Kai Chen v. Holder ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-2180
KAI CHEN,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
No. 07-1921
KAI CHEN, a/k/a Di Di Huang, a/k/a Chen Kai,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petitions for Review of Orders of the Board of Immigration
Appeals.
Submitted: August 7, 2009 Decided: August 27, 2009
Before WILKINSON, NIEMEYER, and DUNCAN, Circuit Judges.
Petitions denied by unpublished per curiam opinion.
Troy Nader Moslemi, ALL PEOPLES LAW CENTER, P.A., Miami,
Florida, for Petitioner in No. 06-2180; Gary J. Yerman, YERMAN &
ASSOCIATES, New York, New York, for Petitioner in No. 07-1921.
Jeffrey S. Bucholtz, Acting Assistant Attorney General, Carol
Federighi, Senior Litigation Counsel, Jonathan Robbins, Office
of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
In these consolidated petitions for review, Kai Chen,
a native and citizen of the People’s Republic of China,
petitions for review of two separate orders of the Board of
Immigration Appeals (“Board”) (1) adopting and affirming the
immigration judge’s decision, which denied his requests for
asylum, withholding of removal, and protection under the
Convention Against Torture; and (2) denying his motion to
reopen.
In Case No. 06-2180, Chen first argues that the Board
and immigration judge erred in finding that he failed to meet
his burden of establishing his eligibility for asylum. The
record reveals, however, that the asylum application was denied
on the ground that Chen failed to establish by clear and
convincing evidence that he filed his asylum application within
one year of his arrival in the United States. We lack
jurisdiction to review this determination pursuant to 8 U.S.C.
§ 1158(a)(3) (2006), even in light of the REAL ID Act of 2005,
Pub. L. No. 109-13, 119 Stat. 231. See Gomis v. Holder, __ F.3d
__, 2009 WL 1912622, *5 (4th Cir. 2009). Given this
jurisdictional bar, we cannot review the underlying merits of
Chen’s asylum claim.
Chen also contends that the Board and immigration
judge erred in denying his request for withholding of removal.
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“Withholding of removal is available under 8 U.S.C. § 1231(b)(3)
if the alien shows that it is more likely than not that h[is]
life or freedom would be threatened in the country of removal
because of h[is] race, religion, nationality, membership in a
particular social group, or political opinion.” Gomis, __ F.3d
at __, 2009 WL 1912622 at *5; see 8 U.S.C. § 1231(b)(3) (2006).
Based on our review of the record, we find that Chen failed to
make the requisite showing before the immigration court. We
therefore uphold the denial of his request for withholding of
removal.
We also find that substantial evidence supports the
finding that Chen failed to meet the standard for relief under
the Convention Against Torture. To obtain such relief, an
applicant must establish that “it is more likely than not that
he or she would be tortured if removed to the proposed country
of removal.” 8 C.F.R. § 1208.16(c)(2) (2009). We find that
Chen failed to make the requisite showing before the immigration
court. Accordingly, we deny the petition for review in Case No.
06-2180.
In Case No. 07-1921, Chen challenges the Board’s
denial of his motion to reopen. We have reviewed the record and
the Board’s order and find no abuse of discretion. We therefore
deny the petition for review substantially for the reasons
stated by the Board. See In re: Chen (B.I.A. Aug. 31, 2007).
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We note that Chen’s argument that he is entitled to file an
untimely application for relief from removal based on changed
circumstances, see 8 U.S.C. § 1158(a)(2)(D) (2006), without
meeting the requirements for filing a motion to reopen, is
squarely foreclosed by our recent decision in Zheng v. Holder,
562 F.3d 647 (4th Cir. 2009).
Accordingly, we deny the petitions for review. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
PETITIONS DENIED
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