          09-1808-ag
          Chen v. Holder
                                                                                                               BIA
                                                                                                          Sichel, IJ
                                                                                                      A099 025 278
                                UNITED STATES COURT OF APPEALS
                                    FOR THE SECOND CIRCUIT

                                             SUMMARY ORDER
     R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER FILED ON OR AFTER J ANUARY
     1, 2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ’ S L OC A L
     R ULE 32.1.1. W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE
     F EDERAL A PPENDIX 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 Daniel Patrick Moynihan
 3        United States Courthouse, 500 Pearl Street, in the City of
 4        New York, on the 2 nd day of March, two thousand ten.
 5
 6        PRESENT:
 7
 8                 JOHN M. WALKER, JR.,
 9                 ROBERT A. KATZMANN,
10                 GERARD E. LYNCH,
11                         Circuit Judges.
12        _______________________________________
13
14        QIN CHEN,
15                         Petitioner,
16
17                         v.                                                     09-1808-ag
18                                                                                NAC
19        ERIC H. HOLDER, Jr., U.S. ATTORNEY
20        GENERAL,
21                 Respondent.
22        _______________________________________
23
24        FOR PETITIONER:                         Yimin Chen, New York, New York.
1    FOR RESPONDENT:        Tony West, Assistant Attorney
2                           General, Susan K. Houser, Senior
3                           Litigation Counsel, Justin R.
4                           Markel, Trial Attorney, Office of
5                           Immigration Litigation, Civil
6                           Division, United States Department
7                           of Justice, Washington, D.C.

1        UPON DUE CONSIDERATION of this petition for review of a

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

3    hereby ORDERED, ADJUDGED, AND DECREED, that the petition for

4    review is DENIED in part and DISMISSED in part.

5        Petitioner Qin Chen, a native and citizen of the

6    People’s Republic of China, seeks review of an April 1, 2009

7    order of the BIA, affirming the June 12, 2007 decision of

8    Immigration Judge (“IJ”) Helen Sichel denying Chen’s

9    applications for asylum, withholding of removal, and relief

10   under the Convention Against Torture (“CAT”).     In re Qin

11   Chen, No. A099 025 278 (B.I.A. Apr. 1, 2009), aff’g No. A099

12   025 278 (Immig. Ct. N.Y. City, June 12, 2007).     We assume

13   the parties’ familiarity with the underlying facts and

14   procedural history of the case.

15       Under the circumstances of this case, we review the

16   decision of the IJ as supplemented by the BIA.     See Yan Chen



                                  2
1    v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).        The

2    applicable standards of review are well-established.        See

3    8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d

4    510, 513 (2d Cir. 2009).

5        Chen claimed before the IJ that he had a well-founded

6    fear of persecution based on his opposition to China’s

7    family planning policy.     The IJ rejected that claim, making

8    alternate findings that: (1) Chen was not credible; and (2)

9    even if he were credible, he failed to meet his burden of

10   proof.   Before this Court, Chen fails to challenge the

11   latter finding, arguing only that the IJ’s credibility

12   finding was erroneous.     Because we conclude that addressing

13   the IJ’s alternative burden finding is not necessary to

14   avoid manifest injustice, we deem any challenge to that

15   finding waived.   See Yueqing Zhang v. Gonzales, 426 F.3d

16   540, 541 n.1, 545 n.7 (2d Cir. 2005.     That waiver is fatal

17   to Chen’s family planning claim.     See 8 U.S.C. §

18   1101(a)(42); see also Shunfu Li v. Mukasey, 529 F.3d 141,

19   146-47 (2d Cir. 2008).

20       To the extent Chen claims that he is eligible for


                                     3
1    asylum and withholding of removal based on his illegal

2    departure from China, he failed to exhaust that argument

3    before the BIA.   Because the Government has raised the

4    failure to exhaust in its brief to this Court, we decline to

5    transfer the claims insofar as they are based on his illegal

6    departure from China.   See Lin Zhong v. U.S. Dep’t of

7    Justice, 480 F.3d 104, 124 (2d Cir. 2007).

8        Chen also failed to exhaust before the BIA his argument

9    that he was eligible for CAT relief on the basis of his

10   illegal departure.   As that was the only basis for his CAT

11   claim before the IJ, we are without jurisdiction to consider

12   Chen’s arguments regarding CAT relief.    8 U.S.C.

13   § 1252(a)(2)(D); Karaj v. Gonzales, 462 F.3d 113, 119 (2d

14   Cir. 2006).

15       Finally, because Chen fails to sufficiently challenge

16   the agency’s denial of his motion to remand, we deem any

17   such argument waived.   See Yueqing Zhang, 426 F.3d at 541

18   n.1, 545 n.7.

19       For the foregoing reasons, the petition for review is

20   DENIED in part and DISMISSED in part.    As we have completed


                                   4
1   our review, any stay of removal that the Court previously

2   granted in this petition is VACATED, and any pending motion

3   for a stay of removal in this petition is DISMISSED as moot.

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




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