Zhang v. Lynch

13-2040 Zhang v. Lynch BIA Balasquide, IJ A087 446 563 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 Thurgood Marshall United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 17th day of February, two thousand sixteen. 5 6 PRESENT: 7 DENNIS JACOBS, 8 BARRINGTON D. PARKER, 9 DEBRA ANN LIVINGSTON, 10 Circuit Judges. 11 _____________________________________ 12 13 WU BING ZHANG, 14 Petitioner, 15 16 v. 13-2040 17 NAC 18 Loretta E. Lynch, UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 24 25 FOR PETITIONER: Michael Brown, New York, New York. 26 27 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney 28 General; Stephen J. Flynn, Assistant 29 Director; Lynda A. Do, Attorney; 30 Jeffrey R. Meyer, Attorney, Civil  1 Division, Office of Immigration 2 Litigation, United States Department 3 of Justice, Washington D.C. 4 5 UPON DUE CONSIDERATION of this petition for review of a

6 Board of Immigration Appeals (“BIA”) decision, it is hereby

7 ORDERED, ADJUDGED, AND DECREED that the petition for review

8 is DENIED.

9 Petitioner Wu Bing Zhang, a native and citizen of

10 China, seeks review of a May 2, 2013 decision of the BIA

11 affirming a June 3, 2011, decision of an Immigration Judge

12 (“IJ”) denying Zhang’s application for asylum, withholding

13 of removal and relief under the Convention Against Torture

14 (“CAT”). In re Wu Bing Zhang, No. A087 446 563 (B.I.A. May

15 2, 2013), aff’g No. A087 446 563 (Immig. Ct. N.Y. City June

16 3, 2011). We assume the parties’ familiarity with the

17 underlying facts and procedural history in this case.

18 Given the circumstances of this case, we have reviewed

19 both the IJ’s and the BIA’s opinions “for the sake of

20 completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.

21 2008) (per curiam). The applicable standards of review are

22 well established. See 8 U.S.C. 1252(b)(4)(B); see also

23 Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

24

2  1 In the main, Zhang challenges the denial of his asylum

2 application as untimely. The Immigration and Nationality

3 Act strips the federal courts of jurisdiction to review the

4 agency’s finding that an asylum application was untimely. 8

5 U.S.C. §§ 1158(a)(3); 1158(a)(2)(B). Notwithstanding that

6 provision, we retain jurisdiction to review constitutional

7 claims and “questions of law” arising from untimeliness

8 determinations. 8 U.S.C. § 1252(a)(2)(D). To determine

9 whether jurisdiction exists in a particular case, we must

10 “study the arguments asserted” and ask, “regardless of the

11 rhetoric employed in the petition, whether it merely

12 quarrels over the correctness of the factual findings or

13 justification for the discretionary choices, in which case

14 the court would lack jurisdiction, or whether it instead

15 raises a ‘constitutional claim’ or ‘question of law,’” in

16 which case those particular issues could be addressed. Xiao

17 Ji Chen v. U.S. Dep't of Justice, 471 F.3d 315, 329 (2d Cir.

18 2006); see also Liu v. I.N.S., 508 F.3d 716, 720 (2d Cir.

19 2007).

20 Zhang’s arguments fall squarely into the category of

21 mere quarrels. He points to his own testimony and contends

22 that the IJ erred in three respects: by requiring

3  1 corroborating documents; by declining to credit Zhang’s

2 explanations for those documents’ unavailability; and by

3 giving insufficient weight to the one document that Zhang

4 did produce. Zhang frames these arguments as legal errors

5 committed by the IJ. At bottom, however, he contends that

6 the IJ should have given his testimony and document more

7 weight – enough to meet his burden of proof. He thus

8 “disputes the correctness of [the] IJ’s fact-finding,”an

9 issue over which this Court has no jurisdiction. Xiao Ji

10 Chen, 471 F.3d at 329.

11 Zhang also challenges the BIA’s denial of his motion to

12 remand his case to the IJ. We have jurisdiction to review

13 that decision.

14 “A motion to remand that relies on newly available

15 evidence is held to the substantive requirements of a motion

16 to reopen.” Li Yong Cao v. U.S. Dep’t of Justice, 421 F.3d

17 149, 156 (2d Cir. 2005). A motion to reopen “shall not be

18 granted unless it appears to the Board that evidence sought

19 to be offered is material and was not available and could

20 not have been discovered or presented at the former

21 hearing.” 8 C.F.R. § 1003.2(c)(1). “To prevail on the

22 motion, the movant must also establish prima facie

23 eligibility for asylum, i.e., ‘a realistic chance’ that he

4  1 will be able to establish eligibility.” Poradisova v.

2 Gonzales, 420 F.3d 70, 78 (2d Cir. 2005). This Court

3 reviews the BIA’s denial of a motion to reopen for abuse of

4 discretion, mindful that such motions are “disfavored.” Ali

5 v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006) (citing I.N.S.

6 v. Doherty, 502 U.S. 314, 322-23 (1992)).

7 The BIA did not abuse its discretion when it concluded

8 that Zhang could have presented his new submissions at his

9 merits hearing. Zhang produced four new documents with his

10 motion to remand: an affidavit and permanent resident card

11 from the friend who met him upon his arrival in New York;

12 his own affidavit; and a record from a Chinese hospital. In

13 his brief to the BIA, Zhang explained that after the merits

14 hearing, he located (and reconciled with) his friend and

15 recalled receiving treatment at a hospital in China. He did

16 not, however, explain why he could not have handled these

17 tasks prior to his merits hearing. Consequently, the BIA

18 did not abuse its discretion in denying the motion.

19 The government moves to dismiss Zhang’s petition

20 insofar as it challenges the denial of asylum, and seeks

21 summary denial of the petition insofar as it challenges the

22 denial of Zhang’s motion to remand. We have considered the

23 merits brief submitted by Zhang, and we treat the

5 1 government’s motion as a response to it. For the foregoing

2 reasons, the petition for review is DENIED and the

3 government’s motion is DENIED as moot.

4 FOR THE COURT: 5 Catherine O’Hagan Wolfe, Clerk 6 7 8

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