     16-1072
     Mok v. Sessions
                                                                                        BIA
                                                                           Gordon-Uruakpa, IJ
                                                                                A201 110 851
                            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 for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   25th day of January , two thousand eighteen.
 5
 6   PRESENT:
 7            RALPH K. WINTER,
 8            ROSEMARY S. POOLER,
 9            GERARD E. LYNCH,
10                 Circuit Judges.
11   _____________________________________
12
13   AH MOY MOK, AKA MAK AH MOY, AKA MOY
14   MOK,
15             Petitioner,
16
17                     v.                                            16-1072
18                                                                   NAC
19   JEFFERSON B. SESSIONS III,
20   UNITED STATES ATTORNEY GENERAL,
21            Respondent.
22   _____________________________________
23
24   FOR PETITIONER:                   Scott E. Bratton, Margaret Wong &
25                                      Associates LLC, Cleveland, OH.
26
27   FOR RESPONDENT:                  Chad A. Readler, Acting Assistant
28                                      Attorney General, Jennifer P. Levings,
29                                      Senior Litigation Counsel, Kristen
30                                      Moresi, Trial Attorney, Office of
31                                      Immigration Litigation, United States
32                                      Department of Justice, Washington, DC.
33
1          UPON DUE CONSIDERATION of this petition for review of a

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

3    ORDERED, ADJUDGED, AND DECREED that the petition for review is

4    DISMISSED in part and DENIED in part.

5          Petitioner Ah Moy Mok, a native and citizen of Malaysia,

6    seeks review of a March 23, 2016, decision of the BIA affirming

7    a December 18, 2014, decision of an Immigration Judge (“IJ”)

8    denying Mok’s application for asylum, withholding of removal,

9    and relief under the Convention Against Torture (“CAT”).       In

10   re Ah Moy Mok, No. A201 110 851 (B.I.A. Mar. 23, 2016), aff’g

11   No. A201 110 851 (Immig. Ct. N.Y. City Dec. 18, 2014).   We assume

12   the parties’ familiarity with the underlying facts and

13   procedural history in this case.

14         “[W]e review the judgment of the IJ as modified by the BIA’s

15   decision—that is, minus [any] argument[s] for denying relief

16   that w[ere] rejected by the BIA.” Xue Hong Yang v. U.S. Dep’t

17   of Justice, 426 F.3d 520, 522 (2d Cir. 2005).    Accordingly, we

18   reach only the agency’s denial of Mok’s asylum claim as time

19   barred and its conclusion that she failed to establish that she

20   was a member of a legally cognizable particular social group.

21   Id.   Mok has waived any challenge to the denial of CAT relief

22   by not sufficiently arguing that claim in her brief.       Norton

23   v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998) (“Issues not

                                     2
1    sufficiently argued in the briefs are considered waived and

2    normally will not be addressed on appeal.”).

3        We dismiss the petition for lack of jurisdiction to the

4    extent Mok challenges the agency’s denial of asylum.     Our

5    jurisdiction to review the denial of asylum as untimely or the

6    agency’s findings regarding changed or extraordinary

7    circumstances is limited to “constitutional claims or questions

8    of law.”   8 U.S.C. § 1252(a)(2)(D), see 8 U.S.C. § 1158(a)(3).

9    Mok argues that more weight should have been given to the

10   obstacle posed by her illiteracy.   Because Mok’s challenge is

11   to the weight of the evidence, she is challenging a

12   discretionary determination and does not raise a constitutional

13   claim or question of law reviewable by this Court.     See Xiao

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

15   2006) (holding that “we remain deprived of jurisdiction to

16   review decisions under the INA when the petition for review

17   essentially disputes the correctness of an IJ’s fact-finding

18   or the wisdom of his exercise of discretion and raises neither

19   a constitutional claim nor a question of law.”).

20       We deny the petition as to Mok’s challenge to the denial

21   of withholding of removal.   To be eligible for withholding of

22   removal, Mok was required to “establish[] that it is more likely

23   than not that [her] life or freedom would be threatened” in

                                    3
1    Malaysia because of her “race, religion, nationality,

2    membership in a particular social group, or political opinion.”

3    Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004)

4    (internal quotation marks omitted); see 8 U.S.C.

5    §§ 1158(b)(1)(B)(i), 1231(b)(3)(A).    To be legally

6    cognizable, a particular social group must be “composed of

7    members who share a common immutable characteristic,

8    (2) defined with particularity, and (3) socially distinct

9    within the society in question.”    Paloka v. Holder, 762 F.3d

10   191, 196 (2d Cir. 2014) (quoting Matter of M-E-V-G-, 26 I. &

11   N. Dec. 227, 237 (B.I.A. 2014)).   We review factual findings

12   under the substantial evidence standard and questions of

13   law—including the question of whether a group constitutes a

14   particular social group—de novo.    Id. at 195.

15       Mok attacks the agency’s determination that she failed to

16   establish that she was a member of a legally cognizable

17   particular social group.   But the agency reasonably determined

18   that Mok’s proposed particular social group—“elderly, sick

19   ethnic Chinese women from Malaysia” or “sick elderly ethnic

20   Chinese women without employment to access needed health care

21   in Malaysia”—was not socially distinct.    Id. at 196 (“[W]hat

22   matters is whether society as a whole [perceives] a group as

23   socially distinct.”).      Mok testified that healthcare was

                                    4
1    available to ethnic Chinese women in Malaysia, but contended

2    that she would be unable to afford it because, as an older woman,

3    she would be unemployable.   But the evidence submitted by Mok

4    shows that the affordability of healthcare and unemployment are

5    widespread issues in Malaysia, not that older women are treated

6    or viewed with distinction in this area.

7         For the foregoing reasons, the petition for review is

8    DISMISSED in part and DENIED in part.

 9                                 FOR THE COURT:
10                                 Catherine O’Hagan Wolfe, Clerk




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