Chen v. Holder , 582 F. App'x 41 ( 2014 )

12-4763
Chen v. Holder
BIA
Segal, IJ
A029 822 176
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 3rd day of November, two thousand fourteen.
5
6 PRESENT:
7 JON O. NEWMAN,
8 DENNIS JACOBS,
9 PIERRE N. LEVAL,
10 Circuit Judges.
11 _____________________________________
12
13 MING JIE CHEN,
14 Petitioner,
15
16 v. 12-4763
17 NAC
18
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Gary J. Yerman, New York, New York.
25
26 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
27 General; Ada E. Bosque, Senior
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1 Litigation Counsel; Puneet Cheema,
2 Trial Attorney, Office of
3 Immigration Litigation, United
4 States Department of Justice,
5 Washington, D.C.
6
7 UPON DUE CONSIDERATION of this petition for review of a
8 Board of Immigration Appeals (“BIA”) decision, it is hereby
9 ORDERED, ADJUDGED, AND DECREED that the petition for review
10 is DENIED in part and in part DISMISSED.
11 Ming Jie Chen, a native and citizen of China, seeks
12 review of a November 8, 2012, decision of the BIA affirming
13 the December 29, 2010, decision of Immigration Judge (“IJ”)
14 Alice Segal, denying his applications for asylum,
15 withholding of removal, relief under the Convention Against
16 Torture (“CAT”), and cancellation of removal. In re Ming
17 Jie Chen, No. A029 822 176 (B.I.A. Nov. 8, 2012), aff’g No.
18 A029 822 176 (Immig. Ct. N.Y. City Dec. 29, 2010). We
19 assume the parties’ familiarity with the underlying facts
20 and procedural history of this case.
21 Under the circumstances of this case, we have reviewed
22 the IJ’s decision as supplemented by the BIA. See Yan Chen
23 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
24 applicable standards of review are well established. See
25
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1 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d
2 510, 513 (2d Cir. 2009).
3 Asylum, Withholding of Removal, and CAT Relief
4 Chen applied for asylum, withholding of removal, and
5 CAT relief based, in part, on his claim that he fears
6 persecution because he has had two children in violation of
7 China’s population control program. For largely the same
8 reasons as this Court set forth in Jian Hui Shao v. Mukasey,
9 546 F.3d 138 (2d Cir. 2008), we find no error in the
10 agency’s determination that Chen failed to demonstrate his
11 eligibility for relief. See id. at 158-72. The testimony
12 at Chen’s hearing indicated that the elder of his two U.S.
13 citizen daughters, who was eighteen years old at the time of
14 his 2010 hearing, would not necessarily accompany him if he
15 were removed to China, and that the country conditions
16 evidence indicates that Chinese nationals with more than one
17 child do not violate the family planning policy if all but
18 one of their children reside overseas. See id. at 143, 170.
19 We further find no error in the agency’s determination
20 that Chen failed to demonstrate his eligibility for CAT
21 relief based on his illegal departure from China. See Mu
22 Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156, 159-60 (2d
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1 Cir. 2005) (finding that a petitioner is not “entitled to
2 CAT protection based solely on the fact that she is part of
3 the large class of persons who have illegally departed
4 China.”).
5 Cancellation of Removal
6 We lack jurisdiction to review the agency’s
7 “determination of whether exceptional and extremely unusual
8 hardship is present for the purposes of cancellation of
9 removal . . ., except in those rare cases where the BIA
10 decision on whether this kind of hardship exists is made
11 without rational justification or based on an erroneous
12 legal standard, or rests on fact-finding which is flawed by
13 an error of law.” Mendez v. Holder, 566 F.3d 316, 322 (2d
14 Cir. 2009) (internal quotation marks and citations omitted).
15 However, we retain jurisdiction to review constitutional
16 claims and “questions of law.” 8 U.S.C. § 1252(a)(2)(D).
17 We lack jurisdiction to review any legal argument that “does
18 not even reach the level of being colorable.” Barco-
19 Sandoval v. Gonzales, 516 F.3d 35, 40 (2d Cir. 2008).
20 Chen does not raise a colorable question of law.
21 Contrary to his contention, the agency explicitly considered
22 Chen’s alleged hardship factors cumulatively. See In re
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1 Monreal-Aguinaga, 23 I. & N. Dec. 56, 64-65 (BIA 2001). In
2 addition, because the record contains evidence to support
3 the agency’s determination that Chen’s eldest U.S. citizen
4 daughter would remain in the United States if he were
5 removed, his challenge to that finding merely quarrels with
6 the correctness of the IJ’s factual findings. See Xiao Ji
7 Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d Cir.
8 2006). Accordingly, his petition for review is dismissed
9 for lack of jurisdiction to the extent that it challenges
10 the agency’s denial of cancellation of removal. See Mendez,
11 566 F.3d at 322; see also Barco-Sandoval, 516 F.3d at 40.
12 For the foregoing reasons, this petition for review is
13 DENIED in part and in part DISMISSED. As we have completed
14 our review, any stay of removal that the Court previously
15 granted in this petitions is VACATED, and any pending motion
16 for a stay of removal in this petition is DISMISSED as moot.
17 Any pending request for oral argument in this petition is
18 DENIED in accordance with Federal Rule of Appellate
19 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).
20 FOR THE COURT:
21 Catherine O’Hagan Wolfe, Clerk
22
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