Chun Ling Wang v. Ashcroft , 84 F. App'x 197 ( 2003 )

Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
12-23-2003
Wang v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 02-3823
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 02-3823
CHUN LING WANG,
Petitioner
v.
JOHN ASHCROFT, Attorney General
of the United States,
Respondent
Petition for Review of an Order
of the Board of Immigration Appeals
(A76-240-633)
Submitted Under Third Circuit LAR 34.1(a)
December 1, 2003
Before: SLOVITER, ALITO and FRIEDMAN,* Circuit Judges
(Filed: December 23, 2003 )
OPINION OF THE COURT
* Hon. Daniel M. Friedman, United States Senior Circuit Judge for the Federal
Circuit, sitting by designation.
SLOVITER, Circuit Judge.
Petitioner Chun Ling Wang petitions for review of an order of the Board of
Immigration Appeals (“BIA”) for his removal. Wang raises two issues: 1) whether the
BIA’s affirmance without opinion of the Immigration Judge’s (“IJ’s”) decision satisfied
the condition set out in 8 C.F.R. § 3.1(a)(7)(ii); and 2) whether failure of the BIA to
satisfy these conditions constitutes a violation of his due process rights.
It is not clear whether Wang is challenging the procedure adopted by the BIA
incorporated in its streamlining regulations. If that is his challenge, this Court has
recently sustained the validity of the streamlining regulations in our en banc opinion in
Dia v. Ashcroft, No. 02-2460. If, instead, Wang is arguing that this was an inappropriate
case for the BIA to apply the streamlining procedure, that is not subject to judicial review.
The BIA’s decision to apply the streamlining regulations to a particular case is a matter
committed to its discretion and is unreviewable. On the other hand, if Wang is
challenging the IJ’s decision to enter a final order of removal on the ground that it is not
supported by substantial evidence, we do have jurisdiction to review that issue.
The Immigration and Nationality Act (INA) provides for withholding of removal
in certain circumstances. 8 U.S.C. § 1231(b)(3). However, the Supreme Court has stated
that the alien must demonstrate a “clear probability” of persecution in order to be eligible
for such relief. See INS v. Cardoza-Fonseca, 480 U.S. 421, 445-49 (1987). Wang’s brief
does not refer to any evidence that would support his allegations of fear of persecution.
2
That alone should be sufficient to warrant denial of his petition for review.
We consider Wang’s second issue, claiming that the transcript of his hearing is so
replete with clerical errors and omissions that it constitutes a violation of due process.
While there do seem to be some clerical errors, particularly unnecessary and unexplained
duplication, we do not believe that they reach the extreme of constituting a due process
violation. Wang has not pointed to any material omissions, which would present a more
serious problem. However, the nature of the omissions can be deduced from other
references in the hearing transcript. Assuming arguendo that there were some omissions,
possibly because they were asides and not spoken on the record, the alleged omissions to
which Wang refers do not provide the basis for his alleged fear of persecution. We agree
with the Government that any errors made were harmless or nonmaterial. Moreover, as
the Government’s brief points out, Wang failed to point out these errors in the
transcription by appealing to the Board which would have been in the position to direct
some remedial action. Inasmuch as Wang failed to exhaust his administrative remedies,
he cannot now argue that he is entitled to a remand based on the allegedly incomplete
transcript.
We see nothing fundamentally unfair in the proceeding before the IJ. We see no
reason to hold that the BIA abused its discretion in applying these streamlining
regulations in this particular case.
Accordingly, we will deny Wang’s petition for review.
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TO THE CLERK:
Please file the foregoing opinion.
/s/ Dolores K. Sloviter
Circuit Judge