         11-168-ag
         Weng v. Holder
                                                                                         BIA
                                                                                  Schoppert, IJ
                                                                                 A089 250 122
                           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 9th day of March, two thousand twelve.
 5
 6       PRESENT:
 7                RICHARD C. WESLEY,
 8                RAYMOND J. LOHIER, JR.,
 9                SUSAN L. CARNEY,
10                    Circuit Judges.
11       _________________________________________
12
13       JIA CAN WENG,
14                Petitioner,
15
16                        v.                                       11-168-ag
17                                                                 NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _________________________________________
22
23       FOR PETITIONER:                JP Sarmiento, Cleveland, OH
24
25       FOR RESPONDENT:                Tony West, Assistant Attorney
26                                      General; Terri J. Scadron, Assistant
27                                      Director; Kathryn L. Deangelis,
28                                      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

 4   is DENIED.

 5       Petitioner Jia Can Weng, a native and citizen of the

 6   People’s Republic of China, seeks review of the December 17,

 7   2010 decision of the BIA dismissing for lack of jurisdiction

 8   his appeal from the December 17, 2008 decision of

 9   Immigration Judge (“IJ”) Douglas B. Schoppert, finding him

10   removable as charged.     See In re Jia Can Weng, No. A089 250

11   122 (B.I.A. Dec. 17, 2010), dismissing the appeal of No.

12   A089 250 122 (Immig. Ct. N.Y. City Dec. 17, 2008).    We

13   assume the parties’ familiarity with the underlying facts

14   and procedural history of the case.

15       Under the circumstances of this case, we have reviewed

16   both the IJ’s and the BIA’s opinions “for the sake of

17   completeness.”   Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.

18   2008) (per curiam).     We review “de novo constitutional

19   challenges to a decision by the BIA and legal conclusions

20   drawn by [the] BIA, such as the determination that the BIA

21   lacks jurisdiction.”     Mirza Ali v. Mukasey, 525 F.3d 171,

22   173 (2d Cir. 2008) (citing Arenas-Yepes v. Gonzales, 421


                                     2
 1   F.3d 111, 114 (2d Cir. 2005)).     However, we review “the

 2   BIA’s factual findings under the substantial evidence

 3   standard.”   Id. (citing Xiao Ji Chen v. U.S. Dep’t of

 4   Justice, 471 F.3d 315, 333-34 (2d Cir. 2006)).     We treat the

 5   BIA’s factual findings as “conclusive unless any reasonable

 6   adjudicator would be compelled to conclude to the contrary.”

 7   Dong Zhong Zheng v. Mukasey, 552 F.3d 277, 284 (2d Cir.

 8   2009) (internal quotation marks omitted); 8 U.S.C.

 9   § 1252(b)(4)(B).

10       We find that the BIA did not err in dismissing Weng’s

11   appeal for lack of jurisdiction.     See Matter of Shih, 20 I.

12   & N. Dec. 697 (BIA 1993); 8 C.F.R. § 1003.39.     The record is

13   clear that Weng knowingly and voluntarily withdrew his

14   application for relief and waived his right to appeal.       See

15   Matter of Rodriguez-Diaz, 22 I. & N. Dec. 1320 (BIA 2000).

16   The transcript demonstrates that the IJ gave Weng and his

17   counsel an opportunity to discuss the possibility of

18   withdrawing his application to avoid the entry of a finding

19   that his claims were frivolous, and, as the BIA noted, the

20   IJ confirmed the withdrawal and waiver with Weng directly,

21   asking him whether he wished to withdraw his application,

22   whether he wished to waive his right to appeal, and whether


                                   3
 1   he had made both of those decisions voluntarily and of his

 2   own free will.

 3       We conclude that Weng was afforded a full and fair

 4   hearing and was provided a reasonable opportunity to present

 5   evidence on his own behalf.     See Peter Conrad Ali v.

 6   Mukasey, 529 F.3d 478, 490 (2d Cir. 2008).     The record

 7   reflects that the IJ admitted all of Weng’s documentary

 8   evidence, that both Weng and his wife testified on direct

 9   examination until Weng’s attorney stated that he had nothing

10   further, and that the IJ gave Weng’s attorney an additional

11   opportunity to elicit testimony from the couple after cross-

12   examination.     Only after hearing both Weng’s and his wife’s

13   testimony did the IJ raise the possibility of Weng

14   withdrawing his application.     Moreover, Weng does not

15   explain what more he would have offered in support of his

16   claim had he been given an opportunity to do so.

17       Finally, we reject Weng’s argument that the BIA erred

18   by failing to address his claim that the IJ denied him a

19   meaningful opportunity to present his case.     The BIA

20   explicitly stated that Weng’s claim that he was forced to

21   withdraw his application was without merit.     In addition,

22   the BIA’s analysis of whether Weng’s withdrawal was forced


                                     4
 1   and whether his withdrawal and waiver were voluntary are

 2   more than sufficient to establish that the BIA considered

 3   whether Weng was deprived of a full and fair hearing.     See

 4   Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008)

 5   (rejecting the notion that the agency must “expressly parse

 6   or refute on the record each individual argument or piece of

 7   evidence offered by the petitioner” (internal quotation

 8   marks omitted)).

 9       For the foregoing reasons, the petition for review is

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

11   removal that the Court previously granted in this petition

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

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

14   oral argument in this petition is DENIED in accordance with

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

16   Circuit Local Rule 34.1(b).

17                                 FOR THE COURT:
18                                 Catherine O’Hagan Wolfe, Clerk
19




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