons, the petition for review is
14 DENIED. As we have completed our review, any stay of
15 removal that the Court previously granted in this petition
16 is VACATED, and any pending motion for a stay of removal in
17 this petition is DISMISSED as moot. Any pending request for
18 oral argument in this petition is DENIED in accordance with
19 Federal Rule of Appellate Procedure 34(a)(2), and Second
20 Circuit Local Rule 34.1(b).
21 FOR THE COURT:
22 Catherine O’Hagan Wolfe, Clerk
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