16-1627
Li v. Sessions
BIA
Nelson, IJ
A088 805 040
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 TO 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 Thurgood Marshall United States
Courthouse, 40 Foley Square, in the City of New York, on the
17th day of October, two thousand seventeen.
PRESENT:
BARRINGTON D. PARKER,
DEBRA ANN LIVINGSTON,
GERARD E. LYNCH,
Circuit Judges.
_____________________________________
YINGJI LI,
Petitioner,
v. 16-1627
NAC
JEFFERSON B. SESSIONS III, UNITED
STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Evan Goldberg, Law Office of
Theodore M. Davis, New York, NY.
FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
Assistant Attorney General; Stephen
J. Flynn, Assistant Director; Imran
R. Zaidi, Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, DC.
_____________________________________
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review is
DENIED.
Petitioner Yingji Li, a native and citizen of the People’s
Republic of China, seeks review of an April 28, 2016, decision
of the BIA affirming a July 29, 2015, decision of an Immigration
Judge (“IJ”) denying her withholding of removal and relief under
the Convention Against Torture (“CAT”). In re Yingji Li, No.
A088 805 040 (B.I.A. Apr. 28, 2016), aff’g No. A088 805 040
(Immig. Ct. N.Y. City July 29, 2015). We assume the parties’
familiarity with the underlying facts and procedural history
in this case.
We have reviewed both the IJ’s and the BIA’s decisions “for
the sake of completeness.” Wangchuck v. Dep’t of Homeland
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Sec., 448 F.3d 524, 528 (2d Cir. 2006). The applicable
standards of review are well established. Y.C. v. Holder, 741
F.3d 324, 332 (2d Cir. 2013).
There is no merit to Li’s claim that the IJ violated her
due process rights by failing to hear additional testimony or
admit new evidence on remand regarding Li’s membership in the
Chinese Democracy Party (“CDP”). In the immigration context,
“[t]o establish a violation of due process, an alien must show
that she was denied a full and fair opportunity to present her
claims or that the IJ or BIA otherwise deprived her of
fundamental fairness.” Burger v. Gonzales, 498 F.3d 131, 134
(2d Cir. 2007) (citation and internal quotation omitted).
“Parties claiming denial of due process in immigration cases
must, in order to prevail, ‘allege some cognizable prejudice
fairly attributable to the challenged process.’”
Garcia-Villeda v. Mukasey, 531 F.3d 141, 149 (2d Cir. 2008)
(quoting Lattab v. Ashcroft, 384 F.3d 8, 20 (1st Cir. 2004)).
Here, Li was permitted a full and fair opportunity to
present her case. See Burger, 498 F.3d at 134. During her May
10, 2011 hearing, Li testified at length regarding her
membership in the CDP and submitted evidence in support of that
claim. Li now claims that the IJ should have conducted a
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hearing or taken new evidence after her case was remanded in
May 2013. But Li appeared before the IJ several times after
remand and never requested a new hearing or otherwise indicated
that she had additional evidence to submit. Furthermore, Li
fails to show actual prejudice because she has not identified
the additional testimony or evidence she would have submitted.
See Garcia-Villeda, 531 F.3d at 149; Rabiu v. INS, 41 F.3d 879,
882-83 (2d Cir. 1994) (“In order . . . to show . . . actual
prejudice, [a petitioner] must make a prima facie showing that
[s]he would have been eligible for the relief and that [s]he
could have made a strong showing in support of h[er]
application.” (citation omitted)).
There is no merit to Li’s related argument that the IJ
abused her discretion by failing to articulate a reason why she
granted withholding of removal but then denied that same form
of relief after reopening. Contrary to Li’s suggestion, the
IJ did not initially grant withholding of removal on the merits
of the claim, but rather based the grant solely on the parties’
stipulation. Once Li withdrew her consent to the stipulation
and requested reopening, the IJ properly evaluated Li’s claim
on the merits.
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The BIA declined to consider Li’s claim that she satisfied
her burden of proof on the grounds that Li failed to argue that
claim on appeal. Accordingly, we may not consider Li’s
unexhausted challenge to the IJ’s finding in this regard. See
Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 122 (2d Cir.
2007) (“[W]e may consider only those issues that formed the
basis for [the BIA’s] decision.”). We do not reach the agency’s
rejection of Li’s application for asylum as untimely or the
denial of withholding of removal and CAT relief insofar as those
claims were based on Li’s assistance to North Korean refugees
because Li does not address these rulings in her brief. See
Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d
Cir. 2005).
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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