    11-3366-ag
    Tian v. Holder
                                                                                  BIA
                                                                              Lamb, IJ
                                                                          A076 836 850
                       UNITED STATES COURT OF APPEALS
                           FOR THE SECOND CIRCUIT
                                SUMMARY ORDER
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         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Thurgood Marshall United
    States Courthouse, 40 Foley Square, in the City of New York,
    on the 9th day of April, two thousand fourteen.

    PRESENT:
                     JON O. NEWMAN,
                     RALPH K. WINTER,
                     ROSEMARY S. POOLER,
                          Circuit Judges.

    _____________________________________

    JINGJING TIAN,
             Petitioner,

                      v.                                   11-3366
                                                           NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:                H. Raymond Fasano, New York, New
                                   York.

    FOR RESPONDENT:                Stuart F. Delery, Acting Assistant
                                   Attorney General; Douglas E.
                                   Ginsburg, Assistant Director; Deitz
                                   P. Lefort, Trial Attorney, Office of
                        Immigration Litigation, United
                        States Department of Justice,
                        Washington, D.C.

    UPON DUE CONSIDERATION of this petition for review of a

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

ORDERED, ADJUDGED, AND DECREED that the petition for review

is DISMISSED.

    Petitioner JingJing Tian, a native and citizen of

China, seeks review of a July 22, 2011, order of the BIA,

denying her motion to remand and affirming Immigration Judge

(“IJ”) Elizabeth A. Lamb’s June 29, 2009 order of removal.

In re JingJing Tian, No. A076 836 850 (B.I.A. July 22,

2011), aff’g No. A076 836 850 (Immig. Ct. N.Y. City June 29,

2009).   We assume the parties’ familiarity with the

underlying facts and procedural history in this case.

    Under the circumstances of this case, we have reviewed

both the IJ’s and BIA’s opinions “for sake of completeness.”

Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir. 2008).     The

applicable standards of review are well-established.     See 8

U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510,

513 (2d Cir. 2009).   We review the BIA’s denial of a motion

to remand for abuse of discretion.   Li Yong Cao v. Dep’t of

Justice, 421 F.3d 149, 151, 156-57 (2d Cir. 2005).



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    Pursuant to 8 U.S.C. § 1252(a)(2)(B)(i), we lack

jurisdiction to review the agency’s discretionary denials of

applications for adjustment of status and cancellation of

removal.   Thus, where, as here, the agency’s denial of

Tian’s motion to remand is predicated on a finding that, as

a matter of discretion, she does not merit adjustment of

status and cancellation of removal, we lack jurisdiction

over Tian’s challenge to that determination.    See also

8 U.S.C. § 1252(a)(2)(B)(i); Mariuta v. Gonzales, 411 F.3d

361, 365 (2d Cir. 2005) (holding that this Court lacks

jurisdiction to review the denial of reopening based on

underlying discretionary denial of adjustment of status).

Nevertheless, we retain jurisdiction over constitutional

claims and questions of law.    See 8 U.S.C. § 1252(a)(2)(D).

    While Tian argues that her petition sets forth

reviewable constitutional claims and questions of law, her

arguments merely “quarrel[] over the correctness of the

[BIA’s] factual findings or justification for [its]

discretionary choices,” which we lack jurisdiction to

review.    Barco-Sandoval v. Gonzales, 516 F.3d 35, 42 (2d

Cir. 2008) (citations omitted).    For example, Tian’s

argument that the BIA engaged in impermissible fact-finding


                               3
by assessing the bona fides of her marriage to Chan is

misplaced, as the BIA may consider evidence presented to it

in the first instance when adjudicating a motion remand

based on new evidence.    See Li Yong Cao, 421 F.3d at 156-57

(noting that a motion to remand that relies on newly

available evidence is held to the substantive requirements

of a motion to reopen); see also Jian Hui Shao v. Mukasey,

546 F.3d 138, 169 (2d Cir. 2008) (noting that the BIA has a

“duty” to explicitly consider evidence in support of motions

to reopen).

    Similarly, Tian’s argument that the BIA ignored

evidence of the bona fides of her marriage to Chan is

without merit.   See Xiao Ji Chen v. U.S. Dep’t of Justice,

471 F.3d 315, 337 n.17 (2d Cir. 2006) (noting that the

agency is presumed to have “taken into account all of the

evidence before [it], unless the record compellingly

suggests otherwise”).    Notwithstanding Tian’s suggestion to

the contrary, the agency is not required to “expressly parse

or refute on the record each individual argument or piece of

evidence offered by the petitioner.”    Jian Hui Shao, 546

F.3d at 169 (quotation omitted).    In denying remand, the BIA

explicitly found that Tian’s evidence concerning the bona


                               4
fides of her marriage to Chan was insufficient due to her

failure to explain: why she did not inform the IJ that she

had separated from her husband while seeking a continuance

for him to re-file an I-130 Petition For Alien Relative on

her behalf; the Department of Homeland Security’s contention

that she submitted a fraudulent divorce decree for her

marriage in China; or how she was able to quickly obtain a

divorce from her husband in China to facilitate a subsequent

marriage to another U.S. citizen when she had been unable to

do so during the continuances that the IJ granted from

December 2007 to June 2009.

    While Tian also argues that the BIA applied an overly

rigorous standard to her motion to remand, we reject this

attempt to frame a disagreement over the agency’s exercise

of discretion as a challenge to the applicable legal

standard.   See, e.g., Barco-Sandoval, 516 F.3d at 42 (“We

conclude that, despite the nomenclature used by

Barco-Sandoval, his assertion that he should have obtained

cancellation of removal under the applicable legal standard

constitutes a mere quarrel over the correctness of the

factual findings or justification for the discretionary

choices made by the agency, a quarrel that we lack

jurisdiction to review.” (quotation omitted)).
                              5
    For the foregoing reasons, the petition for review is

DISMISSED, as we lack jurisdiction over Tian’s challenges to

the BIA’s denial of her motion to remand, which was based on

the BIA’s discretionary determination that she did not merit

adjustment of status and cancellation of removal.   As we

have completed our review, any stay of removal that the

Court previously granted in this petition is VACATED, and

any pending motion for a stay of removal in this petition is

DISMISSED as moot.   Any pending request for oral argument in

this petition is DENIED in accordance with Federal Rule of

Appellate Procedure 34(a)(2), and Second Circuit Local Rule

34.1(b).

                            FOR THE COURT:
                            Catherine O’Hagan Wolfe, Clerk




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