Liming Chen v. Eric Holder, Jr.

FILED
NOT FOR PUBLICATION JAN 07 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
LIMING CHEN, No. 10-71515
Petitioner, Agency No. A086-967-264
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 14, 2012 **
Before: HUG, FARRIS, and LEAVY, Circuit Judges.
Petitioner Liming Chen, a native and citizen of China with permanent
resident status in Panama, petitions for review from the Board of Immigration
Appeals (“BIA”) in which the BIA dismissed his appeal from the immigration
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
judge’s (“IJ”) denial of his application for asylum, withholding from removal, and
protection under Article III of the Convention Against Torture (“CAT”).1
Where the BIA conducts its own review of the evidence and law rather than
adopting the IJ’s decision, this court limits its review to the BIA’s decision, except
to the extent that the BIA expressly adopts the IJ’s opinion. Hosseini v. Gonzales,
471 F.3d 953, 957 (9th Cir. 2006). This court reviews legal questions de novo and
reviews factual findings under the “substantial evidence standard, treating them as
‘conclusive unless any reasonable adjudicator would be compelled to conclude to
the contrary.’” Lopez-Cardona v. Holder, 662 F.3d 1110, 1111 (9th Cir. 2011)
(quoting 8 U.S.C. § 1252(b)(4)(B)).
This court reviews a ruling denying asylum or withholding from removal for
substantial evidence. Li v. Ashcroft, 378 F.3d 959, 962 (9th Cir. 2004). This court
reviews the BIA’s determination of ineligibility under CAT for substantial
evidence. Sinha v. Holder, 564 F.3d 1015, 1025 (9th Cir. 2009). Our jurisdiction
is governed by 8 U.S.C. § 1252. We deny in part and dismiss in part the petition
for review.”
1
Because the parties are familiar with the facts underlying this appeal, we
do not recount the facts here.
2
Chen argues that the BIA erred by denying him asylum relief from China
and from Panama. However, Chen fails to challenge the BIA’s conclusion that he
is ineligible for asylum from China because he was firmly resettled in Panama.
Chen also fails to challenge the BIA’s conclusion that he is ineligible for asylum
from Panama because Panama is not his country of nationality and Chen is not
stateless. This court does not consider issues that the parties have failed to include
in their briefs. See Rizk v. Holder, 629 F.3d 1083, 1091 n.3 (9th Cir. 2011) (failure
to raise withholding of removal and CAT claims in opening brief considered
waiver of those issues). Chen has waived review of these issues on appeal because
he failed to brief and argue them. See id.Chen challenges the BIA’s determination that he is not entitled to relief
under withholding of removal. Chen was unable to meet the burden of proof
required for relief under asylum. Chen’s “failure to satisfy the well-founded fear
standard applicable to asylum applications necessarily preclude[s] his satisfying
the more stringent clear probability of persecution that withholding of removal
requires[.]” Alvarez-Santos v. I.N.S., 332 F.3d 1245, 1255 (9th Cir. 2003).
We lack jurisdiction to consider Chen’s request for CAT relief because he
did not exhaust this claim before the BIA. See Barron v. Ashcroft, 358 F. 3d 674,
677-78 (9th Cir. 2004).
3
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
4