08-3851-ag
Chen v. Holder
BIA
Weisel, IJ
A76 980 171
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 1 st day of March, two thousand nine.
5
6 PRESENT:
7 ROSEMARY S. POOLER,
8 RICHARD C. WESLEY,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 ______________________________________
12
13 JIAN ZHENG CHEN
14 Petitioner,
15
16 v. 08-3851-ag
17 NAC
18
19 ERIC H. HOLDER, JR.,
20 U.S. ATTORNEY GENERAL, * BUREAU OF
21 CITIZENSHIP AND IMMIGRATION SERVICES
22 Respondents.
23 __________________________________
24
*
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), United States Attorney General Eric H. Holder Jr.
is substituted for former Attorney General Michael B.
Mukasey as Respondent in this case.
1 FOR PETITIONER: John Chang, Esq., New York, New
2 York.
3
4 F O R RESPONDENT: Gregory G. Katsas, Assistant
5 Attorney General, Civil Division;
6 William C. Peachey, Assistant
7 Director; Mona Maria Yousif,
8 Attorney, Office of Immigration
9 Litigation, U.S. Department of
10 Justice, Washington, D.C.
11
12 UPON DUE CONSIDERATION of this petition for review of a
13 decision of the Board of Immigration Appeals (“BIA”), it is
14 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
15 review is DENIED.
16 Petitioner Jian Zheng Chen, a native and citizen of the
17 People’s Republic of China, seeks review of a July 22, 2008
18 order of the BIA affirming the April 25, 2007 decision of
19 Immigration Judge Robert D. Weisel denying for lack of
20 jurisdiction her motion to file a successive asylum
21 application. In re Jian Zheng Chen, No. A76 980 171 (B.I.A.
22 July 22, 2008), aff’g No. A76 980 171 (Immig. Ct. N.Y. City
23 Apr. 25, 2007). We assume the parties’ familiarity with the
24 underlying facts and procedural history in this case.
25 When the BIA does not adopt the decision of the IJ to
26 any extent, this Court reviews only the decision of the BIA.
27 See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).
28 We review the denial of a motion to reopen for abuse of
2
1 discretion. See Cekic v. INS, 435 F.3d 167, 170 (2d Cir.
2 2006).
3 As an initial matter, Chen’s brief to this Court does
4 not challenge the BIA’s finding that she could submit a
5 successive asylum application only in conjunction with a
6 properly filed motion to reopen. See Matter of C-W-L-, 24
7 I.& N. Dec. 346, 350 (B.I.A. 2007); Yuen Jin v. Mukasey, 538
8 F.3d 143, 152 (2d Cir. 2008). Furthermore, Chen challenges
9 neither the BIA’s finding that the births of her two U.S.-
10 born children constituted changed personal circumstances
11 rather than changed country conditions, nor its
12 determination that she was not entitled to file a successive
13 asylum based on changed personal circumstances. See Matter
14 of C-W-L, 24 I.&N. Dec. at 350; Yuen Jin, 538 F.3d at 152.
15 Nor does Chen revive before this Court the argument that she
16 raised before both the IJ and the BIA that jurisdiction over
17 her successive asylum application properly lay with the IJ.
18 Accordingly, Chen has waived those arguments. See Yueqing
19 Zhang v. Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir.
20 2005).
21 Moreover, the BIA correctly found that the IJ did not
22 have jurisdiction over Chen’s motion to reopen based on
3
1 changed country conditions. An IJ has jurisdiction to
2 consider motions to reopen only until the applicant properly
3 files an appeal, at which point jurisdiction vests with the
4 BIA. See 8 C.F.R. § 1003.23(b)(1) (providing that an IJ may
5 “reopen or reconsider any case in which he or she has made a
6 decision, unless jurisdiction is vested with the Board of
7 Immigration Appeals”); see also Matter of Patino, 23 I. & N.
8 Dec. 74, 76 (B.I.A. 2001) (stating that “until such time as
9 an appeal is properly before the Board, the Immigration
10 Judge has continuing jurisdiction to entertain motions
11 regarding proceedings that were previously before the
12 Immigration Judge”). At the time Chen submitted her motion,
13 she had already filed an appeal from the IJ’s denial of her
14 application for relief with the BIA, and the BIA had issued
15 a final administrative order adjudicating that appeal.
16 Accordingly, jurisdiction over any motion to reopen in
17 Chen’s case had vested with the BIA, and, to the extent her
18 motion could be construed as a motion to reopen, it was not
19 properly before the immigration court. 8 C.F.R.
20 §§ 1003.2(a), 1003.23(b)(1); Matter of Patino, 23 I. & N.
21 Dec. at 76.
22 In addition, despite Chen’s arguments to the contrary,
4
1 the BIA was not required to construe her appeal as a motion
2 to reopen. Although Chen requested “remand,” she did not
3 make a motion to remand. Cf. Matter of Coelho, 20 I.&N.
4 Dec. 464, 471 (B.I.A. 1992) (holding that “where a motion to
5 remand is really in the nature of a motion to reopen or a
6 motion to reconsider, it must comply with the substantive
7 requirements for such motions”). Moreover, although she
8 asked the immigration court to reopen her case based on
9 changed country conditions, she never made that request of
10 the BIA. Thus, the BIA reasonably interpreted Chen’s appeal
11 brief as asking it not to reopen her proceedings based on
12 changed country conditions but to find that the IJ erred in
13 failing to do so. Accordingly, the BIA did not abuse its
14 discretion by not construing Chen’s “request for remand” as
15 a motion to remand or by failing to consider the merits of
16 her underlying motion to reopen. See Kaur v. BIA, 413 F.3d
17 232, 233-34 (2d Cir. 2005).
18 Finally, the IJ and the BIA did not abuse their
19 discretion by failing to consider Chen’s application for CAT
20 relief, which was based on her illegal departure from China.
21 Because the IJ had no jurisdiction to any extent over Chen’s
22 motion to reopen, 8 C.F.R. §§ 1003.2(a), 1003.23(b)(1);
23 Matter of Patino, 23 I. & N. Dec. at 76, Chen’s application
24 for CAT relief was not properly before the IJ. Moreover,
5
1 because Chen did not renew her motion to reopen before the
2 BIA but rather asked the BIA to find that the IJ had erred
3 in not reopening her proceedings, her claim for CAT relief
4 was also not properly before the BIA, and the BIA’s failure
5 to specifically address it did not constitute an abuse of
6 discretion. See Kaur, 413 F.3d at 233-34.
7 For the foregoing reasons, the petition for review is
8 DENIED. As we have completed our review, the pending motion
9 for a stay of removal in this petition is DISMISSED as moot.
10
11 FOR THE COURT:
12 Catherine O’Hagan Wolfe, Clerk
13
14
15
6