Xia Yan Lin v. Holder

12-3201
Lin v. Holder
BIA
Vomacka, IJ
A087 464 816
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 28th day of October, two thousand thirteen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 RICHARD C. WESLEY,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _____________________________________
12
13 XIA YAN LIN, MENGZHU HUANG,
14 Petitioners,
15
16 v. 12-3201
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONERS: Gary J. Yerman, Yerman & Associates,
24 LLC, New York, New York.
25
26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
27 Attorney General; Blair T. O’Connor,
28 Assistant Director; Remi Da Rocha-
1 Afodu, Trial Attorney, Office of
2 Immigration Litigation, United
3 States Department of Justice,
4 Washington, D.C.
5
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED, that the petition for review
9 is DENIED.
10 Petitioners Xia Yan Lin and Mengzhu Huang, natives and
11 citizens of China, seek review of a July 23, 2012, decision
12 of the BIA granting Lin withholding of removal and
13 affirming, in part, a September 13, 2010, decision of
14 Immigration Judge (“IJ”) Alan A. Vomacka, denying Lin’s
15 application for asylum. In re Xia Yan Lin, Mengzhu Huang,
16 Nos. A087 464 816/817 (B.I.A. July 23, 2012), aff’g Nos.
17 A087 464 816/817 (Immig. Ct. N.Y. City Sept. 10, 2010). We
18 assume the parties’ familiarity with the underlying facts
19 and procedural history in this case.
20 I. Jurisdiction
21 As an initial matter, when the petition for review was
22 filed, our jurisdiction to consider it was questionable
23 because the BIA had remanded the matter to the IJ for the
24 completion of required background investigations pursuant to
25 8 C.F.R. § 1003.47(h). See Matter of M- D-, 24 I. & N. Dec.
21 138, 141 (BIA 2007) (finding that when a case is remanded to
2 the IJ for the completion of background checks pursuant to
3 § 1003.47(h), the IJ has full jurisdiction over the case and
4 “no final order exists”); Matter of Alcantara-Perez, 23 I. &
5 N. Dec. 882, 883-85 (BIA 2006) (holding that “when a
6 proceeding is remanded to the [IJ] for background checks,”
7 the IJ will enter an order and “[t]hat order then becomes
8 the final administrative order in the case”); see also
9 Vakker v. Attorney General of U.S., 519 F.3d 143, 147 (3d
10 Cir. 2008) (holding that when the BIA remands a case to the
11 IJ for background checks, the IJ’s decision following remand
12 becomes the “final order” of removal).
13 However, it is not necessary to address whether the
14 BIA’s order in this case constituted a final order of
15 removal because proceedings before the IJ have now
16 completed. As no prejudice to the Government is apparent,
17 we may consider the petition for review on the merits.
18 See Herrera-Molina v. Holder, 597 F.3d 128, 132 (2d Cir.
19 2010) (holding that a premature petition for review from a
20 non-final order of removal may be cured, and ripen into a
21 valid petition for review, if a final order of removal has
22 been entered by the time the petition is heard, and the
23 respondent suffers no prejudice).
3
1 II. Merits
2 Under the circumstances of this case, we review the
3 IJ’s decision as modified by the BIA decision. See Xue Hong
4 Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.
5 2005). The applicable standards of review are
6 well-established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng
7 v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
8 Title 8, Section 1158(a)(3) of the United States Code
9 provides that no court shall have jurisdiction to review the
10 agency’s finding that an asylum application was untimely
11 under 8 U.S.C. § 1158(a)(2)(B). Notwithstanding that
12 provision, this Court retains jurisdiction to review
13 constitutional claims and “questions of law.” 8 U.S.C.
14 § 1252(a)(2)(D). In order to determine whether jurisdiction
15 exists in an individual case, the Court must “study the
16 arguments asserted” in a petition for review to determine,
17 “regardless of the rhetoric employed in the petition,
18 whether it merely quarrels over the correctness of the
19 factual findings or justification for the discretionary
20 choices, in which case the court would lack jurisdiction, or
21 whether it instead raises a ‘constitutional claim’ or
22 ‘question of law,’” in which case those particular issues
4
1 could be addressed. Xiao Ji Chen v. U.S. Dep’t of Justice,
2 471 F.3d 315, 329 (2d Cir. 2006).
3 Petitioners’ argument that the IJ erred by requiring
4 Lin to show that she filed the asylum application within one
5 year of her arrival in the United States by only a
6 preponderance of the evidence, rather than by clear and
7 convincing evidence, fails to raise a colorable question of
8 law. Not only does the IJ’s decision clearly reflect that he
9 applied the correct legal standard, but Petitioners are
10 essentially alleging that the IJ erred by holding Lin to a
11 lower burden of proof. See Barco-Sandoval v. Gonzales, 516
12 F.3d 35, 40 (2d Cir. 2008) (“[W]e lack jurisdiction to
13 review any legal argument that is so insubstantial and
14 frivolous as to be inadequate to invoke federal-question
15 jurisdiction.”).
16 Similarly, although Petitioners raise a question of law
17 by arguing that the IJ ignored the entry date set forth in
18 the Notice to Appear, both Notices to Appear state that
19 Huang and Lin entered at an unknown date, and Petitioners’
20 argument is apparently based on a handwritten notation,
21 reflecting the date Lin claimed to have entered at a
22 hearing. There is no support for their contention that this
23 handwritten date establishes the date of entry.
5
1 Petitioners’ challenges to the weight accorded to a
2 photocopy of Lin’s passport, and the IJ’s reliance on her
3 demeanor and an apparent inconsistency in her testimony,
4 “dispute[] the correctness of the IJ’s fact-finding” and his
5 exercise of discretion, and do not raise a constitutional
6 claim or question of law. Xiao Ji Chen, 471 F.3d at 329.
7 Finally, Petitioners’ claims that Huang raised separate
8 claims for relief, and that the REAL ID Act is inapplicable
9 to the credibility of Lin’s testimony regarding the
10 timeliness of her asylum application, are unexhausted and we
11 decline to consider them. See Lin Zhong v. U.S. Dep’t of
12 Justice, 480 F.3d 104, 107 n.1, 119-20 (2d Cir. 2007).
13 Regardless, these claims too appear to be without merit, as
14 both the IJ and BIA noted that Huang did not assert an
15 independent claim, and Petitioners conceded the
16 applicability of the REAL ID Act before the BIA.
17 For the foregoing reasons, the petition for review is
18 DENIED. As we have completed our review, any stay of
19 removal that the Court previously granted in this petition
20 is VACATED, and any pending motion for a stay of removal in
21 this petition is DISMISSED as moot. Any pending request for
22 oral argument in this petition is DENIED in accordance with
6
1 Federal Rule of Appellate Procedure 34(a)(2), and Second
2 Circuit Local Rule 34.1(b).
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe, Clerk
7