Wu Bing Zhang v. Lynch

13-2040
Zhang v. Lynch
BIA
Balasquide, IJ
A087 446 563
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 17th day of February, two thousand sixteen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 BARRINGTON D. PARKER,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _____________________________________
12
13 WU BING ZHANG,
14 Petitioner,
15
16 v. 13-2040
17 NAC
18 Loretta E. Lynch, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
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25 FOR PETITIONER: Michael Brown, New York, New York.
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27 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
28 General; Stephen J. Flynn, Assistant
29 Director; Lynda A. Do, Attorney;
30 Jeffrey R. Meyer, Attorney, Civil
1 Division, Office of Immigration
2 Litigation, United States Department
3 of Justice, Washington D.C.
4
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review
8 is DENIED.
9 Petitioner Wu Bing Zhang, a native and citizen of
10 China, seeks review of a May 2, 2013 decision of the BIA
11 affirming a June 3, 2011, decision of an Immigration Judge
12 (“IJ”) denying Zhang’s application for asylum, withholding
13 of removal and relief under the Convention Against Torture
14 (“CAT”). In re Wu Bing Zhang, No. A087 446 563 (B.I.A. May
15 2, 2013), aff’g No. A087 446 563 (Immig. Ct. N.Y. City June
16 3, 2011). We assume the parties’ familiarity with the
17 underlying facts and procedural history in this case.
18 Given the circumstances of this case, we have reviewed
19 both the IJ’s and the BIA’s opinions “for the sake of
20 completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.
21 2008) (per curiam). The applicable standards of review are
22 well established. See 8 U.S.C. 1252(b)(4)(B); see also
23 Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
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1 In the main, Zhang challenges the denial of his asylum
2 application as untimely. The Immigration and Nationality
3 Act strips the federal courts of jurisdiction to review the
4 agency’s finding that an asylum application was untimely. 8
5 U.S.C. §§ 1158(a)(3); 1158(a)(2)(B). Notwithstanding that
6 provision, we retain jurisdiction to review constitutional
7 claims and “questions of law” arising from untimeliness
8 determinations. 8 U.S.C. § 1252(a)(2)(D). To determine
9 whether jurisdiction exists in a particular case, we must
10 “study the arguments asserted” and ask, “regardless of the
11 rhetoric employed in the petition, whether it merely
12 quarrels over the correctness of the factual findings or
13 justification for the discretionary choices, in which case
14 the court would lack jurisdiction, or whether it instead
15 raises a ‘constitutional claim’ or ‘question of law,’” in
16 which case those particular issues could be addressed. Xiao
17 Ji Chen v. U.S. Dep't of Justice, 471 F.3d 315, 329 (2d Cir.
18 2006); see also Liu v. I.N.S., 508 F.3d 716, 720 (2d Cir.
19 2007).
20 Zhang’s arguments fall squarely into the category of
21 mere quarrels. He points to his own testimony and contends
22 that the IJ erred in three respects: by requiring
3
1 corroborating documents; by declining to credit Zhang’s
2 explanations for those documents’ unavailability; and by
3 giving insufficient weight to the one document that Zhang
4 did produce. Zhang frames these arguments as legal errors
5 committed by the IJ. At bottom, however, he contends that
6 the IJ should have given his testimony and document more
7 weight – enough to meet his burden of proof. He thus
8 “disputes the correctness of [the] IJ’s fact-finding,”an
9 issue over which this Court has no jurisdiction. Xiao Ji
10 Chen, 471 F.3d at 329.
11 Zhang also challenges the BIA’s denial of his motion to
12 remand his case to the IJ. We have jurisdiction to review
13 that decision.
14 “A motion to remand that relies on newly available
15 evidence is held to the substantive requirements of a motion
16 to reopen.” Li Yong Cao v. U.S. Dep’t of Justice, 421 F.3d
17 149, 156 (2d Cir. 2005). A motion to reopen “shall not be
18 granted unless it appears to the Board that evidence sought
19 to be offered is material and was not available and could
20 not have been discovered or presented at the former
21 hearing.” 8 C.F.R. § 1003.2(c)(1). “To prevail on the
22 motion, the movant must also establish prima facie
23 eligibility for asylum, i.e., ‘a realistic chance’ that he
4
1 will be able to establish eligibility.” Poradisova v.
2 Gonzales, 420 F.3d 70, 78 (2d Cir. 2005). This Court
3 reviews the BIA’s denial of a motion to reopen for abuse of
4 discretion, mindful that such motions are “disfavored.” Ali
5 v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006) (citing I.N.S.
6 v. Doherty, 502 U.S. 314, 322-23 (1992)).
7 The BIA did not abuse its discretion when it concluded
8 that Zhang could have presented his new submissions at his
9 merits hearing. Zhang produced four new documents with his
10 motion to remand: an affidavit and permanent resident card
11 from the friend who met him upon his arrival in New York;
12 his own affidavit; and a record from a Chinese hospital. In
13 his brief to the BIA, Zhang explained that after the merits
14 hearing, he located (and reconciled with) his friend and
15 recalled receiving treatment at a hospital in China. He did
16 not, however, explain why he could not have handled these
17 tasks prior to his merits hearing. Consequently, the BIA
18 did not abuse its discretion in denying the motion.
19 The government moves to dismiss Zhang’s petition
20 insofar as it challenges the denial of asylum, and seeks
21 summary denial of the petition insofar as it challenges the
22 denial of Zhang’s motion to remand. We have considered the
23 merits brief submitted by Zhang, and we treat the
5
1 government’s motion as a response to it. For the foregoing
2 reasons, the petition for review is DENIED and the
3 government’s motion is DENIED as moot.
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe, Clerk
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