                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-23-2003

Wang v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-3823




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                                                          NOT PRECEDENTIAL

     UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


                                   No. 02-3823


                              CHUN LING WANG,

                                             Petitioner

                                        v.

                      JOHN ASHCROFT, Attorney General
                            of the United States,

                                             Respondent


                          Petition for Review of an Order
                       of the Board of Immigration Appeals
                                   (A76-240-633)


                   Submitted Under Third Circuit LAR 34.1(a)
                              December 1, 2003

         Before: SLOVITER, ALITO and FRIEDMAN,* Circuit Judges

                           (Filed: December 23, 2003 )


                           OPINION OF THE COURT




*   Hon. Daniel M. Friedman, United States Senior Circuit Judge for the Federal
    Circuit, sitting by designation.
SLOVITER, Circuit Judge.

       Petitioner Chun Ling Wang petitions for review of an order of the Board of

Immigration Appeals (“BIA”) for his removal. Wang raises two issues: 1) whether the

BIA’s affirmance without opinion of the Immigration Judge’s (“IJ’s”) decision satisfied

the condition set out in 8 C.F.R. § 3.1(a)(7)(ii); and 2) whether failure of the BIA to

satisfy these conditions constitutes a violation of his due process rights.

       It is not clear whether Wang is challenging the procedure adopted by the BIA

incorporated in its streamlining regulations. If that is his challenge, this Court has

recently sustained the validity of the streamlining regulations in our en banc opinion in

Dia v. Ashcroft, No. 02-2460. If, instead, Wang is arguing that this was an inappropriate

case for the BIA to apply the streamlining procedure, that is not subject to judicial review.

The BIA’s decision to apply the streamlining regulations to a particular case is a matter

committed to its discretion and is unreviewable. On the other hand, if Wang is

challenging the IJ’s decision to enter a final order of removal on the ground that it is not

supported by substantial evidence, we do have jurisdiction to review that issue.

       The Immigration and Nationality Act (INA) provides for withholding of removal

in certain circumstances. 8 U.S.C. § 1231(b)(3). However, the Supreme Court has stated

that the alien must demonstrate a “clear probability” of persecution in order to be eligible

for such relief. See INS v. Cardoza-Fonseca, 480 U.S. 421, 445-49 (1987). Wang’s brief

does not refer to any evidence that would support his allegations of fear of persecution.



                                              2
That alone should be sufficient to warrant denial of his petition for review.

       We consider Wang’s second issue, claiming that the transcript of his hearing is so

replete with clerical errors and omissions that it constitutes a violation of due process.

While there do seem to be some clerical errors, particularly unnecessary and unexplained

duplication, we do not believe that they reach the extreme of constituting a due process

violation. Wang has not pointed to any material omissions, which would present a more

serious problem. However, the nature of the omissions can be deduced from other

references in the hearing transcript. Assuming arguendo that there were some omissions,

possibly because they were asides and not spoken on the record, the alleged omissions to

which Wang refers do not provide the basis for his alleged fear of persecution. We agree

with the Government that any errors made were harmless or nonmaterial. Moreover, as

the Government’s brief points out, Wang failed to point out these errors in the

transcription by appealing to the Board which would have been in the position to direct

some remedial action. Inasmuch as Wang failed to exhaust his administrative remedies,

he cannot now argue that he is entitled to a remand based on the allegedly incomplete

transcript.

       We see nothing fundamentally unfair in the proceeding before the IJ. We see no

reason to hold that the BIA abused its discretion in applying these streamlining

regulations in this particular case.

       Accordingly, we will deny Wang’s petition for review.



                                              3
TO THE CLERK:

         Please file the foregoing opinion.


                                     /s/ Dolores K. Sloviter
                                     Circuit Judge
