     16-636
     Ouyang v. Sessions
                                                                                       BIA
                                                                                 Laforest, IJ
                                                                               A099 156 149

                               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 TO 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 for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   31st day of March, two thousand seventeen.
 5
 6   PRESENT:
 7            BARRINGTON D. PARKER,
 8            REENA RAGGI,
 9            DENNY CHIN,
10                 Circuit Judges.
11   _____________________________________
12
13   JUNMING OUYANG,
14            Petitioner,
15
16                        v.                                         16-636
17                                                                   NAC
18   JEFFERSON B. SESSIONS III, UNITED
19   STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                      Joshua Bardavid, New York, N.Y.
24
25   FOR RESPONDENT:                      Benjamin C. Mizer, Principal Deputy
26                                        Assistant Attorney General; Cindy S.
27                                        Ferrier, Assistant Director; Sunah
28                                        Lee, Trial Attorney, Office of
29                                        Immigration Litigation, United
30                                        States Department of Justice,
31                                        Washington, D.C.
1        UPON DUE CONSIDERATION of this petition for review of a

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

3    ORDERED, ADJUDGED, AND DECREED that the petition for review is

4    DISMISSED for lack of jurisdiction.

5        Petitioner Junming Ouyang, a native and citizen of China,

6    seeks review of a February 5, 2016, decision of the BIA affirming

7    an October 3, 2014, decision of an Immigration Judge (“IJ”).

8    In re Junming Ouyang, No. A099 156 149 (B.I.A. Feb. 5, 2016),

9    aff’g No. A099 156 149 (Immig. Ct. N.Y. City Oct. 3, 2014).   We

10   assume the parties’ familiarity with the underlying facts and

11   procedural history in this case.

12       As an initial matter, Ouyang has abandoned review of the

13   BIA’s 2016 decision by failing to challenge it in her brief.

14   Her sole challenge on appeal is to the BIA’s determination in

15   its 2013 decision that she did not establish extraordinary

16   circumstances to excuse the untimely filing of her asylum

17   application.   Under the circumstances of this case, we have

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

19   Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).

20       An asylum application must be filed within one year of an

21   applicant’s arrival in the United States, absent changed or

22   extraordinary circumstances.    8 U.S.C. § 1158(a)(2)(B), (D).


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1    Under § 1158(a)(3), we generally lack jurisdiction to review

2    the agency’s findings regarding changed or extraordinary

3    circumstances;    however,      we    have    jurisdiction        to    review

4    “constitutional    claims      or    questions     of   law.”      8    U.S.C.

5    § 1252(a)(2)(D).       To ascertain whether a petitioner raises

6    constitutional challenges or questions of law over which we have

7    jurisdiction,     we    must    “study       the   argument[]          asserted

8    [and] . . . determine, regardless of the rhetoric employed in

9    the petition, whether it merely quarrels over the correctness

10   of the factual finding or justification for the discretionary

11   choices, in which case the court would lack jurisdiction.”

12   Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d

13   Cir. 2006).

14       Ouyang’s assertion that the BIA engaged in impermissible

15   factfinding is contradicted by the record and merely employs

16   the rhetoric of a question of law to challenge the correctness

17   of the BIA’s discretionary determination that she failed to

18   establish extraordinary circumstances.                  See id.        Although

19   Ouyang argues that the BIA improperly rejected the IJ’s finding

20   that she did not realize she was out of status while her

21   application for adjustment of status was pending between 2004

22   and 2008, the BIA did not rely on any facts that the IJ had not


                                           3
1    already found.      The BIA determined that Ouyang did not

2    establish extraordinary circumstances because she did not apply

3    for asylum until nearly 5 years after her status lapsed, which

4    was entirely consistent with the IJ’s finding that Ouyang was

5    out of status between 2004 and 2008.         Although the IJ appears

6    to   have   concluded    that   Ouyang     established     exceptional

7    circumstances when she was out status from 2004 to 2008, based

8    on the pursuit of her application for adjustment of status, the

9    BIA disagreed and was free to do so.        See Xiao Ji Chen v. U.S.

10   Dep’t of Justice, 434 F.3d 144, 154 (2d Cir. 2006) (“The plain

11   language of the statute specifically provides that ‘changed’

12   or ‘extraordinary’ circumstances must be established ‘to the

13   satisfaction of the Attorney General,’—language that ‘clearly

14   entrusts the decision to the Attorney General’s discretion.’”

15   (internal citations omitted)), amended in part on reh’g on other

16   grounds, 471 F.3d 315 (2d Cir. 2006); see also Noble v. Keisler,

17   505 F.3d 73 (2d Cir. 2007) (holding that the BIA has the

18   authority to reach a different result on discretion than that

19   reached by the Immigration Judge).           Because Ouyang’s sole

20   argument is merely a challenge to the BIA’s discretionary

21   finding     that   she   failed       to   establish     extraordinary




                                       4
1    circumstances, we lack jurisdiction over her petition for

2    review.

3        For the foregoing reasons, the petition for review is

4    DISMISSED for lack of jurisdiction.     As we have completed our

5    review, any stay of removal that the Court previously granted

6    in this petition is VACATED.       Any pending request for oral

7    argument in this petition is DENIED in accordance with Federal

8    Rule of Appellate Procedure 34(a)(2), and Second Circuit Local

9    Rule 34.1(b).

10                               FOR THE COURT:
11                               Catherine O’Hagan Wolfe, Clerk




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