         12-4763
         Chen v. Holder
                                                                                       BIA
                                                                                   Segal, IJ
                                                                               A029 822 176

                               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 3rd day of November, two thousand fourteen.
 5
 6       PRESENT:
 7                JON O. NEWMAN,
 8                DENNIS JACOBS,
 9                PIERRE N. LEVAL,
10                     Circuit Judges.
11       _____________________________________
12
13       MING JIE CHEN,
14                Petitioner,
15
16                        v.                                    12-4763
17                                                              NAC
18
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _____________________________________
23
24       FOR PETITIONER:                Gary J. Yerman, New York, New York.
25
26       FOR RESPONDENT:                Stuart F. Delery, Assistant Attorney
27                                      General; Ada E. Bosque, Senior

         08152014-B3-2
 1                             Litigation Counsel; Puneet Cheema,
 2                             Trial Attorney, Office of
 3                             Immigration Litigation, United
 4                             States Department of Justice,
 5                             Washington, D.C.
 6
 7           UPON DUE CONSIDERATION of this petition for review of a

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

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

10   is DENIED in part and in part DISMISSED.

11           Ming Jie Chen, a native and citizen of China, seeks

12   review of a November 8, 2012, decision of the BIA affirming

13   the December 29, 2010, decision of Immigration Judge (“IJ”)

14   Alice Segal, denying his applications for asylum,

15   withholding of removal, relief under the Convention Against

16   Torture (“CAT”), and cancellation of removal.     In re Ming

17   Jie Chen, No. A029 822 176 (B.I.A. Nov. 8, 2012), aff’g No.

18   A029 822 176 (Immig. Ct. N.Y. City Dec. 29, 2010).       We

19   assume the parties’ familiarity with the underlying facts

20   and procedural history of this case.

21           Under the circumstances of this case, we have reviewed

22   the IJ’s decision as supplemented by the BIA.     See Yan Chen

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

24   applicable standards of review are well established.          See

25


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 1   8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d

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

 3   Asylum, Withholding of Removal, and CAT Relief

 4           Chen applied for asylum, withholding of removal, and

 5   CAT relief based, in part, on his claim that he fears

 6   persecution because he has had two children in violation of

 7   China’s population control program.     For largely the same

 8   reasons as this Court set forth in Jian Hui Shao v. Mukasey,

 9   546 F.3d 138 (2d Cir. 2008), we find no error in the

10   agency’s determination that Chen failed to demonstrate his

11   eligibility for relief.     See id. at 158-72.   The testimony

12   at Chen’s hearing indicated that the elder of his two U.S.

13   citizen daughters, who was eighteen years old at the time of

14   his 2010 hearing, would not necessarily accompany him if he

15   were removed to China, and that the country conditions

16   evidence indicates that Chinese nationals with more than one

17   child do not violate the family planning policy if all but

18   one of their children reside overseas.     See id. at 143, 170.

19           We further find no error in the agency’s determination

20   that Chen failed to demonstrate his eligibility for CAT

21   relief based on his illegal departure from China.     See Mu

22   Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156, 159-60 (2d


     08152014-B3-2                   3
 1   Cir. 2005) (finding that a petitioner is not “entitled to

 2   CAT protection based solely on the fact that she is part of

 3   the large class of persons who have illegally departed

 4   China.”).

 5   Cancellation of Removal

 6           We lack jurisdiction to review the agency’s

 7   “determination of whether exceptional and extremely unusual

 8   hardship is present for the purposes of cancellation of

 9   removal . . ., except in those rare cases where the BIA

10   decision on whether this kind of hardship exists is made

11   without rational justification or based on an erroneous

12   legal standard, or rests on fact-finding which is flawed by

13   an error of law.”     Mendez v. Holder, 566 F.3d 316, 322 (2d

14   Cir. 2009) (internal quotation marks and citations omitted).

15   However, we retain jurisdiction to review constitutional

16   claims and “questions of law.”      8 U.S.C. § 1252(a)(2)(D).

17   We lack jurisdiction to review any legal argument that “does

18   not even reach the level of being colorable.”      Barco-

19   Sandoval v. Gonzales, 516 F.3d 35, 40 (2d Cir. 2008).

20           Chen does not raise a colorable question of law.

21   Contrary to his contention, the agency explicitly considered

22   Chen’s alleged hardship factors cumulatively.      See In re


     08152014-B3-2                   4
 1   Monreal-Aguinaga, 23 I. & N. Dec. 56, 64-65 (BIA 2001).             In

 2   addition, because the record contains evidence to support

 3   the agency’s determination that Chen’s eldest U.S. citizen

 4   daughter would remain in the United States if he were

 5   removed, his challenge to that finding merely quarrels with

 6   the correctness of the IJ’s factual findings.          See Xiao Ji

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

 8   2006).          Accordingly, his petition for review is dismissed

 9   for lack of jurisdiction to the extent that it challenges

10   the agency’s denial of cancellation of removal.          See Mendez,

11   566 F.3d at 322; see also Barco-Sandoval, 516 F.3d at 40.

12           For the foregoing reasons, this petition for review is

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

14   our review, any stay of removal that the Court previously

15   granted in this petitions is VACATED, and any pending motion

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

17   Any pending request for oral argument in this petition is

18   DENIED in accordance with Federal Rule of Appellate

19   Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).

20                                      FOR THE COURT:
21                                      Catherine O’Hagan Wolfe, Clerk
22




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