         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




                                 6
