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.

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

New York, on the 9th 4 day of March, two thousand twelve.

5

6 PRESENT:

7 RICHARD C. WESLEY,

8 RAYMOND J. LOHIER, JR.,

9 SUSAN L. CARNEY,

10 Circuit Judges.

11 _________________________________________

12

13 JIA CAN WENG,

14 Petitioner, 

15

16 v. 11-168-ag

17 NAC

18 ERIC H. HOLDER, JR., UNITED STATES 

19 ATTORNEY GENERAL, 

20 Respondent.

21 _________________________________________

22

23 FOR PETITIONER: JP Sarmiento, Cleveland, OH

24

25 FOR RESPONDENT: Tony West, Assistant Attorney

26 General; Terri J. Scadron, Assistant

27 Director; Kathryn L. Deangelis,

28 Trial Attorney, Office of

29 Immigration Litigation, United

30 States Department of Justice,

31 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a

2 Board of Immigration Appeals (“BIA”) decision, it is hereby

3 ORDERED, ADJUDGED, AND DECREED, that the petition for review

4 is DENIED.

5 Petitioner Jia Can Weng, a native and citizen of the

6 People’s Republic of China, seeks review of the December 17,

7 2010 decision of the BIA dismissing for lack of jurisdiction

8 his appeal from the December 17, 2008 decision of

9 Immigration Judge (“IJ”) Douglas B. Schoppert, finding him

10 removable as charged. See In re Jia Can Weng, No. A089 250

11 122 (B.I.A. Dec. 17, 2010), dismissing the appeal of No.

12 A089 250 122 (Immig. Ct. N.Y. City Dec. 17, 2008). We

13 assume the parties’ familiarity with the underlying facts

14 and procedural history of the case.

15 Under the circumstances of this case, we have reviewed

16 both the IJ’s and the BIA’s opinions “for the sake of

17 completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.

18 2008) (per curiam). We review “de novo constitutional

19 challenges to a decision by the BIA and legal conclusions

20 drawn by [the] BIA, such as the determination that the BIA

21 lacks jurisdiction.” Mirza Ali v. Mukasey, 525 F.3d 171,

22 173 (2d Cir. 2008) (citing Arenas-Yepes v. Gonzales, 421

2
1 F.3d 111, 114 (2d Cir. 2005)). However, we review “the

2 BIA’s factual findings under the substantial evidence

3 standard.” Id. (citing Xiao Ji Chen v. U.S. Dep’t of

4 Justice, 471 F.3d 315, 333-34 (2d Cir. 2006)). We treat the

5 BIA’s factual findings as “conclusive unless any reasonable

6 adjudicator would be compelled to conclude to the contrary.”

7 Dong Zhong Zheng v. Mukasey, 552 F.3d 277, 284 (2d Cir.

8 2009) (internal quotation marks omitted); 8 U.S.C.

9 § 1252(b)(4)(B).

10 We find that the BIA did not err in dismissing Weng’s

11 appeal for lack of jurisdiction. See Matter of Shih, 20 I.

12 & N. Dec. 697 (BIA 1993); 8 C.F.R. § 1003.39. The record is

13 clear that Weng knowingly and voluntarily withdrew his

14 application for relief and waived his right to appeal. See

15 Matter of Rodriguez-Diaz, 22 I. & N. Dec. 1320 (BIA 2000). 

16 The transcript demonstrates that the IJ gave Weng and his

17 counsel an opportunity to discuss the possibility of

18 withdrawing his application to avoid the entry of a finding

19 that his claims were frivolous, and, as the BIA noted, the

20 IJ confirmed the withdrawal and waiver with Weng directly,

21 asking him whether he wished to withdraw his application,

22 whether he wished to waive his right to appeal, and whether

3
1 he had made both of those decisions voluntarily and of his

2 own free will.

3 We conclude that Weng was afforded a full and fair

4 hearing and was provided a reasonable opportunity to present

5 evidence on his own behalf. See Peter Conrad Ali v.

6 Mukasey, 529 F.3d 478, 490 (2d Cir. 2008). The record

7 reflects that the IJ admitted all of Weng’s documentary

8 evidence, that both Weng and his wife testified on direct

9 examination until Weng’s attorney stated that he had nothing

10 further, and that the IJ gave Weng’s attorney an additional

11 opportunity to elicit testimony from the couple after cross12 examination. Only after hearing both Weng’s and his wife’s

13 testimony did the IJ raise the possibility of Weng

14 withdrawing his application. Moreover, Weng does not

15 explain what more he would have offered in support of his

16 claim had he been given an opportunity to do so.

17 Finally, we reject Weng’s argument that the BIA erred

18 by failing to address his claim that the IJ denied him a

19 meaningful opportunity to present his case. The BIA

20 explicitly stated that Weng’s claim that he was forced to

21 withdraw his application was without merit. In addition,

22 the BIA’s analysis of whether Weng’s withdrawal was forced

4
1 and whether his withdrawal and waiver were voluntary are

2 more than sufficient to establish that the BIA considered

3 whether Weng was deprived of a full and fair hearing. See

4 Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008)

5 (rejecting the notion that the agency must “expressly parse

6 or refute on the record each individual argument or piece of

7 evidence offered by the petitioner” (internal quotation

8 marks omitted)).

9 For the foregoing reasons, the petition for review is

10 DENIED. As we have completed our review, any stay of

11 removal that the Court previously granted in this petition

12 is VACATED, and any pending motion for a stay of removal in

13 this petition is DISMISSED as moot. Any pending request for

14 oral argument in this petition is DENIED in accordance with

15 Federal Rule of Appellate Procedure 34(a)(2), and Second

16 Circuit Local Rule 34.1(b).

17 FOR THE COURT: 

18 Catherine O’Hagan Wolfe, Clerk

19

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