Ming Xia Chen v. Holder

09-5261-ag
Chen v. Holder
BIA
Mulligan, IJ
A078 400 044
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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 29 th day of September, two thousand ten.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 GUIDO CALABRESI,
10 DEBRA ANN LIVINGSTON,
11 Circuit Judges.
12 ______________________________________
13
14 MING XIA CHEN,
15 Petitioner,
16 09-5261-ag
17 v. NAC
18
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 ______________________________________
23
24 FOR PETITIONER: Oleh R. Tustaniwsky, New York, New
25 York.
26
27
28 FOR RESPONDENT: Tony West, Assistant Attorney
29 General; Nancy E. Friedman, Senior
30 Litigation Counsel; Ann Carroll
31 Varnon, Attorney, Office of
32 Immigration Litigation, Civil
33 Division, United States Department
34 of Justice, 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
4 is DENIED.
5 Petitioner Ming Xia Chen, a native and citizen of the
6 People’s Republic of China, seeks review of a November 30,
7 2009, order of the BIA vacating immigration judge (“IJ”)
8 Thomas J. Mulligan’s February 7, 2008, order denying Chen’s
9 application for asylum, withholding, and CAT relief and
10 reinstating its prior final order of removal. In re Ming
11 Xia Chen, No. A078 400 044 (B.I.A. Nov. 30, 2009), vacating
12 No. A078 400 044 (Immig. Ct. N.Y. City Feb. 7, 2008). We
13 assume the parties’ familiarity with the underlying facts
14 and procedural history of the case.
15 To the extent the BIA reached its own determination
16 that the IJ lacked jurisdiction over Chen’s proceedings, the
17 Court reviews only the decision of the BIA. See Yan Chen v.
18 Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). Insofar as it
19 agreed with the IJ’s finding that Chen failed to demonstrate
20 a well-founded fear of persecution, the Court reviews both
21 the IJ’s and the BIA’s opinions “for the sake of
22 completeness.” See Zaman v. Mukasey, 514 F.3d 233, 237 (2d
2
1 Cir. 2008) (quoting Wangchuck v. DHS, 448 F.3d 524, 528 (2d
2 Cir. 2006)). The applicable standards of review are well-
3 established. See 8 U.S.C. § 1252(b)(4)(B); see also Yanqin
4 Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
5 The BIA found that because the IJ lacked jurisdiction
6 over Chen’s motion to reopen, the IJ had erred in reopening
7 her proceedings to consider her successive application for
8 relief. Accordingly, the BIA vacated the IJ’s decision and
9 reinstated its prior order of removal. Because Chen does
10 not raise this issue in her brief, she has waived any
11 challenge to that dispositive finding. See Gui Yin Liu v.
12 INS, 508 F.3d 716, 723 n.6 (2d Cir. 2007) (deeming arguments
13 not raised before the Court abandoned).
14 Nevertheless, we note that the BIA did not err in
15 finding that the IJ lacked jurisdiction to reopen Chen’s
16 proceedings and consider her new application for relief
17 because jurisdiction had vested with the BIA when she
18 appealed the IJ’s decision denying her original application
19 for relief. See 8 C.F.R. § 1003.23(b)(1).
20 For the foregoing reasons, the petition for review is
21 DENIED. As we have completed our review, any pending motion
22 for a stay of removal in this petition is DISMISSED as moot.
3
1 Any pending request for oral argument in this petition is
2 DENIED in accordance with Federal Rule of Appellate
3 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe, Clerk
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