Yuan Liu Chao v. Board of Immigration Appeals , 395 F. App'x 725 ( 2010 )

08-0148-ag
Chao v. BIA
BIA
A077 643 059
A072 020 152
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 5 th day of October, two thousand ten.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 ROBERT D. SACK,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 ______________________________________
12
13
14 YUAN LIU CHAO, REN XIN YANG,
15 Petitioners,
16 08-0148-ag
17 v. NAC
18
19
20 BOARD OF IMMIGRATION APPEALS,
21 Respondent.
22
23 ______________________________________
24
25 FOR PETITIONERS: Donald Paragon, New York, New York.
26
27 FOR RESPONDENT: Gregory G. Katsas, Assistant
28 Attorney General, Civil Division;
29 Michele Gorden Latour, Assistant
30 Director; Brendan P. Hogan, Trial
31 Attorney, Office of Immigration
32 Litigation, Civil Division, United
33 States Department of Justice,
1 Washington, D.C.
2
3 UPON DUE CONSIDERATION of this petition for review of a
4 Board of Immigration Appeals (“BIA”) decision, it is hereby
5 ORDERED, ADJUDGED, AND DECREED that the petition for review
6 is DENIED in part and DISMISSED in part.
7 Petitioners, Yuan Liu Chao and Ren Xin Yang, natives
8 and citizens of China, seek review of a December 19, 2007,
9 order of the BIA denying their motion to reopen. In re Yuan
10 Liu Chao, Ren Xin Yang, Nos. A077 643 059, A072 020 152
11 (B.I.A. Dec. 19, 2007). We assume the parties’ familiarity
12 with the underlying facts and procedural history of the
13 case.
14 A. Motion to Reopen
15 As an initial matter, we lack jurisdiction to consider
16 petitioners’ arguments insofar as they challenge the
17 agency’s underlying decision denying their application for
18 relief from removal. See 8 U.S.C. § 1252(b)(1); Malvoisin
19 v. INS, 268 F.3d 74, 75 (2d Cir. 2001); Ke Zhen Zhao v. U.S.
20 Dep’t of Justice, 265 F.3d 83, 90 (2d Cir. 2001). Thus, the
21 only agency decision before the Court is the BIA’s December
22 2007 decision denying petitioners’ motion to reopen.
23 The applicable standards of review are well-
2
1 established. See Jian Hui Shao v. Mukasey, 546 F.3d 138,
2 168-69 (2d Cir. 2008). An alien may only file one motion to
3 reopen and must do so within 90 days of the agency’s final
4 administrative decision. 8 C.F.R. § 1003.2(c)(2).
5 Petitioners’ motion was indisputably untimely because it was
6 filed more than three years after the BIA entered its final
7 order of removal. However, the time limitation does not
8 apply to a motion to reopen seeking to apply for asylum
9 “based on changed circumstances arising in the country of
10 nationality or in the country to which deportation has been
11 ordered, if such evidence is material and was not available
12 and could not have been discovered or presented at the
13 previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii).
14 We have previously reviewed the agency’s consideration
15 of evidence similar to that which petitioners submitted and
16 have found no error in its conclusion that such evidence is
17 insufficient to establish either changed country conditions
18 excusing the time limit for filing a motion to reopen or a
19 realistic chance of forced sterilization. See Jian Hui
20 Shao, 546 F.3d at 169-73. Moreover, contrary to
21 petitioners’ argument, the BIA reasonably declined to accord
22 probative weight to the village committee notices they
3
1 submitted because the record contained inconsistent evidence
2 regarding how those documents were obtained. See Xiao Ji
3 Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 335, 342 (2d
4 Cir. 2006) (holding that the weight to be afforded to
5 documentary evidence lies largely within the discretion of
6 the tribunal). The BIA’s refusal to credit the notices was
7 all the more reasonable in light of the IJ’s underlying
8 adverse credibility determination. See Qin Wen Zheng v.
9 Gonzales, 500 F.3d 143, 146-47 (2d Cir. 2007).
10 B. Constitutional Claims
11 We lack jurisdiction to review petitioners’ unexhausted
12 argument that delays in their removal proceedings violated
13 their due process rights. Although the BIA does not have
14 jurisdiction to adjudicate constitutional issues, see United
15 States v. Gonzalez-Roque, 301 F.3d 39, 47-48 (2d Cir.2002),
16 such claims must nevertheless be administratively exhausted
17 when the BIA may decide the underlying issues of fairness of
18 process. See Theodoropoulos v. INS, 358 F.3d 162, 172-73
19 (2d Cir.2004). Therefore, the petition for review is
20 dismissed to this extent.
21 Although we lack jurisdiction to review a BIA member’s
22 decision to resolve a particular appeal unilaterally, and
4
1 without opinion, pursuant to the agency’s streamlining
2 procedures, see Kambolli v. Gonzales, 449 F.3d 454, 463 (2d
3 Cir. 2006), here, petitioners challenge the
4 constitutionality of those streamlining regulations – an
5 argument over which we retain jurisdiction, see 8 U.S.C.
6 § 1252(a)(2)(D). However, it is well-settled that the
7 agency’s streamlining regulations do not violate the Due
8 Process Clause. See Kambolli, 449 F.3d at 459 (citing Yu
9 Sheng Zhang v. U.S. Dep’t of Justice, 362 F.3d 155, 156-59
10 (2d Cir. 2004).
11 Finally, petitioners failed to exhaust their argument
12 that their removal would deprive their U.S. citizen child of
13 his right to family unity and his right to remain in the
14 United States. See Theodoropoulos, 358 F.3d at 172-73.
15 Even if petitioners’ failure to exhaust this claim raises a
16 jurisdictional question, we assume hypothetical jurisdiction
17 to consider petitioners’ argument because the
18 “jurisdictional issues are complex and the substance of the
19 claim is . . . plainly without merit.” Ivanishvili v. U.S.
20 Dep’t of Justice, 433 F.3d 332, 338 (2d Cir 2006). Indeed,
21 it is well-settled that “an infant’s status as a citizen and
22 his dependence on his alien parent do not prevent the
5
1 deportation of the alien parent.” Emciso-Cardozo v. INS,
2 504 F.2d 1252, 1253 (2d Cir. 1974).
3 For the foregoing reasons, the petition for review is
4 DENIED in part and DISMISSED in part. As we have completed
5 our review, any stay of removal that the Court previously
6 granted in this petition is VACATED, and any pending motion
7 for a stay of removal in this petition is DISMISSED as moot.
8 Any pending request for oral argument in this petition is
9 DENIED in accordance with Federal Rule of Appellate
10 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).
11 FOR THE COURT:
12 Catherine O’Hagan Wolfe, Clerk
13
14
6