11-4588 Wu v. Sessions BIA Nelson, IJ A088 526 075/076 

### 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 TO 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 for**  1 **the Second Circuit, held at the Thurgood Marshall United States** 2 **Courthouse, 40 Foley Square, in the City of New York, on the** 3 **9 th**  **day of August, two thousand seventeen.** 4 5 **PRESENT:** 6 **JON O. NEWMAN,** 7 **DENNIS JACOBS,** 8 **PIERRE N. LEVAL,** 9 Circuit Judges. 10

**_____________________________________** 11 12 **XIU YAN WU, YONG XIANG LIU,** 13 Petitioners **,** 14 15 **v. 11-4588** 16 **NAC** 17 18 **JEFFERSON B. SESSIONS III, UNITED** 19 **STATES ATTORNEY GENERAL,** 20 Respondent **.** 21

**_____________________________________** 22 23 **FOR PETITIONERS:** Richard Tarzia, Belle Mead, New 24 Jersey. 25 26 **FOR RESPONDENT:** Stuart F. Delery, Acting Assistant 27 Attorney General; Russell J.E. 28 Verby, Senior Litigation Counsel; 29 John D. Williams, Trial Attorney, 30 Office of Immigration Litigation, 312 10242016-18 United States Department of Justice, 1 Washington, D.C. 2 3 UPON DUE CONSIDERATION of this petition for review of a 4 Board of Immigration Appeals (“BIA”) decision, it is hereby 5 ORDERED, ADJUDGED, AND DECREED that the petition for review is 6 DENIED in part and DISMISSED in part. 7 Petitioners Xiu Yan Wu and Yong Xiang Liu, natives and 8 citizens of China, seek review of an October 5, 2011, decision 9 of the BIA affirming the October 1, 2010, decision of an 10 Immigration Judge (“IJ”) denying their application for asylum, 11 withholding of removal, and relief under the Convention Against 12

Torture (“CAT”), and denying Liu’s application for cancellation 13 of removal. In re Xiu Yan Wu, Yong Xiang Liu , Nos. A088 526 14 075/076 (B.I.A. Oct. 5, 2011), aff’g Nos. A088 526 075/076 15 (Immig. Ct. N.Y. City Oct. 1, 2010). We assume the parties’ 16 familiarity with the underlying facts and procedural history 17 of this case. 18 The applicable standards of r eview are well established. 19
See 8 U.S.C. § 1252(b)(4)(B); see also Jian Hui Shao v. Mukasey , 20 546 F.3d 138, 157-58 (2d Cir. 2008). Petitioners applied for 21 asylum and related relief based on the birth of their children 22 in the United States purportedly in violation of China’s 23 population control program. 243 10242016-18 For largely the same reasons as this Court set forth in Jian 1 Hui Shao , we find no error in the agency’s determination that 2 they failed to demonstrate a well-founded fear of persecution 3 based on the birth of their children. See 546 F.3d at 158-72. 4 That finding was dispositive of asylum, withholding of removal, 5 and CAT relief. See Paul v. Gonzales , 444 F.3d 148, 156-57 (2d 6 Cir. 2006). 7 We lack jurisdiction to review the agency’s denial of 8 cancellation of removal based on Liu’s failure to establish 9 hardship to a qualifying relative. 8 U.S.C. § 1252(a)(2)(B); 10 Barco-Sandoval v. Gonzales , 516 F.3d 35, 39-40 (2d Cir. 2008). 11 Although we retain jurisdiction to review constitutional claims 12 and questions of law, for which our review is de novo, 8 U.S.C. 13 § 1252(a)(2)(D); Pierre v. Holder , 588 F.3d 767, 772 (2d Cir. 14 2009), Liu’s argument that the agency failed to adequately 15 consider the impact his removal would have on his children’s 16 health merely quarrels with the agency’s factual findings, see 17 Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 330-31 (2d 18 Cir. 2006); see also Mendez v. Holder , 566 F.3d 316, 323 (2d 19 Cir. 2009) (“[T]he agency does not commit an ‘error of law’ every 20 time an item of evidence is not explicitly considered or is 21 described with imperfect accuracy . . . .”). Because we lack 22 jurisdiction to review the agency’s dispositive hardship 234 10242016-18 determination, see 8 U.S.C. §§ 1229b(b)(1)(D), 1252(a)(2)(B), 1 we do not reach the agency’s alternative finding that Liu failed 2 to establish the requisite physical presence for cancellation 3 of removal, see INS v. Bagamasbad , 429 U.S. 24, 25 (1976) (“As 4 a general rule courts and agencies are not required to make 5 findings on issues the decision of which is unnecessary to the 6 results they reach.”). 7 For the foregoing reasons, the petition for review is 8 DENIED in part and DISMISSED in part. 9
FOR THE COURT: 10 Catherine O’Hagan Wolfe, Clerk 11