Junming Ouyang v. Sessions

16-636
Ouyang v. Sessions
BIA
Laforest, IJ
A099 156 149
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 TO 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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 31st day of March, two thousand seventeen.
5
6 PRESENT:
7 BARRINGTON D. PARKER,
8 REENA RAGGI,
9 DENNY CHIN,
10 Circuit Judges.
11 _____________________________________
12
13 JUNMING OUYANG,
14 Petitioner,
15
16 v. 16-636
17 NAC
18 JEFFERSON B. SESSIONS III, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Joshua Bardavid, New York, N.Y.
24
25 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
26 Assistant Attorney General; Cindy S.
27 Ferrier, Assistant Director; Sunah
28 Lee, Trial Attorney, Office of
29 Immigration Litigation, United
30 States Department of Justice,
31 Washington, D.C.
1 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 is
4 DISMISSED for lack of jurisdiction.
5 Petitioner Junming Ouyang, a native and citizen of China,
6 seeks review of a February 5, 2016, decision of the BIA affirming
7 an October 3, 2014, decision of an Immigration Judge (“IJ”).
8 In re Junming Ouyang, No. A099 156 149 (B.I.A. Feb. 5, 2016),
9 aff’g No. A099 156 149 (Immig. Ct. N.Y. City Oct. 3, 2014). We
10 assume the parties’ familiarity with the underlying facts and
11 procedural history in this case.
12 As an initial matter, Ouyang has abandoned review of the
13 BIA’s 2016 decision by failing to challenge it in her brief.
14 Her sole challenge on appeal is to the BIA’s determination in
15 its 2013 decision that she did not establish extraordinary
16 circumstances to excuse the untimely filing of her asylum
17 application. Under the circumstances of this case, we have
18 reviewed the IJ’s decision as modified by the BIA. See Xue Hong
19 Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).
20 An asylum application must be filed within one year of an
21 applicant’s arrival in the United States, absent changed or
22 extraordinary circumstances. 8 U.S.C. § 1158(a)(2)(B), (D).
2
1 Under § 1158(a)(3), we generally lack jurisdiction to review
2 the agency’s findings regarding changed or extraordinary
3 circumstances; however, we have jurisdiction to review
4 “constitutional claims or questions of law.” 8 U.S.C.
5 § 1252(a)(2)(D). To ascertain whether a petitioner raises
6 constitutional challenges or questions of law over which we have
7 jurisdiction, we must “study the argument[] asserted
8 [and] . . . determine, regardless of the rhetoric employed in
9 the petition, whether it merely quarrels over the correctness
10 of the factual finding or justification for the discretionary
11 choices, in which case the court would lack jurisdiction.”
12 Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d
13 Cir. 2006).
14 Ouyang’s assertion that the BIA engaged in impermissible
15 factfinding is contradicted by the record and merely employs
16 the rhetoric of a question of law to challenge the correctness
17 of the BIA’s discretionary determination that she failed to
18 establish extraordinary circumstances. See id. Although
19 Ouyang argues that the BIA improperly rejected the IJ’s finding
20 that she did not realize she was out of status while her
21 application for adjustment of status was pending between 2004
22 and 2008, the BIA did not rely on any facts that the IJ had not
3
1 already found. The BIA determined that Ouyang did not
2 establish extraordinary circumstances because she did not apply
3 for asylum until nearly 5 years after her status lapsed, which
4 was entirely consistent with the IJ’s finding that Ouyang was
5 out of status between 2004 and 2008. Although the IJ appears
6 to have concluded that Ouyang established exceptional
7 circumstances when she was out status from 2004 to 2008, based
8 on the pursuit of her application for adjustment of status, the
9 BIA disagreed and was free to do so. See Xiao Ji Chen v. U.S.
10 Dep’t of Justice, 434 F.3d 144, 154 (2d Cir. 2006) (“The plain
11 language of the statute specifically provides that ‘changed’
12 or ‘extraordinary’ circumstances must be established ‘to the
13 satisfaction of the Attorney General,’—language that ‘clearly
14 entrusts the decision to the Attorney General’s discretion.’”
15 (internal citations omitted)), amended in part on reh’g on other
16 grounds, 471 F.3d 315 (2d Cir. 2006); see also Noble v. Keisler,
17 505 F.3d 73 (2d Cir. 2007) (holding that the BIA has the
18 authority to reach a different result on discretion than that
19 reached by the Immigration Judge). Because Ouyang’s sole
20 argument is merely a challenge to the BIA’s discretionary
21 finding that she failed to establish extraordinary
4
1 circumstances, we lack jurisdiction over her petition for
2 review.
3 For the foregoing reasons, the petition for review is
4 DISMISSED for lack of jurisdiction. As we have completed our
5 review, any stay of removal that the Court previously granted
6 in this petition is VACATED. Any pending request for oral
7 argument in this petition is DENIED in accordance with Federal
8 Rule of Appellate Procedure 34(a)(2), and Second Circuit Local
9 Rule 34.1(b).
10 FOR THE COURT:
11 Catherine O’Hagan Wolfe, Clerk
5