         09-5261-ag
         Chen v. Holder
                                                                                       BIA
                                                                                Mulligan, IJ
                                                                               A078 400 044
                           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 29 th day of September, 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       MING XIA CHEN,
15                Petitioner,
16                                                              09-5261-ag
17                        v.                                    NAC
18
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       ______________________________________
23
24       FOR PETITIONER:               Oleh R. Tustaniwsky, New York, New
25                                     York.
26
27
28       FOR RESPONDENT:               Tony West, Assistant Attorney
29                                     General; Nancy E. Friedman, Senior
30                                     Litigation Counsel; Ann Carroll
31                                     Varnon, Attorney, Office of
32                                     Immigration Litigation, Civil
33                                     Division, United States Department
34                                     of Justice, 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

4    is DENIED.

5        Petitioner Ming Xia Chen, a native and citizen of the

6    People’s Republic of China, seeks review of a November 30,

7    2009, order of the BIA vacating immigration judge (“IJ”)

8    Thomas J. Mulligan’s February 7, 2008, order denying Chen’s

9    application for asylum, withholding, and CAT relief and

10   reinstating its prior final order of removal.     In re Ming

11   Xia Chen, No. A078 400 044 (B.I.A. Nov. 30, 2009), vacating

12   No. A078 400 044 (Immig. Ct. N.Y. City Feb. 7, 2008).     We

13   assume the parties’ familiarity with the underlying facts

14   and procedural history of the case.

15       To the extent the BIA reached its own determination

16   that the IJ lacked jurisdiction over Chen’s proceedings, the

17   Court reviews only the decision of the BIA.     See Yan Chen v.

18   Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).     Insofar as it

19   agreed with the IJ’s finding that Chen failed to demonstrate

20   a well-founded fear of persecution, the Court reviews both

21   the IJ’s and the BIA’s opinions “for the sake of

22   completeness.”   See Zaman v. Mukasey, 514 F.3d 233, 237 (2d



                                   2
1    Cir. 2008) (quoting Wangchuck v. DHS, 448 F.3d 524, 528 (2d

2    Cir. 2006)).    The applicable standards of review are well-

3    established.    See 8 U.S.C. § 1252(b)(4)(B); see also Yanqin

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

5        The BIA found that because the IJ lacked jurisdiction

6    over Chen’s motion to reopen, the IJ had erred in reopening

7    her proceedings to consider her successive application for

8    relief.   Accordingly, the BIA vacated the IJ’s decision and

9    reinstated its prior order of removal.    Because Chen does

10   not raise this issue in her brief, she has waived any

11   challenge to that dispositive finding.    See Gui Yin Liu v.

12   INS, 508 F.3d 716, 723 n.6 (2d Cir. 2007) (deeming arguments

13   not raised before the Court abandoned).

14       Nevertheless, we note that the BIA did not err in

15   finding that the IJ lacked jurisdiction to reopen Chen’s

16   proceedings and consider her new application for relief

17   because jurisdiction had vested with the BIA when she

18   appealed the IJ’s decision denying her original application

19   for relief.    See 8 C.F.R. § 1003.23(b)(1).

20       For the foregoing reasons, the petition for review is

21   DENIED.   As we have completed our review, any pending motion

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



                                    3
1   Any pending request for oral argument in this petition is

2   DENIED in accordance with Federal Rule of Appellate

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

4                              FOR THE COURT:
5                              Catherine O’Hagan Wolfe, Clerk
6
7
8




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