         09-0270-ag
         Chen v. Holder
                                                                                       BIA
                                                                                Bukszpan, IJ
                                                                               A029 814 126
                            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 18 th day of February, two thousand               ten.
 5
 6       PRESENT:
 7                        GUIDO CALABRESI,
 8                        ROBERT A. KATZMANN,
 9                        DEBRA ANN LIVINGSTON,
10                               Circuit Judges.
11
12       _______________________________
13
14       WANG BIN CHEN,
15                Petitioner,
16
17                         v.                                   09-0270-ag
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL, 1
21                Respondent.
22       ______________________________________
23
24


                      1
                    Pursuant to Federal Rule of Appellate Procedure
             43(c)(2), Attorney General Eric H. Holder, Jr., is
             automatically substituted for former Acting Attorney
             General Mark Filip as respondent in this case.
 1   FOR PETITIONER:           Thomas V. Massucci, New York, New
 2                             York.
 3
 4   FOR RESPONDENT:           Tony West, Assistant Attorney
 5                             General; James A. Hunolt, Senior
 6                             Litigation Counsel; Craig A. Newell,
 7                             Jr., Trial Attorney, Office of
 8                             Immigration Litigation, United
 9                             States Department of Justice,
10                             Washington, D.C.
11
12       UPON DUE CONSIDERATION of this petition for review of a

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

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

15   is DENIED.

16       Wang Bin Chen, a native and citizen of China, seeks

17   review of a December 24, 2008, order of the BIA, affirming

18   the September 21, 2006, decision of Immigration Judge (“IJ”)

19   Joanna Miller Bukszpan, which pretermitted his application

20   for asylum and denied his applications for withholding of

21   removal and relief under the Convention Against Torture

22   (“CAT”).     In re Wang Bin Chen, No. A029 814 126 (B.I.A. Dec.

23   24, 2008), aff’g No. A029 814 126 (Immig. Ct. N.Y. City

24   Sept. 21, 2006).     We assume the parties’ familiarity with

25   the underlying facts and procedural history in this case.

26       Under the circumstances of this case, we review the

27   decision of the IJ as supplemented by the BIA.     See Yan Chen

28   v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).     The


                                     2
1    applicable standards of review are well-established.        See

2    Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008);

3    Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir. 2008).

4         Chen concedes that the IJ properly pretermitted his

5    application for asylum because he was statutorily ineligible

6    for such relief based on his conviction for an aggravated

7    felony. 2   See 8 U.S.C. § 1158(b)(2)(B)(i).   He argues,

8    however, that the agency erred in finding that he failed to

9    demonstrate his eligibility for withholding of removal under

10   8 U.S.C. § 1231(b)(3) based on the likelihood that he will

11   be forcibly sterilized in China and that he failed to

12   demonstrate his eligibility for withholding of removal under


             2
              We do not lack jurisdiction by virtue of Chen’s
       having committed an aggravated felony. Pursuant to
       8 U.S.C. § 1252(a)(2)(C), “no court shall have
       jurisdiction to review any final order of removal against
       an alien who is removable by reason of having committed”
       an aggravated felony. Although Chen was convicted of an
       aggravated felony, he was charged only with removability
       as an alien present in the United States without
       admission or parole and the resulting order of removal
       found him removable as charged. Although the IJ and the
       BIA evaluated Chen’s prior conviction for purposes of
       determining his eligibility for relief from removal, they
       did not find him removable on the basis of the aggravated
       felony. Consequently, the jurisdiction-stripping
       provision of § 1252(a)(2)(C) does not apply. See
       Alvarez-Santos v. INS, 332 F.3d 1245, 1253 (9th Cir.
       2003) (holding that 8 U.S.C. § 1252(a)(2)(C) “precludes
       judicial review only when an alien is actually determined
       to be removable and ordered removed on the basis of a
       covered criminal act”).

                                    3
1    8 U.S.C. § 1231(b)(3) and CAT relief based on the likelihood

2    that he will be imprisoned and tortured for “his membership

3    in a particular social group of Chinese citizens who have

4    been convicted of crimes while overseas.”

5        Substantial evidence supports the agency’s

6    determination that Chen did not establish his eligibility

7    for withholding of removal or CAT relief because he failed

8    to submit any country conditions evidence demonstrating a

9    likelihood that he would be forcibly sterilized, imprisoned,

10   or tortured in China.   See 8 C.F.R. § 1208.16; see also Jian

11   Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005).

12   Because the agency did not err in finding that Chen failed

13   to establish his eligibility for withholding of removal and

14   CAT relief, we need not consider his challenge to the

15   agency’s alternative finding that he was statutorily

16   ineligible for withholding of removal based on his

17   conviction for a particularly serious crime.   See 8 C.F.R.

18   § 1208.16.

19        For the foregoing reasons, the petition for review is

20   DENIED.   As we have completed our review, any stay of

21   removal that the Court previously granted in this petition

22   is VACATED, and any pending motion for a stay of removal in

23   this petition is DISMISSED as moot. Any pending request for


                                   4
1   oral argument in this petition is DENIED in accordance with

2   Federal Rule of Appellate Procedure 34(a)(2), and Second

3   Circuit Local Rule 34.1(b).

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




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