10-507-ag
Lu v. Holder
BIA
Nelson, IJ
A073 667 318
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 2 nd day of February, two thousand eleven.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 ROBERT D. SACK,
10 DENNY CHIN,
11 Circuit Judges.
12 _______________________________________
13
14 WEIZHEN LU,
15 Petitioner,
16
17 v. 10-507-ag
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _______________________________________
23
24 FOR PETITIONER: Matthew J. Archambeault,
25 Montano-Miranda & Archambeault,
26 Philadelphia, Pennsylvania.
27
28 FOR RESPONDENT: Tony West, Assistant Attorney
29 General; Douglas E. Ginsburg,
1 Assistant Director; Matthew B.
2 George, Trial Attorney, Office of
3 Immigration Litigation, United
4 States Department of Justice,
5 Washington, D.C.
6
7 UPON DUE CONSIDERATION of this petition for review of a
8 Board of Immigration Appeals (“BIA”) decision, it is hereby
9 ORDERED, ADJUDGED, AND DECREED that the petition for review
10 is DISMISSED in part and DENIED in part.
11 Weizhen Lu, a native and citizen of the People’s
12 Republic of China, seeks review of a January 7, 2010, order
13 of the BIA denying her motion to remand and affirming the
14 March 31, 2008, decision of Immigration Judge (“IJ”) Barbara
15 A. Nelson, which pretermitted her application for asylum and
16 denied her applications for withholding of removal, relief
17 under the Convention Against Torture (“CAT”), and
18 cancellation of removal. In re Weizhen Lu, No. A073 667 318
19 (B.I.A. Jan. 7, 2010), aff’g No. A073 667 318 (Immig. Ct.
20 N.Y. City Mar. 31, 2008). We assume the parties’
21 familiarity with the underlying facts and procedural history
22 in this case.
23 Lu challenges the agency’s denial of cancellation of
24 removal and withholding of removal, and the BIA’s denial of
25 her motion to remand. Under the circumstances of this case,
2
1 we review both the IJ’s and the BIA’s opinions. See Jigme
2 Wangchuck v. Dep't of Homeland Sec., 448 F.3d 524, 528 (2d
3 Cir. 2006). The applicable standards of review are well-
4 established. See
5 8 U.S.C. § 1252(b)(4)(B); see also Manzur v. U.S. Dep’t of
6 Homeland Sec., 494 F.3d 281, 289 (2d Cir. 2007) ; Li Yong Cao
7 v. U.S. Dep't of Justice, 421 F.3d 149, 151 (2d Cir. 2005).
8 I. Cancellation of Removal
9 We lack jurisdiction to consider Lu’s challenge to the
10 agency’s finding that she failed to demonstrate that her
11 children would suffer exceptional and extremely unusual
12 hardship as a result of her deportation. See 8 U.S.C.
13 § 1252(a)(2)(B)(i); Barco-Sandoval v. Gonzales, 516 F.3d 35,
14 38-40 (2d Cir. 2008) . Although we retain jurisdiction to
15 consider constitutional claims and questions of law, see
16 Barco-Sandoval, 516 F.3d at 39 , here Lu merely challenges
17 the agency’s weighing of her evidence of hardship and fails
18 to point to any legal error in the agency’s findings . Thus,
19 she fails to raise a question of law over which we have
20 jurisdiction. See id. ; see also Mendez v. Holder, 566 F.3d
21 316, 323 (2d Cir. 2009) (finding that the BIA “does not
22 commit an ‘error of law’ every time an item of evidence is
3
1 not explicitly considered or is described with imperfect
2 accuracy” unless “some facts important to the subtle
3 determination of ‘exceptional and extremely unusual
4 hardship’ have been totally overlooked and others have been
5 seriously mischaracterized”); Xiao Ji Chen v. U.S. Dep’t of
6 Justice, 471 F.3d 315, 325-27, 329 (2d Cir. 2006)
7 (explaining that a “question of law” does not include a
8 challenge to the correctness of the agency’s “fact-finding
9 or the wisdom of [its] exercise of discretion”).
10 Consequently, we dismiss the petition insofar as it
11 challenges the agency’s denial of Lu’s application for
12 cancellation of removal.
