Chun Hua Lao v. Holder

08-2812-ag Lao v. Holder BIA DeFonzo, IJ A098 906 053 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 21 st day of April, two thousand ten. 5 6 PRESENT: 7 DENNIS JACOBS, 8 Chief Judge, 9 GUIDO CALABRESI, 10 DEBRA ANN LIVINGSTON, 11 Circuit Judges. 12 _______________________________________ 13 14 CHUN HUA LAO, 15 Petitioner, 16 17 v. 08-2812-ag 18 NAC 19 ERIC H. HOLDER, JR., 1 UNITED STATES 20 ATTORNEY GENERAL, 21 Respondent. 22 ______________________________________ 23 24 25 FOR PETITIONER: Alexander K. Yu, New York, New York. 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 as the respondent in this case. 1 FOR RESPONDENT: George G. Katsas, Assistant Attorney 2 General, Leslie McKay, Assistant 3 Director, Anna E. Nelson, Trial 4 Attorney, Office of Immigration 5 Litigation, Civil Division, United 6 States Department of Justice, 7 Washington, D.C. 8 9 UPON DUE CONSIDERATION of this petition for review of a 10 Board of Immigration Appeals (“BIA”) decision, it is hereby 11 ORDERED, ADJUDGED, AND DECREED that the petition for review 12 is DISMISSED in part DENIED in part. 13 Petitioner Chun Hua Lao, a native and citizen of China, 14 seeks review of a May 13, 2008, order of the BIA denying her 15 motion to remand and affirming the May 31, 2006, decision of 16 Immigration Judge (“IJ”) Paul A. DeFonzo pretermitting her 17 application for asylum. 2 In re Chun Hua Lao, No. A0098 906 18 053 (B.I.A. May 13, 2008), aff’g No. A0098 906 053 (Immig. 19 Ct. N.Y. City May 31, 2006). We assume the parties’ 20 familiarity with the underlying facts and procedural history 21 in this case. 22 As an initial matter, we lack jurisdiction to review 23 the agency’s decision insofar it pretermitted as untimely 24 Lao’s application for asylum. See 8 U.S.C. §§ 1158(a)(3), 25 1252(a)(2)(B). While we retain jurisdiction to review 2 The IJ granted Lao withholding of removal to China. 2 1 constitutional claims and “questions of law,” 8 U.S.C. 2 § 1252(a)(2)(D), Lao has made no such arguments. See Saloum 3 v. USCIS, 437 F.3d 238 (2d Cir. 2006) (stating that a 4 petitioner may not create the jurisdiction that Congress 5 chose to remove simply by cloaking an abuse of discretion 6 argument in constitutional garb). We dismiss the petition 7 for review to that extent, but proceed to consider the BIA’s 8 denial of Lao’s motion to remand. 9 A motion to remand that relies on newly available 10 evidence is held to the substantive requirements of a motion 11 to reopen. See Li Yong Cao v. U.S. Dep’t of Justice, 421 12 F.3d 149, 156-157 (2d Cir. 2005); In re Coelho, 20 I. & N. 13 Dec. 464, 471 (BIA 1992). The BIA has “broad discretion” to 14 deny a motion to remand grounded on new evidence. See Li 15 Yong Cao, 421 F.3d at 156-157 (citing INS v. Doherty, 502 16 U.S. 314, 323, 112 S. Ct. 719, 116 L. Ed. 2d 823 (1992)). 17 Permissible reasons to deny such a motion include the 18 movant’s failure to make out a prima facie case for asylum. 19 Id. This Court reviews the BIA’s denial of a motion to 20 remand for abuse of discretion. Id. at 157. 21 We find no error in the BIA’s refusal to remand Lao’s 22 case to the IJ based on her third pregnancy. The IJ 3 1 pretermitted Lao’s application for asylum as untimely, 2 finding that because she fled China in fear of its family 3 planning policy, the birth of her first two children was not 4 a “changed or extraordinary” circumstance excusing the 5 untimely filing of her asylum application. See 8 U.S.C. 6 § 1158(a)(2)(D). Nonetheless, the IJ granted Lao’s request 7 for withholding of removal to China. In denying Lao’s 8 motion to remand, the BIA determined that her pregnancy with 9 her third child did not “represent a change in her 10 circumstances that would materially affect her eligibility 11 for asylum.” We find no abuse of discretion in that 12 decision. See Li Yong Cao, 421 F.3d at 151. 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 24 25 4