08 -0 14 8-ag

Chao v. BIA BIA A077 643 059 A072 020 152 

### UNITED STATES COURT OFAPPEALS FOR T HE SE COND CIRCU IT 

# SUM MARY ORDER

RU LI NG S BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON ORA FT ERJAN UARY 1 , 20 07 , IS P ERMI TT ED AND I S GOVE RN ED B Y FE DE RAL 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 5 day of October, two thousand ten. th 5 6 PRESENT: 7 JOSÉ A. CABRANES, 8 ROBERT D. SACK, 9 DEBRA ANN LIVINGSTON, 10 C ircuit 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 1 1 (B.I.A. Dec. 19, 2007). We assume the parties’ familiarity 1 2 with the underlying facts and procedural history of the 1 3 case. 14 A. Motion to Reopen 1 5 As an initial matter, we lack jurisdiction to consider 1 6 petitioners’ arguments insofar as they challenge the 1 7 agency’s underlying decision denying their application for 1 8 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 2 1 only agency decision before the Court is the BIA’s December 2 2 2007 decision denying petitioners’ motion to reopen. 2 3 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 1 0 nationality or in the country to which deportation has been 1 1 ordered, if such evidence is material and was not available 1 2 and could not have been discovered or presented at the 1 3 previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii). 1 4 We have previously reviewed the agency’s consideration 1 5 of evidence similar to that which petitioners submitted and 1 6 have found no error in its conclusion that such evidence is 1 7 insufficient to establish either changed country conditions 1 8 excusing the time limit for filing a motion to reopen or a 1 9 realistic chance of forced sterilization. See Jian Hui 20 Shao , 546 F.3d at 169-73. Moreover, contrary to 2 1 petitioners’ argument, the BIA reasonably declined to accord 2 2 probative weight to the village committee notices they4 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 1 1 We lack jurisdiction to review petitioners’ unexhausted 1 2 argument that delays in their removal proceedings violated their due process rights. Although the BIA does not have 13 jurisdiction to adjudicate constitutional issues, see United 14 15 States v. Gonzalez-Roque , 301 F.3d 39, 47-48 (2d Cir.2002), such claims must nevertheless be administratively exhausted 16 when the BIA may decide the underlying issues of fairness of 17 1 8 process. See Theodoropoulos v. INS , 358 F.3d 162, 172-73 1 9 (2d Cir.2004). Therefore, the petition for review is 2 0 dismissed to this extent. 2 1 Although we lack jurisdiction to review a BIA member’s 2 2 decision to resolve a particular appeal unilaterally, and5 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, see8 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 1 0 (2d Cir. 2004). 1 1 Finally, petitioners failed to exhaust their argument 1 2 that their removal would deprive their U.S. citizen child of 1 3 his right to family unity and his right to remain in the 1 4 United States. See Theodoropoulos , 358 F.3d at 172-73. 1 5 Even if petitioners’ failure to exhaust this claim raises a 1 6 jurisdictional question, we assume hypothetical jurisdiction 1 7 to consider petitioners’ argument because the 1 8 “jurisdictional issues are complex and the substance of the 1 9 claim is . . . plainly without merit.” Ivanishvili v. U.S. 20 Dep’t of Justice , 433 F.3d 332, 338 (2d Cir 2006). Indeed, 2 1 it is well-settled that “an infant’s status as a citizen and 2 2 his dependence on his alien parent do not prevent the6 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 1 0 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b). 1 1 FOR THE COURT: 1 2 Catherine O’Hagan Wolfe, Clerk 13 14