         08-2812-ag
         Lao v. Holder
                                                                                       BIA
                                                                                DeFonzo, IJ
                                                                               A098 906 053
                              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 Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 21 st day of April, two thousand ten.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                       Chief Judge,
 9                GUIDO CALABRESI,
10                DEBRA ANN LIVINGSTON,
11                       Circuit Judges.
12       _______________________________________
13
14       CHUN HUA LAO,
15                Petitioner,
16
17                           v.                                 08-2812-ag
18                                                              NAC
19       ERIC H. HOLDER, JR., 1 UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       ______________________________________
23
24
25       FOR PETITIONER:               Alexander K. Yu, New York, New York.


                         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 the respondent in this case.
1    FOR RESPONDENT:          George G. Katsas, Assistant Attorney
2                             General, Leslie McKay, Assistant
3                             Director, Anna E. Nelson, Trial
4                             Attorney, Office of Immigration
5                             Litigation, Civil Division, United
6                             States Department of Justice,
7                             Washington, D.C.
8
9        UPON DUE CONSIDERATION of this petition for review of a

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

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

12   is DISMISSED in part DENIED in part.

13       Petitioner Chun Hua Lao, a native and citizen of China,

14   seeks review of a May 13, 2008, order of the BIA denying her

15   motion to remand and affirming the May 31, 2006, decision of

16   Immigration Judge (“IJ”) Paul A. DeFonzo pretermitting her

17   application for asylum. 2   In re Chun Hua Lao, No. A0098 906

18   053 (B.I.A. May 13, 2008), aff’g No. A0098 906 053 (Immig.

19   Ct. N.Y. City May 31, 2006).    We assume the parties’

20   familiarity with the underlying facts and procedural history

21   in this case.

22       As an initial matter, we lack jurisdiction to review

23   the agency’s decision insofar it pretermitted as untimely

24   Lao’s application for asylum.       See 8 U.S.C. §§ 1158(a)(3),

25   1252(a)(2)(B).    While we retain jurisdiction to review


            2
                The IJ granted Lao withholding of removal to China.

                                     2
1    constitutional claims and “questions of law,” 8 U.S.C.

2    § 1252(a)(2)(D), Lao has made no such arguments.      See Saloum

3    v. USCIS, 437 F.3d 238 (2d Cir. 2006) (stating that a

4    petitioner may not create the jurisdiction that Congress

5    chose to remove simply by cloaking an abuse of discretion

6    argument in constitutional garb).     We dismiss the petition

7    for review to that extent, but proceed to consider the BIA’s

8    denial of Lao’s motion to remand.

9          A motion to remand that relies on newly available

10   evidence is held to the substantive requirements of a motion

11   to reopen. See Li Yong Cao v. U.S. Dep’t of Justice, 421

12   F.3d 149, 156-157 (2d Cir. 2005); In re Coelho, 20 I. & N.

13   Dec. 464, 471 (BIA 1992).   The BIA has “broad discretion” to

14   deny a motion to remand grounded on new evidence.      See Li

15   Yong Cao, 421 F.3d at 156-157 (citing INS v. Doherty, 502

16   U.S. 314, 323, 112 S. Ct. 719, 116 L. Ed. 2d 823 (1992)).

17   Permissible reasons to deny such a motion include the

18   movant’s failure to make out a prima facie case for asylum.

19   Id.   This Court reviews the BIA’s denial of a motion to

20   remand for abuse of discretion.     Id. at 157.

21         We find no error in the BIA’s refusal to remand Lao’s

22   case to the IJ based on her third pregnancy.      The IJ



                                   3
1    pretermitted Lao’s application for asylum as untimely,

2    finding that because she fled China in fear of its family

3    planning policy, the birth of her first two children was not

4    a “changed or extraordinary” circumstance excusing the

5    untimely filing of her asylum application.      See 8 U.S.C.

6    § 1158(a)(2)(D).   Nonetheless, the IJ granted Lao’s request

7    for withholding of removal to China.    In denying Lao’s

8    motion to remand, the BIA determined that her pregnancy with

9    her third child did not “represent a change in her

10   circumstances that would materially affect her eligibility

11   for asylum.”   We find no abuse of discretion in that

12   decision.   See Li Yong Cao, 421 F.3d at 151.

13       For the foregoing reasons, the petition for review is

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

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

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

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

18   Any pending request for oral argument in this petition is

19   DENIED in accordance with Federal Rule of Appellate

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

21                               FOR THE COURT:
22                               Catherine O’Hagan Wolfe, Clerk
23
24
25




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