09 -0606 -ag

Wa ng v. Holder BIA Hom, IJ A099 083 215 

### UNITED STATES COURT OF AP PEALS FOR THE SE COND CIRCU IT 

# SUM MARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY O RDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERA L 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 14 day of September, two thousand ten. th 5 6 PRESENT: 7 GUIDO CALABRESI, 8 PETER W. HALL, 9 DENNY CHIN, 10 C ircuit Judges . 11

_______________________________________ 12 13 LI YUN WANG, 14 Petitioner , 15 16 v. 09-0606-ag 17 18 ERIC H. HOLDER, JR., UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent . 21

______________________________________ 22 23 FOR PETITIONER: Gary J. Yerman, New York, New York. 24 25 FOR RESPONDENT: Tony West, Assistant Attorney 26 General, Ernesto H. Molina, Jr. 27 Assistant Director, M. Lee Quinn, 28 Trial Attorney, Office of 29 Immigration Litigation, Civil 30 Division, United States Department 31 of Justice, Washington, D.C.2 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 Li Yun Wang, a native and citizen of China, 6 seeks review of the January 23, 2009, order of the BIA, 7 denying her motion to remand and affirming the May 9, 2006, 8 decision of Immigration Judge (“IJ”) Sandy K. Hom, 9 pretermitting her application for asylum and denying her 1 0 application for withholding of removal and relief under the 1 1 Convention Against Torture (“CAT”). In re Li Yun Wang , No. 1 2 A099 083 215 (B.I.A. Jan. 23, 2009), aff’g No. A099 083 215 1 3 (Immig. Ct. N.Y. City May 9, 2006). We assume the parties’ 1 4 familiarity with the underlying facts and procedural history 1 5 in this case. 1 6 When the BIA adopts the decision of the IJ and 1 7 supplements the IJ’s decision, this Court reviews the 1 8 decision of the IJ as supplemented by the BIA. See Yan Chen 19 v. Gonzales , 417 F.3d 268, 271 (2d Cir. 2005). The 2 0 applicable standards of review are well-established. 21 Corovic v. Mukasey , 519 F.3d 90, 95 (2d Cir. 2008); 22 Salimatou Bah v. Mukasey , 529 F.3d 99, 110 (2d Cir. 2008).3 1 As an initial matter, we lack jurisdiction to review 2 the agency’s decision insofar as it pretermitted as untimely 3 Wang’s application for asylum. See 8 U.S.C. §§ 1158(a)(3), 4 1252(a)(2)(B). While we retain jurisdiction to review 5 constitutional claims and “questions of law,” 8 U.S.C. 6 § 1252(a)(2)(D), Wang merely challenges the agency’s factual 7 determination that she failed to file her application within 8 a reasonable time period. See Xiao Ji Chen v. U.S. Dep’t of 9 Justice , 471 F.3d 315, 329 (2d Cir. 2006). 10 I. Motion To Remand 1 1 A motion to remand that relies on newly available 1 2 evidence is held to the substantive requirements of a motion 1 3 to reopen. See Li Yong Cao v. U.S. Dep’t of Justice , 421 1 4 F.3d 149, 156-157 (2d Cir. 2005); In re Coelho, 20 I. & N. 1 5 Dec. 464, 471 (BIA 1992). The BIA has “broad discretion” to 1 6 deny a motion to remand based on new evidence. See Li Yong 17 Cao , 421 F.3d at 156-157 (citingINS v. Doherty, 502 U.S. 1 8 314, 323, 112 S. Ct. 719, 116 L. Ed. 2d 823 (1992)). This 1 9 Court reviews the BIA’s denial of a motion to remand for 2 0 abuse of discretion. Id. at 157. 2 1 The BIA rejected much of the evidence that Wang 2 2 submitted in support of her remand motion because it4 1 predated her merits hearing. In addition, the BIA rejected 2 a letter from Wang’s father discussing “worsened conditions 3 in [her] hometown” because it was “insufficient to 4 demonstrate a likelihood of success on the merits.” We find 5 no error in either of these findings. See8 C.F.R. 6 § 1003.2(c)(1) (stating that a motion to reopen shall not be 7 granted unless the evidence was “not available and could not 8 have been discovered at the former hearing”); Xiao Ji Chen , 9 471 F.3d at 342 (finding that the weight afforded to an 1 0 alien’s evidence in immigration proceedings lies largely 1 1 within the discretion of the agency). 12 II. Withholding of Removal and CAT Relief 1 3 Additionally, substantial evidence supports the 1 4 agency’s determination that Wang failed to establish her 1 5 eligibility for withholding of removal and CAT relief based on the birth of her U.S. citizen children. See Jian Hui 16 17 Shao v. Mukasey , 546 F.3d 138, 158-73 (2d Cir. 2008). Other 1 8 than relying on generalized country conditions evidence, Wang fails to identify any error in the agency’s 19 2 0 determination that she failed to meet her burden. Accordingly, we are left with no reason to disturb the 21 2 2 agency’s denial of her application for withholding of5 1 removal and CAT relief. See Paul v. Gonzales , 444 F.3d 148, 156 (2d Cir. 2006). 2 3 For the foregoing reasons, the petition for review is DISMISSED in part and DENIED in part. As we have completed 4 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