Hang Yong Dong v. Holder , 363 F. App'x 137 ( 2010 )

09-0604-ag
Dong v. Holder
BIA
Mulligan, IJ
A088 533 297
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS
FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1
AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A
LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST
ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:
“(SUMMARY ORDER).” A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER
TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED
BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS
PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE
ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE
DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.
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 2 nd day of February, two thousand ten.
5
6 PRESENT:
7 ROBERT D. SACK,
8 PETER W. HALL,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _______________________________________
12
13 HANG YONG DONG,
14 Petitioner,
15
16 v. 09-0604-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Theodore N. Cox, New York, New York.
24
1 FOR RESPONDENT: Tony West, Assistant Attorney
2 General; Michelle Gorden Latour,
3 Assistant Director; Jessica E.
4 Sherman, Trial Attorney, Office of
5 Immigration Litigation, United
6 States Department of Justice,
7 Washington, D.C.
8
9 UPON DUE CONSIDERATION of this petition for review of a
10 Board of Immigration Appeals (“BIA”) decision, it is hereby
11 ORDERED, ADJUDGED, AND DECREED, that the petition for review
12 is DENIED.
13 Hang Yong Dong, a native and citizen of China, seeks
14 review of a February 4, 2009 order of the BIA, affirming the
15 April 28, 2008 decision of Immigration Judge (“IJ”) Thomas
16 J. Mulligan, which denied his applications for cancellation
17 of removal, asylum, withholding of removal, and relief under
18 the Convention Against Torture (“CAT”). In re Hang Yong
19 Dong, No. A088 533 297 (B.I.A. Feb. 4, 2009), aff’g No. A088
20 533 297 (Immig. Ct. N.Y. City Apr. 28, 2008). We assume the
21 parties’ familiarity with the underlying facts and
22 procedural history of this case.
23 Under the circumstances of this case, we consider both
24 the IJ’s and the BIA’s opinions “for the sake of
25 completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.
26 2008). The applicable standards of review are well-
2
1 established. See Corovic v. Mukasey, 519 F.3d 90, 95 (2d
2 Cir. 2008); Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d
3 Cir. 2008).
4 I. Application for Cancellation of Removal
5 We lack jurisdiction to review the agency’s denial of
6 Dong’s application for cancellation of removal based on his
7 failure to establish “exceptional and extremely unusual
8 hardship.” 8 U.S.C. § 1252(a)(2)(B); see also Barco-
9 Sandoval v. Gonzales, 516 F.3d 35, 39 (2d Cir. 2008). While
10 we retain jurisdiction to review constitutional claims and
11 questions of law, 8 U.S.C. § 1252(a)(2)(D), “we lack
12 jurisdiction to review any legal argument that is so
13 insubstantial and frivolous as to be inadequate to invoke
14 federal-question jurisdiction,” Barco-Sandoval, 516 F.3d at15 40. We also lack jurisdiction to review purported
16 constitutional claims or questions of law when the argument
17 “merely quarrels over the correctness of the factual
18 findings or justification for . . . discretionary choices.”
19 Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d
20 Cir. 2006). In this case, although Dong purports to raise
21 errors of law in the agency’s decisions, in substance his
22 arguments are not colorable or simply amount to challenges
3
1 of the agency’s factual findings over which we lack
2 jurisdiction. See Barco-Sandoval, 516 F.3d at 40; see also
3 Xiao Ji Chen, 471 F.3d at 329. Accordingly, we dismiss
4 Dong’s petition for review for lack of jurisdiction to the
5 extent that he challenges the agency’s denial of his
6 application for cancellation of removal.
7 II. Applications for Asylum and Withholding of Removal
8 Substantial evidence supports the agency’s finding that
9 Dong failed to establish his eligibility for asylum and
10 withholding of removal based on the birth of his U.S.
11 citizen children. See Jian Hui Shao v. Mukasey, 546 F.3d
12 138, 158-73 (2d Cir. 2008). We have previously reviewed the
13 agency’s consideration of similar evidence to that which
14 Dong submitted in this case and have found no error in its
15 conclusion that such evidence was insufficient to establish
16 an objectively reasonable fear of persecution. See id.17 Accordingly, the agency reasonably denied his applications
18 for asylum and withholding of removal. See Paul v.
19 Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).
20 III. Application for CAT Relief
21 As the government contends, Dong abandons any challenge
22 to the agency’s denial of his application for CAT relief by
23 failing to raise any such challenge in his brief to this
4
1 Court. See Anderson v. Branen, 27 F.3d 29, 30 (2d Cir.
2 1994).
3 For the foregoing reasons, the petition for review is
4 DENIED. Having completed our review, we DISMISS the
5 petitioner's pending motion for a stay of removal as moot.
6
7 FOR THE COURT:
8 Catherine O’Hagan Wolfe, Clerk
9
10
11
5