         08-3428-ag
         Lin v. Holder
                                                                                        BIA
                                                                                  Brennan, IJ
                                                                                A099 429 066
                                                                                A099 429 067
                                  UNITED STATES COURT OF APPEALS
                                      FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.     CITATION TO SUMMARY ORDERS
     FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1
     AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1.     IN A BRIEF OR OTHER PAPER IN WHICH A
     LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST
     ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:
     “(SUMMARY ORDER).” A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER
     TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED
     BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS
     PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
     HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE
     ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE
     DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.


 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 21 st day of December, two thousand                nine.
 5
 6       PRESENT:
 7                JOSEPH M. McLAUGHLIN,
 8                JOSÉ A. CABRANES,
 9                RICHARD C. WESLEY,
10                         Circuit Judges.
11       _______________________________________
12
13       MEI LIN, YI XIAO HUANG,
14                Petitioners,
15
16                           v.                                 08-3428-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., 1 UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________


                         1
                   Pursuant to Federal Rule of Appellate Procedure
             43(c)(2), Attorney General Eric H. Holder, Jr., is
             automatically substituted for former Attorney General
             Michael B. Mukasey as respondent in this case.
 1   FOR PETITIONERS:        Richard Tarzia, Belle Mead, New
 2                           Jersey.
 3
 4   FOR RESPONDENT:         Michael F. Hertz, Deputy Assistant
 5                           Attorney General, Civil Division,
 6                           Ernesto H. Molina, Jr., Assistant
 7                           Director, Drew C. Brinkman, Trial
 8                           Attorney, Office of Immigration
 9                           Litigation, U.S. Department of
10                           Justice, Washington, D.C.
11
12       UPON DUE CONSIDERATION of this petition for review of a

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

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

15   review is DENIED in part and DISMISSED in part.

16       Mei Lin and Yi Xiao Huang, both natives and citizens of

17   China, seek review of the June 16, 2008 order of the BIA:

18   (1) vacating the May 30, 2006 decision of Immigration Judge

19   (“IJ”) Noel A. Brennan granting Lin’s application for

20   asylum; (2) pretermitting Lin’s application for asylum and

21   denying her application for withholding of removal and

22   relief under the Convention Against Torture (“CAT”); and (3)

23   denying Lin’s motion to remand. 2   In re Mei Lin and Yi Xiao

24   Huang, Nos. A099 429 066/067 (B.I.A. June 16, 2008), aff’g



            2
             Mei Lin’s asylum application included her husband,
       Yi Xiao Huang, as a derivative applicant. The BIA’s
       decision discussed only Lin’s eligibility for asylum and
       related relief. Therefore, for the sake of clarity, this
       order refers only to Lin throughout.

                                   2
1    Nos. A099 429 066/067 (Immig. Ct. N.Y. City May 30, 2006).

2    We assume the parties’ familiarity with the underlying facts

3    and procedural history of the case.

4        As an initial matter, we lack jurisdiction to review

5    the BIA’s decision insofar as it pretermitted as untimely

6    Lin’s application for asylum.       See 8 U.S.C. § 1158(a)(3).

7    While we retain jurisdiction to review constitutional claims

8    and “questions of law,”    8 U.S.C. § 1252(a)(2)(D), Lin has

9    made no such argument.    Rather, Lin challenges the BIA’s

10   discretionary determination that she did not show changed

11   circumstances sufficient to excuse the untimeliness of her

12   asylum application, which is precisely the type of argument

13   that we lack jurisdiction to review.       Xiao Ji Chen v. U.S.

14   Dep’t of Justice, 471 F.3d 315, 329 (2d Cir. 2006).       We

15   dismiss the petition for review to that extent, and proceed

16   to review Lin’s challenge to the BIA’s denial of her

17   application for withholding of removal and CAT relief.

18       Because the BIA vacated the IJ’s decision, we review

19   only the decision of the BIA.       See Yan Chen v. Gonzales, 417

20   F.3d 268, 271 (2d Cir. 2005).       The applicable standards of

21   review are well-established.    See, e.g., Yanqin Weng v.

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


                                     3
1        The BIA did not err in denying Lin’s application for

2    withholding of removal and CAT relief.     See Jian Hui Shao v.

3    Mukasey, 546 F.3d 138 (2d Cir. 2008).     Contrary to Lin’s

4    arguments that the BIA failed to consider the “extensive”

5    country conditions evidence that she presented, we have

6    rejected the notion that the agency must “expressly parse or

7    refute on the record each individual argument or piece of

8    evidence offered by the petitioner.”     Id. at 169; Xiao Ji

9    Chen, 471 F.3d at 337 n.17. (“presum[ing] that [the agency]

10   has taken into account all of the evidence before [it],

11   unless the record compellingly suggests otherwise”).

12   Moreover, we have previously reviewed the BIA’s

13   consideration of evidence similar to that which Lin

14   submitted and found no error in its conclusion that such

15   evidence is insufficient to establish an objectively

16   reasonable fear of persecution.   See Jian Hui Shao, 546 F.3d

17   at 156-65.

18       Finally, the BIA did not abuse its discretion in

19   denying Lin’s motion to remand.   See Li Yong Cao v. Dep't of

20   Justice, 421 F.3d 149, 151 (2d Cir. 2005).     As the BIA

21   found, the “bulk” of her evidence was not previously

22   unavailable.   See 8 C.F.R. § 1003.2(c)(1).    With respect to


                                   4
1    the remaining evidence, the BIA acted well within its

2    discretion in finding that the record was sufficiently

3    complete such that remand was not warranted.

4        For the foregoing reasons, the petition for review is

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

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

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

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

9    Any pending request for oral argument in this petition is

10   DENIED in accordance with Federal Rule of Appellate

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

12
13
14                              FOR THE COURT:
15                              Catherine O’Hagan Wolfe, Clerk
16
17
18                              By:____________________________




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