     17-1020
     Chen v. Whitaker
                                                                                    BIA
                                                                              Poczter, IJ
                                                                           A206 051 199
                             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 10th day of January, two thousand nineteen.
 5
 6   PRESENT:
 7            JOHN M. WALKER, JR.,
 8            DENNIS JACOBS,
 9            DENNY CHIN,
10                 Circuit Judges.
11   _____________________________________
12
13   XIAOLIN CHEN,
14            Petitioner,
15
16                      v.                                       17-1020
17                                                               NAC
18   MATTHEW G. WHITAKER, ACTING
19   UNITED STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                    Jim Li, Flushing, NY.
24
25   FOR RESPONDENT:                    Chad A. Readler, Acting Assistant
26                                      Attorney General; Carl McIntyre,
27                                      Assistant Director; Nancy E.
28                                      Friedman, Senior Litigation
29                                      Counsel, Office of Immigration
30                                      Litigation, United States
31                                      Department of Justice, Washington,
32                                      DC.
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

4    is DISMISSED.

5           Petitioner Xiaolin Chen, a native and citizen of the

6    People’s Republic of China, seeks review of a March 14, 2017,

7    decision of the BIA affirming a February 19, 2016, decision

8    of    an    Immigration         Judge      (“IJ”)       pretermitting           her     asylum

9    application as untimely.                   In re Xiaolin Chen, No. A206 051

10   199 (B.I.A. Mar 14, 2017), aff’g No. A206 051 199 (Immig. Ct.

11   N.Y. City Feb. 19, 2016).                  We assume the parties’ familiarity

12   with the underlying facts and procedural history in this case.

13          We lack jurisdiction to review the agency’s pretermission

14   of Chen’s asylum application as untimely because she does not

15   raise a colorable constitutional claim or question of law.*

16   See 8 U.S.C. §§ 1158(a)(3), 1252(a)(2)(D).

17            An alien is ineligible for asylum “unless the alien

18   demonstrates          by    clear       and     convincing         evidence        that      the

19   application has been filed within 1 year after the date of




     * The decision under review is final because the IJ issued a final grant of withholding of removal
     on July 12, 2018. See Herrera-Molina v. Holder, 597 F.3d 128, 132 (2d Cir. 2010) (finding
     jurisdiction where petition was filed from non-final order, but agency subsequently issued final
     ruling).
                                                    2
1    the    alien’s    arrival      in    the       United   States.”            8    U.S.C.

2    § 1158(a)(2)(B).          An application may be considered outside

3    the one-year deadline, however, “if the alien demonstrates .

4    . . the existence of changed circumstances which materially

5    affect      the       applicant’s      eligibility             for        asylum      or

6    extraordinary         circumstances        relating     to     the        delay,”   id.

7    § 1158(a)(2)(D),        and    the   application          is   filed        “within    a

8    reasonable       period    given     those       circumstances,”            8    C.F.R.

9    § 1208.4(a)(4)(ii), (a)(5).

10         Our      jurisdiction     to    review        the       agency’s          findings

11   regarding the timeliness of an asylum application and the

12   circumstances          excusing      untimeliness              is       limited       to

13   “constitutional claims or questions of law.”                            See 8 U.S.C.

14   §§ 1158(a)(3), 1252(a)(2)(D).                  When assessing jurisdiction,

15   we    “study    the    arguments      asserted      .     .    .     to    determine,

16   regardless of the rhetoric employed in the petition, whether

17   it    merely    quarrels      over   the       correctness         of     the   factual

18   findings or justification for the discretionary choices, in

19   which case the court would lack jurisdiction or whether it

20   instead raises a ‘constitutional claim’ or “question of law,’

21   in which case the court could exercise jurisdiction to review

22   those particular issues.”              Xiao Ji Chen v. U.S. Dep’t of

                                                3
1    Justice, 471 F.3d 315, 329 (2d Cir. 2006).                For jurisdiction

2    to attach, such claims must be colorable.                Barco-Sandoval v.

3    Gonzales, 516 F.3d 35, 40-41 (2d Cir. 2008).                       We review

4    constitutional claims and questions of law de novo.                    Pierre

5    v. Holder, 588 F.3d 767, 772 (2d Cir. 2009).

6           Chen argues that the agency erred as a matter of law in

7    pretermitting asylum by deeming her father’s arrest in July

8    2012 to be the date of her changed circumstances, rather than

9    when    her   brother   told   her        in   early   2013   that   Chinese

10   authorities were seeking her out.              This argument that the IJ

11   erred    in     determining    when       changed      circumstances     that

12   materially      affected    Chen’s        asylum    eligibility      occurred

13   “merely quarrels over the correctness of the factual findings

14   or justification for the discretionary choices,” which we do

15   not have jurisdiction to review.               Xiao Ji Chen, 471 F.3d at

16   329; see also Weinong Lin v. Holder, 763 F.3d 244, 249 (2d

17   Cir.    2014)    (holding   that     agency     must    consider     specific

18   circumstances to determine whether “a change . . . has

19   increased the petitioner’s risk profile”).

20          Nor did Chen state a colorable due process claim, which

21   requires a showing “that she was denied a full and fair

22   opportunity to present her claims” or “that the IJ or BIA

                                           4
1    otherwise deprived her of fundamental fairness.”                        Xiao Ji

2    Chen v. U.S. Dep’t of Justice, 434 F.3d 144, 155 (2d Cir.

3    2006).     Chen contends that the IJ deprived her of due process

4    by refusing to accept a late filed psychiatric report and

5    refusing to allow the psychiatrist to testify.                   However, Chen

6    did not engage a psychiatrist or submit the report until after

7    her merits hearing.           Accordingly, the IJ was within her

8    discretion in declining to consider the evidence.                         See 8

9    C.F.R. § 1003.31(c) (“The Immigration Judge may set and extend

10   time    limits   for   the    filing       of   applications      and    related

11   documents and responses thereto, if any.                  If an application

12   or   document    is    not    filed    within     the     time    set    by   the

13   Immigration Judge, the opportunity to file that application

14   or document shall be deemed waived.”); Dedji v. Mukasey, 525

15   F.3d 187, 191 (2d Cir. 2008) (“[A]n IJ has broad discretion

16   to set and extend filing deadlines.”).                And there was no due

17   process violation because Chen could have obtained the report

18   earlier.     See Xiao Ji Chen, 434 F.3d at 155.              Moreover, Chen

19   never    offered      the    psychiatrist        as   a   witness       and   the

20   psychiatrist himself stated that he would not be available

21   for any hearings.

22          For the foregoing reasons, the petition for review is

                                            5
1   DISMISSED.   As we have completed our review, any pending

2   request for oral argument in this petition is DENIED in

3   accordance with Federal Rule of Appellate Procedure 34(a)(2),

4   and Second Circuit Local Rule 34.1(b).

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




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