     16-3851
     Li-Shang v. Sessions
                                                                                   BIA
                                                                                Hom, IJ
                                                                           A205 647 594

                             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.

 1        At a stated term of the United States Court of Appeals
 2   for the Second Circuit, held at the Thurgood Marshall
 3   United States Courthouse, 40 Foley Square, in the City of
 4   New York, on the 2nd day of April, two thousand eighteen.
 5
 6   PRESENT:
 7            DENNIS JACOBS,
 8            PETER W. HALL,
 9            RAYMOND J. LOHIER, JR.,
10                 Circuit Judges.
11   _____________________________________
12
13   JIANXING LI-SHANG,
14
15                            Petitioner,
16
17                      v.                                       16-3851
18                                                               NAC
19
20   JEFFERSON B. SESSIONS III,
21   UNITED STATES ATTORNEY GENERAL,
22
23                 Respondent.
24   _____________________________________
25
26   FOR PETITIONER:                        Thomas V. Massucci, New York, NY.
27
28   FOR RESPONDENT:                        Chad A. Readler, Acting Assistant
1                                    Attorney General; Daniel E.
2                                    Goldman, Senior Litigation
3                                    Counsel; Lindsay C. Dunn, Trial
4                                    Attorney, Office of Immigration
5                                    Litigation, United States
6                                    Department of Justice, Washington,
7                                    DC.
8
9          UPON DUE CONSIDERATION of this petition for review of a

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

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

12   is DENIED.

13         Petitioner Jianxing Li-Shang, a native and citizen of

14   the People’s Republic of China, seeks review of an October

15   24, 2016, decision of the BIA affirming a March 15, 2016,

16   decision of an Immigration Judge (“IJ”) denying him asylum,

17   withholding    of   removal,    and       relief   under    the    Convention

18   Against Torture (“CAT”).        In re Jianxing Li-Shang, No. A205

19   647 594 (B.I.A. Oct. 24, 2016), aff’g No. A205 647 594 (Immig.

20   Ct.   N.Y.C.   Mar.   15,      2016).        We    assume    the    parties’

21   familiarity with the underlying facts and procedural history

22   in this case, in which Li-Shang applied for relief based on

23   his claims that he was beaten for opposing China’s family

24   planning policy and that he fears persecution as a Christian.

25         Under the circumstances of this case, we review the IJ’s

26   decision as modified by the BIA.             See Xue Hong Yang v. U.S.

                                           2
1    Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).             We review

2    the agency’s factual findings under the substantial evidence

3    standard.       See    8 U.S.C.    § 1252(b)(4)(B);     Chuilu    Liu   v.

4    Holder, 575 F.3d 193, 196 (2d Cir. 2009); see also Diop v.

5    Lynch, 807 F.3d 70, 75 (4th Cir. 2015) (“The IJ’s factual

6    finding   of    competency    is   reviewed     under   the   substantial

7    evidence standard . . . .”).

8        The agency did not err in finding Li-Shang competent to

9    proceed     with      his   removal       hearing   without   additional

10   safeguards.     “[T]he test for determining whether an alien is

11   competent      to   participate    in     immigration   proceedings     is

12   whether he or she has a rational and factual understanding of

13   the nature and object of the proceedings, can consult with

14   the attorney or representative if there is one, and has a

15   reasonable opportunity to examine and present evidence and

16   cross-examine witnesses.”          Matter of M-A-M-, 25 I. & N. Dec.

17   474, 479 (B.I.A. 2011).        To determine competency, an IJ may

18   ask questions regarding “the nature of the proceedings, . . .

19   the respondent’s state of mind[,] [and] . . . whether he or

20   she currently takes or has taken medication to treat a mental

21   illness,” or the IJ may continue proceedings to permit an

22   evaluation.     Id. at 480-81.

                                           3
1        Here, the IJ engaged in the appropriate inquiry after

2    Li-Shang’s attorney alleged that Li-Shang had memory issues

3    and anxiety, and the IJ reasonably concluded that Li-Shang

4    was competent.   As the IJ found, Li-Shang provided responsive

5    answers about the nature of the proceedings, how he entered

6    the United States, and who the IJ was in the proceedings.

7    Furthermore, Li-Shang was able to detail his medical issues

8    from polio and admitted that he had experienced stress and

9    nervousness   only   when   detained    at   the   border   and   when

10   appearing before the IJ.     He also admitted that he was able

11   to hold two jobs.    Given Li-Shang’s responsiveness, lack of

12   relevant medical history, and ability to work, the IJ did not

13   err in finding him competent.        Id. at 479-81.

14       Li-Shang’s additional competency challenges fail.              He

15   argues that he was unresponsive and suffered memory lapses

16   throughout his hearing.     However, the record reveals that Li-

17   Shang understood the questions posed but tried to avoid

18   admitting facts damaging to his claims.            Li-Shang had no

19   difficulty remembering specific dates, such as his birthday,

20   his wedding anniversary, and the birthdates of two of his

21   children, and his memory lapsed only when he was asked for

22   dates relevant to his family planning claim.

                                      4
1        We do not review the agency’s determination that Li-Shang

2    failed     to   satisfy   his   burden   of   proof   with   adequate

3    corroboration because Li-Shang abandons any challenge to

4    those findings, relying solely on his competency argument to

5    excuse his failure to satisfy his burden.         See Yueqing Zhang

6    v. Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005)

7    (considering claim abandoned because petitioner did not argue

8    it in his appellate brief).

9        For the foregoing reasons, the petition for review is

10   DENIED.    As we have completed our review, any stay of removal

11   that the Court previously granted in this petition is VACATED,

12   and any pending motion for a stay of removal in this petition

13   is DISMISSED as moot.      Any pending request for oral argument

14   in this petition is DENIED in accordance with Federal Rule of

15   Appellate Procedure 34(a)(2) and Second Circuit Local Rule

16   34.1(b).

17                         FOR THE COURT:
18                         Catherine O’Hagan Wolfe, Clerk of Court




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