09-0606-ag

Wang v. Holder

BIA

Hom, IJ

A099 083 215

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 14 day of September, two thousand ten. th

5

6 PRESENT:

7 GUIDO CALABRESI,

8 PETER W. HALL,

9 DENNY CHIN,

10 Circuit 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

10 application for withholding of removal and relief under the

11 Convention Against Torture (“CAT”). In re Li Yun Wang, No.

12 A099 083 215 (B.I.A. Jan. 23, 2009), aff’g No. A099 083 215

13 (Immig. Ct. N.Y. City May 9, 2006). We assume the parties’

14 familiarity with the underlying facts and procedural history

15 in this case.

16 When the BIA adopts the decision of the IJ and

17 supplements the IJ’s decision, this Court reviews the

18 decision of the IJ as supplemented by the BIA. See Yan Chen

19 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The

20 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

11 A motion to remand that relies on newly available

12 evidence is held to the substantive requirements of a motion

13 to reopen. See Li Yong Cao v. U.S. Dep’t of Justice, 421

14 F.3d 149, 156-157 (2d Cir. 2005); In re Coelho, 20 I. & N.

15 Dec. 464, 471 (BIA 1992). The BIA has “broad discretion” to

16 deny a motion to remand based on new evidence. See Li Yong

17 Cao, 421 F.3d at 156-157 (citing INS v. Doherty, 502 U.S.

18 314, 323, 112 S. Ct. 719, 116 L. Ed. 2d 823 (1992)). This

19 Court reviews the BIA’s denial of a motion to remand for

20 abuse of discretion. Id. at 157. 

21 The BIA rejected much of the evidence that Wang

22 submitted in support of her remand motion because it
4

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. See 8 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

10 alien’s evidence in immigration proceedings lies largely

11 within the discretion of the agency).

12 II. Withholding of Removal and CAT Relief

13 Additionally, substantial evidence supports the

14 agency’s determination that Wang failed to establish her

15 eligibility for withholding of removal and CAT relief based

16 on the birth of her U.S. citizen children. See Jian Hui

17 Shao v. Mukasey, 546 F.3d 138, 158-73 (2d Cir. 2008). Other

18 than relying on generalized country conditions evidence,

19 Wang fails to identify any error in the agency’s

20 determination that she failed to meet her burden. 

21 Accordingly, we are left with no reason to disturb the

22 agency’s denial of her application for withholding of
5

1 removal and CAT relief. See Paul v. Gonzales, 444 F.3d 148,

2 156 (2d Cir. 2006).

3 For the foregoing reasons, the petition for review is

4 DISMISSED in part and DENIED 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