Xiuhui Wang v. Holder

07-4948-ag; 08-0180-ag Wang v. Holder 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. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 29 th day of July, two thousand ten. PRESENT: DENNIS JACOBS, Chief Judge, JON O. NEWMAN, PIERRE N. LEVAL, Circuit Judges. ____________________________ XIUHUI WANG v. HOLDER, 1 07-4948-ag A095 377 798 ____________________________ MEI JUAN JIANG v. HOLDER, 08-0180-ag A097 760 104 ____________________________ UPON DUE CONSIDERATION of these petitions for review, it 1 Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Eric. H. Holder, Jr., is automatically substituted for former Attorney General Michael B. Mukasey. 03292010-1-2 is hereby ORDERED, ADJUDGED, AND DECREED, that the petitions for review are DENIED, in part, and DISMISSED, in part. Both of these petitions challenge a decision of the Board of Immigration Appeals affirming an Immigration Judge’s decision pretermitting petitioners’ applications for asylum and denying their applications for withholding of removal and relief under the Convention Against Torture (“CAT”). Title 8, Section 1158(a)(3) of the United States Code provides that no court shall have jurisdiction to review the agency’s finding that an asylum application was untimely under 8 U.S.C. § 1158(a)(2)(B), or its finding of neither changed nor extraordinary circumstances excusing the untimeliness under 8 U.S.C. § 1158(a)(2)(D). Notwithstanding that provision, however, this Court retains jurisdiction to review constitutional claims and “questions of law.” 8 U.S.C. § 1252(a)(2)(D). Because petitioners have raised neither a constitutional claim nor a question of law, we lack jurisdiction to review their challenges to the agency’s pretermission of their applications for asylum. 8 U.S.C. § 1158(a)(3). Petitioners’ applications for withholding of removal and 03292010-1-2 -2- CAT relief were based primarily on the birth of one or more children in the United States. For largely the same reasons this Court set forth in Jian Hui Shao v. Mukasey, we find no error in the challenged BIA decisions. 546 F.3d 138, 168-72 (2d Cir. 2008). For the foregoing reasons, these petitions for review are DENIED, in part, and DISMISSED, in part. As we have completed our review, any stay of removal that the Court previously granted in these petitions is VACATED, and any pending motion for a stay of removal in these petitions is DISMISSED as moot. Any pending request for oral argument in these petitions is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b). FOR THE COURT: Catherine O’Hagan Wolfe, Clerk 03292010-1-2 -3-