08 -4 65 2- ag

Chen v. U.S. DOJ BIA Nels on, IJ A073 649 223 

### UNITE D STATES COURT OFAPPEALS FOR T HE SE COND CIRCU IT 

# SUM MARY ORDE R

RU LI NG S BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED O N ORA FT ERJAN UARY 1 , 20 07 , IS P ERMI TT ED AND I S GO VE RN ED B Y FE DE RA L RU LE 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 C ircuit 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 . 232 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 1 0 Board of Immigration Appeals (“BIA”) decision, it is hereby 1 1 ORDERED, ADJUDGED, AND DECREED that the petition for review 1 2 is DISMISSED in part DENIED in part. 1 3 Petitioner Biao Chen, a native and citizen of China, 1 4 seeks review of an August 25, 2008, order of the BIA 1 5 affirming the January 17, 2007, decision of Immigration 1 6 Judge (“IJ”) Barbara A. Nelson pretermitting his application 1 7 for asylum, and denying his applications for cancellation of 1 8 removal, withholding of removal, and relief under the 1 9 Convention Against Torture (“CAT”). In re Biao Chen , No. 2 0 A073 649 223 (B.I.A. Aug. 25, 2008), aff’g No. A073 649 223 2 1 (Immig. Ct. N.Y. City Jan. 17, 2007). We assume the 2 2 parties’ familiarity with the underlying facts and 2 3 procedural history in this case. 2 4 As an initial matter, we lack jurisdiction to review 2 5 the agency’s decision insofar it denied Chen’s application 2 6 for cancellation of removal and pretermitted as untimely his3 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 1 0 8 U.S.C. § 1252(b)(4)(B); Corovic v. Mukasey , 519 F.3d 90, 1 1 95 (2d Cir. 2008); Salimatou Bah v. Mukasey , 529 F.3d 99, 1 2 110 (2d Cir. 2008). 1 3 Substantial evidence supports the agency’s 1 4 determination that Chen failed to establish his eligibility 1 5 for withholding of removal and CAT relief based on the birth of his U.S. citizen children. See Jian Hui Shao v. Mukasey , 16 1 7 546 F.3d 138, 158-73 (2d Cir. 2008). Other than relying on the fact that the family planning policy exists, Chen fails 18 1 9 to identify any error in the agency’s determination that he failed to meet his burden. Accordingly, we are left with no 20 2 1 reason to disturb the agency’s denial of his application for 2 2 withholding of removal and CAT relief. See Paul v.4

Gonzales , 444 F.3d 148, 156 (2d Cir. 2006). 1 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 1 1 FOR THE COURT: 1 2 Catherine O’Hagan Wolfe, Clerk 13