         12-3201
         Lin v. Holder
                                                                                       BIA
                                                                                Vomacka, IJ
                                                                               A087 464 816


                          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 28th day of October, two thousand thirteen.
 5
 6       PRESENT:
 7                JOSÉ A. CABRANES,
 8                RICHARD C. WESLEY,
 9                DEBRA ANN LIVINGSTON,
10                     Circuit Judges.
11       _____________________________________
12
13       XIA YAN LIN, MENGZHU HUANG,
14                Petitioners,
15
16                       v.                                     12-3201
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONERS:              Gary J. Yerman, Yerman & Associates,
24                                     LLC, New York, New York.
25
26       FOR RESPONDENT:               Stuart F. Delery, Acting Assistant
27                                     Attorney General; Blair T. O’Connor,
28                                     Assistant Director; Remi Da Rocha-
 1                             Afodu, Trial Attorney, Office of
 2                             Immigration Litigation, United
 3                             States Department of Justice,
 4                             Washington, D.C.
 5
 6        UPON DUE CONSIDERATION of this petition for review of a

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

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

 9   is DENIED.

10        Petitioners Xia Yan Lin and Mengzhu Huang,    natives and

11   citizens of China, seek review of a July 23, 2012, decision

12   of the BIA granting Lin withholding of removal and

13   affirming, in part, a September 13, 2010, decision of

14   Immigration Judge (“IJ”) Alan A. Vomacka, denying Lin’s

15   application for asylum.    In re Xia Yan Lin, Mengzhu Huang,

16   Nos. A087 464 816/817 (B.I.A. July 23, 2012), aff’g Nos.

17   A087 464 816/817 (Immig. Ct. N.Y. City Sept. 10, 2010).      We

18   assume the parties’ familiarity with the underlying facts

19   and procedural history in this case.

20   I.   Jurisdiction

21        As an initial matter, when the petition for review was

22   filed, our jurisdiction to consider it was questionable

23   because the BIA had remanded the matter to the IJ for the

24   completion of required background investigations pursuant to

25   8 C.F.R. § 1003.47(h). See Matter of M- D-, 24 I. & N. Dec.

                                     2
 1   138, 141 (BIA 2007) (finding that when a case is remanded to

 2   the IJ for the completion of background checks pursuant to

 3   § 1003.47(h), the IJ has full jurisdiction over the case and

 4   “no final order exists”); Matter of Alcantara-Perez, 23 I. &

 5   N. Dec. 882, 883-85 (BIA 2006) (holding that “when a

 6   proceeding is remanded to the [IJ] for background checks,”

 7   the IJ will enter an order and “[t]hat order then becomes

 8   the final administrative order in the case”); see also

 9   Vakker v. Attorney General of U.S., 519 F.3d 143, 147 (3d

10   Cir. 2008) (holding that when the BIA remands a case to the

11   IJ for background checks, the IJ’s decision following remand

12   becomes the “final order” of removal).

13       However, it is not necessary to address whether the

14   BIA’s order in this case constituted a final order of

15   removal because proceedings before the IJ have now

16   completed.   As no prejudice to the Government is apparent,

17   we may consider the petition for review on the merits.

18   See Herrera-Molina v. Holder, 597 F.3d 128, 132 (2d Cir.

19   2010) (holding that a premature petition for review from a

20   non-final order of removal may be cured, and ripen into a

21   valid petition for review, if a final order of removal has

22   been entered by the time the petition is heard, and the

23   respondent suffers no prejudice).

                                   3
 1   II. Merits

 2       Under the circumstances of this case, we review the

 3   IJ’s decision as modified by the BIA decision.     See Xue Hong

 4   Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.

 5   2005).   The applicable standards of review are

 6   well-established.    See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng

 7   v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

 8       Title 8, Section 1158(a)(3) of the United States Code

 9   provides that no court shall have jurisdiction to review the

10   agency’s finding that an asylum application was untimely

11   under 8 U.S.C. § 1158(a)(2)(B).    Notwithstanding that

12   provision, this Court retains jurisdiction to review

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

14   § 1252(a)(2)(D).    In order to determine whether jurisdiction

15   exists in an individual case, the Court must “study the

16   arguments asserted” in a petition for review to determine,

17   “regardless of the rhetoric employed in the petition,

18   whether it merely quarrels over the correctness of the

19   factual findings or justification for the discretionary

20   choices, in which case the court would lack jurisdiction, or

21   whether it instead raises a ‘constitutional claim’ or

22   ‘question of law,’” in which case those particular issues


                                    4
 1   could be addressed.   Xiao Ji Chen v. U.S. Dep’t of Justice,

 2   471 F.3d 315, 329 (2d Cir. 2006).

 3       Petitioners’ argument that the IJ erred by requiring

 4   Lin to show that she filed the asylum application within one

 5   year of her arrival in the United States by only a

 6   preponderance of the evidence, rather than by clear and

 7   convincing evidence, fails to raise a colorable question of

 8   law. Not only does the IJ’s decision clearly reflect that he

 9   applied the correct legal standard, but Petitioners are

10   essentially alleging that the IJ erred by holding Lin to a

11   lower burden of proof.   See Barco-Sandoval v. Gonzales, 516

12   F.3d 35, 40 (2d Cir. 2008) (“[W]e lack jurisdiction to

13   review any legal argument that is so insubstantial and

14   frivolous as to be inadequate to invoke federal-question

15   jurisdiction.”).

16       Similarly, although Petitioners raise a question of law

17   by arguing that the IJ ignored the entry date set forth in

18   the Notice to Appear, both Notices to Appear state that

19   Huang and Lin entered at an unknown date, and Petitioners’

20   argument is apparently based on a handwritten notation,

21   reflecting the date Lin claimed to have entered at a

22   hearing.   There is no support for their contention that this

23   handwritten date establishes the date of entry.
                                   5
 1       Petitioners’ challenges to the weight accorded to a

 2   photocopy of Lin’s passport, and the IJ’s reliance on her

 3   demeanor and an apparent inconsistency in her testimony,

 4   “dispute[] the correctness of the IJ’s fact-finding” and his

 5   exercise of discretion, and do not raise a constitutional

 6   claim or question of law.   Xiao Ji Chen, 471 F.3d at 329.

 7       Finally, Petitioners’ claims that Huang raised separate

 8   claims for relief, and that the REAL ID Act is inapplicable

 9   to the credibility of Lin’s testimony regarding the

10   timeliness of her asylum application, are unexhausted and we

11   decline to consider them.   See Lin Zhong v. U.S. Dep’t of

12   Justice, 480 F.3d 104, 107 n.1, 119-20 (2d Cir. 2007).

13   Regardless, these claims too appear to be without merit, as

14   both the IJ and BIA noted that Huang did not assert an

15   independent claim, and Petitioners conceded the

16   applicability of the REAL ID Act before the BIA.

17       For the foregoing reasons, the petition for review is

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

19   removal that the Court previously granted in this petition

20   is VACATED, and any pending motion for a stay of removal in

21   this petition is DISMISSED as moot. Any pending request for

22   oral argument in this petition is DENIED in accordance with


                                   6
1   Federal Rule of Appellate Procedure 34(a)(2), and Second

2   Circuit Local Rule 34.1(b).

3                                 FOR THE COURT:
4                                 Catherine O’Hagan Wolfe, Clerk




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