08-0148-ag

Chao v. BIA

BIA

A077 643 059

A072 020 152

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 5 day of October, two thousand ten. th

5

6 PRESENT:

7 JOSÉ A. CABRANES,

8 ROBERT D. SACK,

9 DEBRA ANN LIVINGSTON,

10 Circuit Judges.

11 ______________________________________

12

13

14 YUAN LIU CHAO, REN XIN YANG,

15 Petitioners, 

16 08-0148-ag

17 v. NAC

18

19

20 BOARD OF IMMIGRATION APPEALS,

21 Respondent.

22

23 ______________________________________

24

25 FOR PETITIONERS: Donald Paragon, New York, New York.

26

27 FOR RESPONDENT: Gregory G. Katsas, Assistant

28 Attorney General, Civil Division;

29 Michele Gorden Latour, Assistant

30 Director; Brendan P. Hogan, Trial

31 Attorney, Office of Immigration

32 Litigation, Civil Division, United

33 States Department of Justice,
2

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

6 is DENIED in part and DISMISSED in part.

7 Petitioners, Yuan Liu Chao and Ren Xin Yang, natives

8 and citizens of China, seek review of a December 19, 2007,

9 order of the BIA denying their motion to reopen. In re Yuan

10 Liu Chao, Ren Xin Yang, Nos. A077 643 059, A072 020 152

11 (B.I.A. Dec. 19, 2007). We assume the parties’ familiarity

12 with the underlying facts and procedural history of the

13 case.

14 A. Motion to Reopen

15 As an initial matter, we lack jurisdiction to consider

16 petitioners’ arguments insofar as they challenge the

17 agency’s underlying decision denying their application for

18 relief from removal. See 8 U.S.C. § 1252(b)(1); Malvoisin

19 v. INS, 268 F.3d 74, 75 (2d Cir. 2001); Ke Zhen Zhao v. U.S.

20 Dep’t of Justice, 265 F.3d 83, 90 (2d Cir. 2001). Thus, the

21 only agency decision before the Court is the BIA’s December

22 2007 decision denying petitioners’ motion to reopen. 

23 The applicable standards of review are well-
3

1 established. See Jian Hui Shao v. Mukasey, 546 F.3d 138,

2 168-69 (2d Cir. 2008). An alien may only file one motion to

3 reopen and must do so within 90 days of the agency’s final

4 administrative decision. 8 C.F.R. § 1003.2(c)(2). 

5 Petitioners’ motion was indisputably untimely because it was

6 filed more than three years after the BIA entered its final

7 order of removal. However, the time limitation does not

8 apply to a motion to reopen seeking to apply for asylum

9 “based on changed circumstances arising in the country of

10 nationality or in the country to which deportation has been

11 ordered, if such evidence is material and was not available

12 and could not have been discovered or presented at the

13 previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii).

14 We have previously reviewed the agency’s consideration

15 of evidence similar to that which petitioners submitted and

16 have found no error in its conclusion that such evidence is

17 insufficient to establish either changed country conditions

18 excusing the time limit for filing a motion to reopen or a

19 realistic chance of forced sterilization. See Jian Hui

20 Shao, 546 F.3d at 169-73. Moreover, contrary to

21 petitioners’ argument, the BIA reasonably declined to accord

22 probative weight to the village committee notices they
4

1 submitted because the record contained inconsistent evidence

2 regarding how those documents were obtained. See Xiao Ji

3 Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 335, 342 (2d

4 Cir. 2006) (holding that the weight to be afforded to

5 documentary evidence lies largely within the discretion of

6 the tribunal). The BIA’s refusal to credit the notices was

7 all the more reasonable in light of the IJ’s underlying

8 adverse credibility determination. See Qin Wen Zheng v.

9 Gonzales, 500 F.3d 143, 146-47 (2d Cir. 2007). 

10 B. Constitutional Claims

11 We lack jurisdiction to review petitioners’ unexhausted

12 argument that delays in their removal proceedings violated

13 their due process rights. Although the BIA does not have

14 jurisdiction to adjudicate constitutional issues, see United

15 States v. Gonzalez-Roque, 301 F.3d 39, 47-48 (2d Cir.2002),

16 such claims must nevertheless be administratively exhausted

17 when the BIA may decide the underlying issues of fairness of

18 process. See Theodoropoulos v. INS, 358 F.3d 162, 172-73

19 (2d Cir.2004). Therefore, the petition for review is

20 dismissed to this extent. 

21 Although we lack jurisdiction to review a BIA member’s

22 decision to resolve a particular appeal unilaterally, and
5

1 without opinion, pursuant to the agency’s streamlining

2 procedures, see Kambolli v. Gonzales, 449 F.3d 454, 463 (2d

3 Cir. 2006), here, petitioners challenge the

4 constitutionality of those streamlining regulations – an

5 argument over which we retain jurisdiction, see 8 U.S.C.

6 § 1252(a)(2)(D). However, it is well-settled that the

7 agency’s streamlining regulations do not violate the Due

8 Process Clause. See Kambolli, 449 F.3d at 459 (citing Yu

9 Sheng Zhang v. U.S. Dep’t of Justice, 362 F.3d 155, 156-59

10 (2d Cir. 2004). 

11 Finally, petitioners failed to exhaust their argument

12 that their removal would deprive their U.S. citizen child of

13 his right to family unity and his right to remain in the

14 United States. See Theodoropoulos, 358 F.3d at 172-73. 

15 Even if petitioners’ failure to exhaust this claim raises a

16 jurisdictional question, we assume hypothetical jurisdiction

17 to consider petitioners’ argument because the

18 “jurisdictional issues are complex and the substance of the

19 claim is . . . plainly without merit.” Ivanishvili v. U.S.

20 Dep’t of Justice, 433 F.3d 332, 338 (2d Cir 2006). Indeed,

21 it is well-settled that “an infant’s status as a citizen and

22 his dependence on his alien parent do not prevent the
6

1 deportation of the alien parent.” Emciso-Cardozo v. INS,

2 504 F.2d 1252, 1253 (2d Cir. 1974). 

3 For the foregoing reasons, the petition for review is

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

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

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

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

8 Any pending request for oral argument in this petition is

9 DENIED in accordance with Federal Rule of Appellate

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

11 FOR THE COURT: 

12 Catherine O’Hagan Wolfe, Clerk

13

14