         08-0148-ag
         Chao v. BIA
                                                                                       BIA
                                                                               A077 643 059
                                                                               A072 020 152
                         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 5 th day of October,           two thousand ten.
 5
 6       PRESENT:
 7                JOSÉ A. CABRANES,
 8                ROBERT D. SACK,
 9                DEBRA ANN LIVINGSTON,
10                         Circuit Judges.
11       ______________________________________
12
13
14       YUAN LIU CHAO, REN XIN YANG,
15                Petitioners,
16                                                              08-0148-ag
17                     v.                                       NAC
18
19
20       BOARD OF IMMIGRATION APPEALS,
21                Respondent.
22
23       ______________________________________
24
25       FOR PETITIONERS:              Donald Paragon, New York, New York.
26
27       FOR RESPONDENT:               Gregory G. Katsas, Assistant
28                                     Attorney General, Civil Division;
29                                     Michele Gorden Latour, Assistant
30                                     Director; Brendan P. Hogan, Trial
31                                     Attorney, Office of Immigration
32                                     Litigation, Civil Division, United
33                                     States Department of Justice,
1                              Washington, D.C.
2
3        UPON DUE CONSIDERATION of this petition for review of a

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

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

6    is DENIED in part and DISMISSED in part.

7        Petitioners, Yuan Liu Chao and Ren Xin Yang, natives

8    and citizens of China, seek review of a December 19, 2007,

9    order of the BIA denying their motion to reopen.    In re Yuan

10   Liu Chao, Ren Xin Yang, Nos. A077 643 059, A072 020 152

11   (B.I.A. Dec. 19, 2007).    We assume the parties’ familiarity

12   with the underlying facts and procedural history of the

13   case.

14       A.   Motion to Reopen

15       As an initial matter, we lack jurisdiction to consider

16   petitioners’ arguments insofar as they challenge the

17   agency’s underlying decision denying their application for

18   relief from removal.   See 8 U.S.C. § 1252(b)(1); Malvoisin

19   v. INS, 268 F.3d 74, 75 (2d Cir. 2001); Ke Zhen Zhao v. U.S.

20   Dep’t of Justice, 265 F.3d 83, 90 (2d Cir. 2001).    Thus, the

21   only agency decision before the Court is the BIA’s December

22   2007 decision denying petitioners’ motion to reopen.

23       The applicable standards of review are well-


                                     2
1    established.   See Jian Hui Shao v. Mukasey, 546 F.3d 138,

2    168-69 (2d Cir. 2008).     An alien may only file one motion to

3    reopen and must do so within 90 days of the agency’s final

4    administrative decision.     8 C.F.R. § 1003.2(c)(2).

5    Petitioners’ motion was indisputably untimely because it was

6    filed more than three years after the BIA entered its final

7    order of removal.    However, the time limitation does not

8    apply to a motion to reopen seeking to apply for asylum

9    “based on changed circumstances arising in the country of

10   nationality or in the country to which deportation has been

11   ordered, if such evidence is material and was not available

12   and could not have been discovered or presented at the

13   previous hearing.”    8 C.F.R. § 1003.2(c)(3)(ii).

14       We have previously reviewed the agency’s consideration

15   of evidence similar to that which petitioners submitted and

16   have found no error in its conclusion that such evidence is

17   insufficient to establish either changed country conditions

18   excusing the time limit for filing a motion to reopen or a

19   realistic chance of forced sterilization.     See Jian Hui

20   Shao, 546 F.3d at 169-73.     Moreover, contrary to

21   petitioners’ argument, the BIA reasonably declined to accord

22   probative weight to the village committee notices they



                                     3
1    submitted because the record contained inconsistent evidence

2    regarding how those documents were obtained.     See Xiao Ji

3    Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 335, 342 (2d

4    Cir. 2006) (holding that the weight to be afforded to

5    documentary evidence lies largely within the discretion of

6    the tribunal).   The BIA’s refusal to credit the notices was

7    all the more reasonable in light of the IJ’s underlying

8    adverse credibility determination.   See Qin Wen Zheng v.

9    Gonzales, 500 F.3d 143, 146-47 (2d Cir. 2007).

10       B. Constitutional Claims

11       We lack jurisdiction to review petitioners’ unexhausted

12   argument that delays in their removal proceedings violated

13   their due process rights.   Although the BIA does not have

14   jurisdiction to adjudicate constitutional issues, see United

15   States v. Gonzalez-Roque, 301 F.3d 39, 47-48 (2d Cir.2002),

16   such claims must nevertheless be administratively exhausted

17   when the BIA may decide the underlying issues of fairness of

18   process.   See Theodoropoulos v. INS, 358 F.3d 162, 172-73

19   (2d Cir.2004).   Therefore, the petition for review is

20   dismissed to this extent.

21       Although we lack jurisdiction to review a BIA member’s

22   decision to resolve a particular appeal unilaterally, and



                                    4
1    without opinion, pursuant to the agency’s streamlining

2    procedures, see Kambolli v. Gonzales, 449 F.3d 454, 463 (2d

3    Cir. 2006), here, petitioners challenge the

4    constitutionality of those streamlining regulations – an

5    argument over which we retain jurisdiction, see 8 U.S.C.

6    § 1252(a)(2)(D).     However, it is well-settled that the

7    agency’s streamlining regulations do not violate the Due

8    Process Clause.     See Kambolli, 449 F.3d at 459 (citing Yu

9    Sheng Zhang v. U.S. Dep’t of Justice, 362 F.3d 155, 156-59

10   (2d Cir. 2004).

11       Finally, petitioners failed to exhaust their argument

12   that their removal would deprive their U.S. citizen child of

13   his right to family unity and his right to remain in the

14   United States.     See Theodoropoulos, 358 F.3d at 172-73.

15   Even if petitioners’ failure to exhaust this claim raises a

16   jurisdictional question, we assume hypothetical jurisdiction

17   to consider petitioners’ argument because the

18   “jurisdictional issues are complex and the substance of the

19   claim is . . . plainly without merit.”     Ivanishvili v. U.S.

20   Dep’t of Justice, 433 F.3d 332, 338 (2d Cir 2006).     Indeed,

21   it is well-settled that “an infant’s status as a citizen and

22   his dependence on his alien parent do not prevent the



                                     5
1    deportation of the alien parent.”     Emciso-Cardozo v. INS,

2    504 F.2d 1252, 1253 (2d Cir. 1974).

3        For the foregoing reasons, the petition for review is

4    DENIED in part and DISMISSED in part.     As we have completed

5    our review, any stay of removal that the Court previously

6    granted in this petition is VACATED, and any pending motion

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

8    Any pending request for oral argument in this petition is

9    DENIED in accordance with Federal Rule of Appellate

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

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




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