11-168-ag Weng v. Holder BIA Schoppert, IJ A089 250 122 

### 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. At a stated term of the United States Court of Appeals**  1 **for the Second Circuit, held at the Daniel Patrick Moynihan** 2 **United States Courthouse, 500 Pearl Street, in the City of** 3 **New York, on the 9 th** **day of March, two thousand twelve.** 4 5 **PRESENT:** 6 **RICHARD C. WESLEY,** 7 **RAYMOND J. LOHIER, JR.,** 8 **SUSAN L. CARNEY,** 9 Circuit Judges **.** 10

**_________________________________________** 11 12 **JIA CAN WENG,** 13 Petitioner**,** 14 15 **v. 11-168-ag** 16 **NAC** 17 **ERIC H. HOLDER, JR., UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent **.** 20

**_________________________________________** 21 22 **FOR PETITIONER: JP Sarmiento, Cleveland, OH** 23 24 **FOR RESPONDENT: Tony West, Assistant Attorney** 25 **General; Terri J. Scadron, Assistant** 26 **Director; Kathryn L. Deangelis,** 27 **Trial Attorney, Office of** 28 **Immigration Litigation, United** 29 **States Department of Justice,** 30 **Washington, D.C.** 31UPON DUE CONSIDERATION of this petition for review of a 1 Board of Immigration Appeals (“BIA”) decision, it is hereby 2 ORDERED, ADJUDGED, AND DECREED ,that the petition for review 3 is DENIED. 4 Petitioner Jia Can Weng, a native and citizen of the 5 People’s Republic of China, seeks review of the December 17, 6 2010 decision of the BIA dismissing for lack of jurisdiction 7 his appeal from the December 17, 2008 decision of 8 Immigration Judge (“IJ”) Douglas B. Schoppert, finding him 9 removable as charged. See In re Jia Can Weng, No. A089 250 10 122 (B.I.A. Dec. 17, 2010), dismissing the appeal of No. 11 A089 250 122 (Immig. Ct. N.Y. City Dec. 17, 2008). We 12 assume the parties’ familiarity with the underlying facts 13 and procedural history of the case. 14 Under the circumstances of this case, we have reviewed 15 both the IJ’s and the BIA’s opinions “for the sake of 16 completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir. 17 2008) (per curiam). We review “de novoconstitutional 18 challenges to a decision by the BIA and legal conclusions 19 drawn by [the] BIA, such as the determination that the BIA 20 lacks jurisdiction.” Mirza Ali v. Mukasey, 525 F.3d 171, 21 173 (2d Cir. 2008) (citing Arenas-Yepes v. Gonzales , 421 22

2F.3d 111, 114 (2d Cir. 2005)). However, we review “the 1 BIA’s factual findings under the substantial evidence 2 standard.” Id. (citing Xiao Ji Chen v. U.S. Dep’t of 3 Justice , 471 F.3d 315, 333-34 (2d Cir. 2006)). We treat the 4 BIA’s factual findings as “conclusive unless any reasonable 5 adjudicator would be compelled to conclude to the contrary.” 6 Dong Zhong Zheng v. Mukasey, 552 F.3d 277, 284 (2d Cir. 7 2009) (internal quotation marks omitted); 8 U.S.C. 8 § 1252(b)(4)(B). 9 We find that the BIA did not err in dismissing Weng’s 10 appeal for lack of jurisdiction. See Matter of Shih , 20 I. 11 & N. Dec. 697 (BIA 1993); 8 C.F.R. § 1003.39. The record is 12 clear that Weng knowingly and voluntarily withdrew his 13 application for relief and waived his right to appeal. See 14 Matter of Rodriguez-Diaz , 22 I. & N. Dec. 1320 (BIA 2000). 15 The transcript demonstrates that the IJ gave Weng and his 16 counsel an opportunity to discuss the possibility of 17 withdrawing his application to avoid the entry of a finding 18 that his claims were frivolous, and, as the BIA noted, the 19 IJ confirmed the withdrawal and waiver with Weng directly, 20 asking him whether he wished to withdraw his application, 21 whether he wished to waive his right to appeal, and whether 22

3he had made both of those decisions voluntarily and of his 1 own free will. 2 We conclude that Weng was afforded a full and fair 3 hearing and was provided a reasonable opportunity to present 4 evidence on his own behalf. See Peter Conrad Ali v. 5 Mukasey, 529 F.3d 478, 490 (2d Cir. 2008). The record 6 reflects that the IJ admitted all of Weng’s documentary 7 evidence, that both Weng and his wife testified on direct 8 examination until Weng’s attorney stated that he had nothing 9 further, and that the IJ gave Weng’s attorney an additional 10 opportunity to elicit testimony from the couple after cross11 examination. Only after hearing both Weng’s and his wife’s 12 testimony did the IJ raise the possibility of Weng 13 withdrawing his application. Moreover, Weng does not 14 explain what more he would have offered in support of his 15 claim had he been given an opportunity to do so. 16 Finally, we reject Weng’s argument that the BIA erred 17 by failing to address his claim that the IJ denied him a 18 meaningful opportunity to present his case. The BIA 19 explicitly stated that Weng’s claim that he was forced to 20 withdraw his application was without merit. In addition, 21 the BIA’s analysis of whether Weng’s withdrawal was forced 22

4and whether his withdrawal and waiver were voluntary are 1 more than sufficient to establish that the BIA considered 2 whether Weng was deprived of a full and fair hearing. See 3 Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008) 4 (rejecting the notion that the agency must “expressly parse 5 or refute on the record each individual argument or piece of 6 evidence offered by the petitioner” (internal quotation 7 marks omitted)). 8 For the foregoing reasons, the petition for review is 9 DENIED. As we have completed our review, any stay of 10 removal that the Court previously granted in this petition 11 is VACATED, and any pending motion for a stay of removal in 12 this petition is DISMISSED as moot. Any pending request for 13 oral argument in this petition is DENIED in accordance with 14 Federal Rule of Appellate Procedure 34(a)(2), and Second 15 Circuit Local Rule 34.1(b). 16

FOR THE COURT: 17 Catherine O’Hagan Wolfe, Clerk 18 19

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