08-4652-ag

Chen v. U.S. DOJ

BIA

Nelson, IJ

A073 649 223

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 16 day of June, two thousand ten. th

5

6 PRESENT:

7 RALPH K. WINTER,

8 JOSÉ A. CABRANES,

9 PETER W. HALL,

10 Circuit Judges. 

11 _______________________________________

12

13 BIAO CHEN,

14 Petitioner, 

15

16 v. 08-4652-ag

17 NAC

18 U.S. DEPARTMENT OF JUSTICE, ET AL.,

19 Respondents.

20 ______________________________________

21

22 FOR PETITIONER: Pro se.

23
2

1 FOR RESPONDENTS: Michael F. Hertz, Acting Assistant

2 Attorney General, Carol Federigh,

3 Senior Litigation Counsel, Andrew B.

4 Insenga, Trial Attorney, Office of

5 Immigration Litigation, Civil

6 Division, United States Department

7 of Justice, 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 DISMISSED in part DENIED in part.

13 Petitioner Biao Chen, a native and citizen of China,

14 seeks review of an August 25, 2008, order of the BIA

15 affirming the January 17, 2007, decision of Immigration

16 Judge (“IJ”) Barbara A. Nelson pretermitting his application

17 for asylum, and denying his applications for cancellation of

18 removal, withholding of removal, and relief under the

19 Convention Against Torture (“CAT”). In re Biao Chen, No.

20 A073 649 223 (B.I.A. Aug. 25, 2008), aff’g No. A073 649 223

21 (Immig. Ct. N.Y. City Jan. 17, 2007). We assume the

22 parties’ familiarity with the underlying facts and

23 procedural history in this case.

24 As an initial matter, we lack jurisdiction to review

25 the agency’s decision insofar it denied Chen’s application

26 for cancellation of removal and pretermitted as untimely his
3

1 application for asylum. See 8 U.S.C. §§ 1158(a)(3),

2 1252(a)(2)(B). While we retain jurisdiction to review

3 constitutional claims and “questions of law,” 8 U.S.C. 

4 § 1252(a)(2)(D), Chen has made no such arguments. We

5 dismiss the petition for review to that extent. 

6 Under the circumstances of this case, we review the

7 decision of the IJ as supplemented by the BIA. See Yan Chen

8 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The

9 applicable standards of review are well-established. See

10 8 U.S.C. § 1252(b)(4)(B); Corovic v. Mukasey, 519 F.3d 90,

11 95 (2d Cir. 2008); Salimatou Bah v. Mukasey, 529 F.3d 99,

12 110 (2d Cir. 2008).

13 Substantial evidence supports the agency’s

14 determination that Chen failed to establish his eligibility

15 for withholding of removal and CAT relief based on the birth

16 of his U.S. citizen children. See Jian Hui Shao v. Mukasey,

17 546 F.3d 138, 158-73 (2d Cir. 2008). Other than relying on

18 the fact that the family planning policy exists, Chen fails

19 to identify any error in the agency’s determination that he

20 failed to meet his burden. Accordingly, we are left with no

21 reason to disturb the agency’s denial of his application for

22 withholding of removal and CAT relief. See Paul v.
4

1 Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).

2 For the foregoing reasons, the petition for review is

3 DISMISSED in part and DENIED in part. As we have completed

4 our review, any stay of removal that the Court previously

5 granted in this petition is VACATED, and any pending motion

6 for a stay of removal in this petition is DISMISSED as moot. 

7 Any pending request for oral argument in this petition is

8 DENIED in accordance with Federal Rule of Appellate

9 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).

10

11 FOR THE COURT: 

12 Catherine O’Hagan Wolfe, Clerk

13