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17-1020 Chen v. Whitaker BIA Poczter, IJ A206 051 199 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 2 for the Second Circuit, held at the Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 10th day of January, two thousand nineteen. 5 6 PRESENT: 7 JOHN M. WALKER, JR., 8 DENNIS JACOBS, 9 DENNY CHIN, 10 Circuit Judges. 11 _____________________________________ 12 13 XIAOLIN CHEN, 14 Petitioner, 15 16 v. 17-1020 17 NAC 18 MATTHEW G. WHITAKER, ACTING 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Jim Li, Flushing, NY. 24 25 FOR RESPONDENT: Chad A. Readler, Acting Assistant 26 Attorney General; Carl McIntyre, 27 Assistant Director; Nancy E. 28 Friedman, Senior Litigation 29 Counsel, Office of Immigration 30 Litigation, United States 31 Department of Justice, Washington, 32 DC. 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 DISMISSED. 5 Petitioner Xiaolin Chen, a native and citizen of the 6 People’s Republic of China, seeks review of a March 14, 2017, 7 decision of the BIA affirming a February 19, 2016, decision 8 of an Immigration Judge (“IJ”) pretermitting her asylum 9 application as untimely. In re Xiaolin Chen, No. A206 051 10 199 (B.I.A. Mar 14, 2017), aff’g No. A206 051 199 (Immig. Ct. 11 N.Y. City Feb. 19, 2016). We assume the parties’ familiarity 12 with the underlying facts and procedural history in this case. 13 We lack jurisdiction to review the agency’s pretermission 14 of Chen’s asylum application as untimely because she does not 15 raise a colorable constitutional claim or question of law.* 16 See
8 U.S.C. §§ 1158(a)(3), 1252(a)(2)(D). 17 An alien is ineligible for asylum “unless the alien 18 demonstrates by clear and convincing evidence that the 19 application has been filed within 1 year after the date of * The decision under review is final because the IJ issued a final grant of withholding of removal on July 12, 2018. See Herrera-Molina v. Holder,
597 F.3d 128, 132 (2d Cir. 2010) (finding jurisdiction where petition was filed from non-final order, but agency subsequently issued final ruling). 2 1 the alien’s arrival in the United States.” 8 U.S.C. 2 § 1158(a)(2)(B). An application may be considered outside 3 the one-year deadline, however, “if the alien demonstrates . 4 . . the existence of changed circumstances which materially 5 affect the applicant’s eligibility for asylum or 6 extraordinary circumstances relating to the delay,” id. 7 § 1158(a)(2)(D), and the application is filed “within a 8 reasonable period given those circumstances,” 8 C.F.R. 9 § 1208.4(a)(4)(ii), (a)(5). 10 Our jurisdiction to review the agency’s findings 11 regarding the timeliness of an asylum application and the 12 circumstances excusing untimeliness is limited to 13 “constitutional claims or questions of law.” See 8 U.S.C. 14 §§ 1158(a)(3), 1252(a)(2)(D). When assessing jurisdiction, 15 we “study the arguments asserted . . . to determine, 16 regardless of the rhetoric employed in the petition, whether 17 it merely quarrels over the correctness of the factual 18 findings or justification for the discretionary choices, in 19 which case the court would lack jurisdiction or whether it 20 instead raises a ‘constitutional claim’ or “question of law,’ 21 in which case the court could exercise jurisdiction to review 22 those particular issues.” Xiao Ji Chen v. U.S. Dep’t of 3 1 Justice,
471 F.3d 315, 329 (2d Cir. 2006). For jurisdiction 2 to attach, such claims must be colorable. Barco-Sandoval v. 3 Gonzales,
516 F.3d 35, 40-41 (2d Cir. 2008). We review 4 constitutional claims and questions of law de novo. Pierre 5 v. Holder,
588 F.3d 767, 772 (2d Cir. 2009). 6 Chen argues that the agency erred as a matter of law in 7 pretermitting asylum by deeming her father’s arrest in July 8 2012 to be the date of her changed circumstances, rather than 9 when her brother told her in early 2013 that Chinese 10 authorities were seeking her out. This argument that the IJ 11 erred in determining when changed circumstances that 12 materially affected Chen’s asylum eligibility occurred 13 “merely quarrels over the correctness of the factual findings 14 or justification for the discretionary choices,” which we do 15 not have jurisdiction to review. Xiao Ji Chen,
471 F.3d at16 329; see also Weinong Lin v. Holder,
763 F.3d 244, 249 (2d 17 Cir. 2014) (holding that agency must consider specific 18 circumstances to determine whether “a change . . . has 19 increased the petitioner’s risk profile”). 20 Nor did Chen state a colorable due process claim, which 21 requires a showing “that she was denied a full and fair 22 opportunity to present her claims” or “that the IJ or BIA 4 1 otherwise deprived her of fundamental fairness.” Xiao Ji 2 Chen v. U.S. Dep’t of Justice,
434 F.3d 144, 155 (2d Cir. 3 2006). Chen contends that the IJ deprived her of due process 4 by refusing to accept a late filed psychiatric report and 5 refusing to allow the psychiatrist to testify. However, Chen 6 did not engage a psychiatrist or submit the report until after 7 her merits hearing. Accordingly, the IJ was within her 8 discretion in declining to consider the evidence. See 8 9
C.F.R. § 1003.31(c) (“The Immigration Judge may set and extend 10 time limits for the filing of applications and related 11 documents and responses thereto, if any. If an application 12 or document is not filed within the time set by the 13 Immigration Judge, the opportunity to file that application 14 or document shall be deemed waived.”); Dedji v. Mukasey, 525
15 F.3d 187, 191 (2d Cir. 2008) (“[A]n IJ has broad discretion 16 to set and extend filing deadlines.”). And there was no due 17 process violation because Chen could have obtained the report 18 earlier. See Xiao Ji Chen,
434 F.3d at 155. Moreover, Chen 19 never offered the psychiatrist as a witness and the 20 psychiatrist himself stated that he would not be available 21 for any hearings. 22 For the foregoing reasons, the petition for review is 5 1 DISMISSED. As we have completed our review, any pending 2 request for oral argument in this petition is DENIED in 3 accordance with Federal Rule of Appellate Procedure 34(a)(2), 4 and Second Circuit Local Rule 34.1(b). 5 FOR THE COURT: 6 Catherine O’Hagan Wolfe, Clerk 7 6
Document Info
Docket Number: 17-1020
Filed Date: 1/10/2019
Precedential Status: Non-Precedential
Modified Date: 1/10/2019