Ming Ye v. Eric Holder, Jr.

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-1847

MING TONG YE,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration
Appeals.

Submitted: January 31, 2013 Decided: February 13, 2013

Before DUNCAN, KEENAN, and FLOYD, Circuit Judges.

Petition denied by unpublished per curiam opinion.

Theodore N. Cox, New York, New York, for Petitioner. Stuart F.
Delery, Acting Assistant Attorney General, Stephen J. Flynn,
Assistant Director, Anh-Thu P. Mai-Windle, Senior Litigation
Counsel, Office of Immigration Litigation, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Ming Tong Ye, a native and citizen of the People’s

Republic of China, petitions for review of the Board of

Immigration Appeals’ (“Board”) order dismissing his appeal from

the immigration judge’s order denying his applications for

asylum, withholding of removal and withholding under the

Convention Against Torture (“CAT”). Ye does not challenge the

adverse credibility finding or the finding that he did not

establish that he was eligible for relief under the CAT. Thus,

he has abandoned those claims. See Ogundipe v. Mukasey, 541

F.3d 257, 263 n.4 (4th Cir. 2008); Ngarurih v. Ashcroft, 371

F.3d 182, 189 n.7 (4th Cir. 2004) (failure to challenge the

denial of relief under the CAT results in abandonment of that

challenge); see also Edwards v. City of Goldsboro, 178 F.3d 231,

241 n.6 (4th Cir. 1999). We deny the petition for review.

Ye contends that the immigration judge erred by not

finding that the independent documentary evidence supported his

claim that he suffered past persecution. Ye further claims that

the immigration judge did not conduct a meaningful analysis of

the independent evidence to determine whether it could support

his claim for relief. Pursuant to 8 U.S.C. § 1252(d)(1), “[a]

court may review a final order of removal only if . . . the

alien has exhausted all administrative remedies available to the

alien as of right[.]” This court has noted that “an alien who

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has failed to raise claims during an appeal to the [Board] has

waived his right to raise those claims before a federal court on

appeal of the [Board’s] decision.” Farrokhi v. INS, 900 F.2d

697, 700 (4th Cir. 1990); see also Gonahasa v. INS, 181 F.3d

538, 544 (4th Cir. 1999). Moreover, this court has held that it

lacks jurisdiction to consider an argument not made before the

Board. Asika v. Ashcroft, 362 F.3d 264, 267 n.3 (4th Cir.

2004). We are without jurisdiction to review this issue because

Ye did not raise the issue on appeal to the Board.

Ye also claims that the Board erred by not giving

weight to his affidavit that he submitted with his brief to the

Board. As the Board correctly observed, it may not consider

evidence offered for the first time on appeal. See 8 C.F.R.

§ 1003.1(d)(3)(iv) (2012) (“Board will not engage in factfinding

in the course of deciding appeals.”). The Board’s review is

generally confined to the record before the immigration judge.

Matter of C-, 20 I. & N. Dec. 529, 530 n.2 (B.I.A. 1992).

Furthermore, had Ye wanted to have his new evidence considered,

he should have filed a motion to remand, which he did not do.

Accordingly, we conclude there was no error.

We deny the petition for review. We dispense with

oral argument because the facts and legal contentions are

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adequately presented in the materials before this court and

argument would not aid the decisional process.

PETITION DENIED

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