         08-3851-ag
         Chen v. Holder
                                                                                       BIA
                                                                                  Weisel, IJ
                                                                                A76 980 171
                               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 1 st day of March, two thousand nine.
 5
 6       PRESENT:
 7                 ROSEMARY S. POOLER,
 8                 RICHARD C. WESLEY,
 9                 DEBRA ANN LIVINGSTON,
10                                Circuit Judges.
11       ______________________________________
12
13       JIAN ZHENG CHEN
14                Petitioner,
15
16                        v.                                    08-3851-ag
17                                                              NAC
18
19       ERIC H. HOLDER, JR.,
20       U.S. ATTORNEY GENERAL, * BUREAU OF
21       CITIZENSHIP AND IMMIGRATION SERVICES
22                Respondents.
23       __________________________________
24


                 *
               Pursuant to Federal Rule of Appellate Procedure
         43(c)(2), United States Attorney General Eric H. Holder Jr.
         is substituted for former Attorney General Michael B.
         Mukasey as Respondent in this case.
 1   FOR PETITIONER:           John Chang, Esq., New York, New
 2                             York.
 3
 4   F O R RESPONDENT:         Gregory G. Katsas, Assistant
 5                             Attorney General, Civil Division;
 6                             William C. Peachey, Assistant
 7                             Director; Mona Maria Yousif,
 8                             Attorney, Office of Immigration
 9                             Litigation, U.S. Department of
10                             Justice, Washington, D.C.
11
12        UPON DUE CONSIDERATION of this petition for review of a

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

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

15   review is DENIED.

16        Petitioner Jian Zheng Chen, a native and citizen of the

17   People’s Republic of China, seeks review of a July 22, 2008

18   order of the BIA affirming the April 25, 2007 decision of

19   Immigration Judge Robert D. Weisel denying for lack of

20   jurisdiction her motion to file a successive asylum

21   application.   In re Jian Zheng Chen, No. A76 980 171 (B.I.A.

22   July 22, 2008), aff’g No. A76 980 171 (Immig. Ct. N.Y. City

23   Apr. 25, 2007).     We assume the parties’ familiarity with the

24   underlying facts and procedural history in this case.

25        When the BIA does not adopt the decision of the IJ to

26   any extent, this Court reviews only the decision of the BIA.

27   See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).

28   We review the denial of a motion to reopen for abuse of

                                     2
1    discretion.   See Cekic v. INS, 435 F.3d 167, 170 (2d Cir.

2    2006).

3        As an initial matter, Chen’s brief to this Court does

4    not challenge the BIA’s finding that she could submit a

5    successive asylum application only in conjunction with a

6    properly filed motion to reopen.   See Matter of C-W-L-, 24

7    I.& N. Dec. 346, 350 (B.I.A. 2007); Yuen Jin v. Mukasey, 538

8    F.3d 143, 152 (2d Cir. 2008). Furthermore, Chen challenges

9    neither the BIA’s finding that the births of her two U.S.-

10   born children constituted changed personal circumstances

11   rather than changed country conditions, nor its

12   determination that she was not entitled to file a successive

13   asylum based on changed personal circumstances.     See Matter

14   of C-W-L, 24 I.&N. Dec. at 350; Yuen Jin, 538 F.3d at 152.

15   Nor does Chen revive before this Court the argument that she

16   raised before both the IJ and the BIA that jurisdiction over

17   her successive asylum application properly lay with the IJ.

18   Accordingly, Chen has waived those arguments.     See Yueqing

19   Zhang v. Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir.

20   2005).

21       Moreover, the BIA correctly found that the IJ did not

22   have jurisdiction over Chen’s motion to reopen based on


                                   3
1    changed country conditions.    An IJ has jurisdiction to

2    consider motions to reopen only until the applicant properly

3    files an appeal, at which point jurisdiction vests with the

4    BIA.    See 8 C.F.R. § 1003.23(b)(1) (providing that an IJ may

5    “reopen or reconsider any case in which he or she has made a

6    decision, unless jurisdiction is vested with the Board of

7    Immigration Appeals”); see also Matter of Patino, 23 I. & N.

8    Dec. 74, 76 (B.I.A. 2001) (stating that “until such time as

9    an appeal is properly before the Board, the Immigration

10   Judge has continuing jurisdiction to entertain motions

11   regarding proceedings that were previously before the

12   Immigration Judge”).    At the time Chen submitted her motion,

13   she had already filed an appeal from the IJ’s denial of her

14   application for relief with the BIA, and the BIA had issued

15   a final administrative order adjudicating that appeal.

16   Accordingly, jurisdiction over any motion to reopen in

17   Chen’s case had vested with the BIA, and, to the extent her

18   motion could be construed as a motion to reopen, it was not

19   properly before the immigration court.    8 C.F.R.

20   §§ 1003.2(a), 1003.23(b)(1); Matter of Patino, 23 I. & N.

21   Dec. at 76.

22          In addition, despite Chen’s arguments to the contrary,


                                    4
1    the BIA was not required to construe her appeal as a motion

2    to reopen.     Although Chen requested “remand,” she did not

3    make a motion to remand.     Cf. Matter of Coelho, 20 I.&N.

4    Dec. 464, 471 (B.I.A. 1992) (holding that “where a motion to

5    remand is really in the nature of a motion to reopen or a

6    motion to reconsider, it must comply with the substantive

7    requirements for such motions”).     Moreover, although she

8    asked the immigration court to reopen her case based on

9    changed country conditions, she never made that request of

10   the BIA.     Thus, the BIA reasonably interpreted Chen’s appeal

11   brief as asking it not to reopen her proceedings based on

12   changed country conditions but to find that the IJ erred in

13   failing to do so.     Accordingly, the BIA did not abuse its

14   discretion by not construing Chen’s “request for remand” as

15   a motion to remand or by failing to consider the merits of

16   her underlying motion to reopen.     See Kaur v. BIA, 413 F.3d

17   232, 233-34 (2d Cir. 2005).

18       Finally, the IJ and the BIA did not abuse their

19   discretion by failing to consider Chen’s application for CAT

20   relief, which was based on her illegal departure from China.

21   Because the IJ had no jurisdiction to any extent over Chen’s

22   motion to reopen,     8 C.F.R. §§ 1003.2(a), 1003.23(b)(1);

23   Matter of Patino, 23 I. & N. Dec. at 76, Chen’s application

24   for CAT relief was not properly before the IJ.      Moreover,


                                     5
1    because Chen did not renew her motion to reopen before the

2    BIA but rather asked the BIA to find that the IJ had erred

3    in not reopening her proceedings, her claim for CAT relief

4    was also not properly before the BIA, and the BIA’s failure

5    to specifically address it did not constitute an abuse of

6    discretion.   See Kaur, 413 F.3d at 233-34.

7         For the foregoing reasons, the petition for review is

8    DENIED.   As we have completed our review, the pending motion

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

10

11                               FOR THE COURT:
12                               Catherine O’Hagan Wolfe, Clerk
13
14
15




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