13 II. Withholding of Removal
14 Lu’s arguments regarding her eligibility for
15 withholding of removal based on the birth of her U.S.-
16 citizen children are largely foreclosed by the Court’s
17 decision in Jian Hui Shao v. Mukasey, 546 F.3d 138 (2d Cir.
18 2008). Despite Lu’s argument, a reasonable fact-finder
19 would not be compelled to conclude that the BIA ignored any
20 material evidence that she submitted. See id. at 169
21 (recognizing that the Court has rejected the notion that the
22 agency must “expressly parse or refute on the record each
4
1 individual argument or piece of evidence offered by the
2 petitioner”); see also Xiao Ji Chen, 471 F.3d at 336 n.17
3 (presuming that the agency “has taken into account all of
4 the evidence before [it], unless the record compellingly
5 suggests otherwise”). Moreover, the agency did not err in
6 declining to afford any evidentiary weight to a copy of a
7 letter from Lu’s village committee because that letter
8 lacked any indicia of authenticity. See Xiao Ji Chen, 471
9 F.3d at 342 (finding that the weight afforded to the
10 applicant’s evidence in immigration proceedings lies largely
11 within the discretion of the agency); see Matter of H-L-H- &
12 Z-Y-Z-, 25 I. & N. Dec. 209, 214 & n.5 (B.I.A. 2010)
13 (holding that unsigned, unauthenticated documents, from a
14 “Street Resident Committee” and “Villager Committee,” that
15 fail to identify the authors, are entitled to minimal
16 weight, especially when the documents were allegedly
17 obtained from the authorities specifically for the purpose
18 of the hearing on the applicant’s behalf). Consequently,
19 substantial evidence supports the agency’s determination
20 that Lu failed to demonstrate a likelihood of persecution in
21 China based on the birth of her four U.S.-citizen children.
22 See Manzur, 494 F.3d at 289.
5
1 III. Motion to Remand
2 The BIA may deny a motion to remand where: (1) a movant
3 failed to present previously unavailable material evidence;
4 (2) a movant failed to establish a prima facie case for the
5 relief sought; or (3) the relief sought is discretionary and
6 a movant failed to show that she warranted the relief sought
7 as a matter of discretion. See Li Yong Cao, 421 F.3d at
8 156; Matter of Coelho, 20 I. & N. Dec. 464, 474 (B.I.A.
9 1992); see also
10 8 C.F.R. § 1003.2(c)(1) (requiring motions to reopen to
11 present evidence that is “material and was not available and
12 could not have been discovered or presented at the former
13 hearing”).
14 Here, the BIA did not abuse its discretion in denying
15 Lu’s motion to remand because it reasonably determined that
16 the psychological report regarding the hardship Lu’s
17 deportation would have on her U.S.-citizen children was
18 neither material nor previously unavailable. See Xiao Ji
19 Chen, 471 F.3d at 342 (explaining that weight afforded to
20 the applicant’s evidence in immigration proceedings lies
21 largely within the discretion of the agency). Indeed, to
22 the extent that the report discussed the psychological
6
1 effect that Lu’s deportation could have on her children as
2 they would be returned to China, the BIA reasonably
3 determined that this information was available and could
4 have been presented at Lu’s hearing before the IJ. See 8
5 C.F.R. § 1003.2(c)(1) . Finally, the BIA did not abuse its
6 discretion in concluding that even if this information had
7 not been previously available, it was not material as Lu
8 testified that she would take her children with her if she
9 were removed. Thus, the BIA did not abuse its discretion in
10 denying Lu’s motion to remand. See Li Yong Cao, 421 F.3d at
11 151 (reviewing the BIA’s denial of a motion to remand for
12 abuse of discretion) .
13 For the foregoing reasons, the petition for review is
14 DISMISSED in part and DENIED in part. As we have completed
15 our review, any stay of removal that the Court previously
16 granted in this petition is VACATED, and any pending motion
17 for a stay of removal in this petition is DISMISSED as moot.
18 Any pending request for oral argument in this petition is
19 DENIED in accordance with Federal Rule of Appellate
20 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).
21 FOR THE COURT:
22 Catherine O’Hagan Wolfe, Clerk
23
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