         07-3197-ag
         Chen v. Holder
                                                                                       BIA
                                                                                 Morace, IJ
                                                                               A098 775 949
                               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 2 nd day of February, two thousand ten.
 5
 6       PRESENT:
 7                JOHN M. WALKER, JR.,
 8                BARRINGTON D. PARKER,
 9                RICHARD C. WESLEY,
10                        Circuit Judges.
11       _______________________________________
12
13       SAI YING CHEN,
14                Petitioner,
15
16                        v.                                    07-3197-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., 1 ATTORNEY GENERAL
19       OF THE UNITED STATES, AND DEPARTMENT OF
20       JUSTICE,
21                 Respondents.
22       _______________________________________
23       FOR PETITIONER:         Bruno Joseph Bembi, Hempstead, New
24                               York.



                      1
                   Pursuant to Federal Rule of Appellate Procedure
             43(c)(2), Attorney General Eric H. Holder, Jr., is
             automatically substituted for former Attorney General
             Alberto Gonzales as a respondent in this case.
1
2    FOR RESPONDENTS:       Gregory G. Katsas, Acting Assistant
3                           Attorney General, Linda Wernery,
4                           Assistant Director, Sarah Maloney,
5                           Attorney, Office of Immigration
6                           Litigation, U.S. Department of
7                           Justice, Civil Division, Washington,
8                           D.C.

9        UPON DUE CONSIDERATION of this petition for review of a

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

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

12   review is DENIED in part and DISMISSED in part.

13       Sai Ying Chen, a native and citizen of China, seeks

14   review of the June 29, 2007 order of the BIA: (1) affirming

15   the October 3, 2005 decision of Immigration Judge (“IJ”)

16   Philip L. Morace pretermitting her application for asylum

17   and denying her application for withholding of removal and

18   relief under the Convention Against Torture (“CAT”); and (2)

19   denying her motion to remand.       In Sai Ying Chen, No. A098

20   775 949 (B.I.A. June 29, 2007), aff’g No. A098 775 949

21   (Immig. Ct. N.Y. City Oct. 3, 2005).       We assume the parties’

22   familiarity with the underlying facts and procedural history

23   of the case.

24       As an initial matter, we lack jurisdiction to review

25   the IJ’s decision insofar as it pretermitted as untimely



                                     2
1    Chen’s application for asylum.     See 8 U.S.C. § 1158(a)(3).

2    While we retain jurisdiction to review constitutional claims

3    and “questions of law,” id. § 1252(a)(2)(D), Chen has made

4    no such argument.    Rather, Chen challenges the probative

5    weight the IJ assigned to evidence she submitted, a matter

6    largely within the IJ’s discretion.     See Xiao Ji Chen v.

7    U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006).

8    The balance of Chen’s arguments misinterpret both the

9    regulations and the agency’s decision.     We lack jurisdiction

10   to review such frivolous arguments even when they purport to

11   be “questions of law.”    See Barco-Sandoval v. Gonzales, 516

12   F.3d 35, 40, 41 n.6 (2d Cir. 2008); see also 8 U.S.C.

13   § 1158 (a)(3).    We therefore dismiss these aspects the

14   petition for review.

15       In addition, Chen waived any challenge to the agency’s

16   denial of her application for withholding of removal and CAT

17   relief.   Although her brief reiterates the standards for

18   each, that does not constitute a meaningful challenge.        See

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

20   (2d Cir. 2005).

21       Lastly, we review for abuse of discretion the BIA’s

22   denial of Chen’s motion to remand.     Li Yong Cao v. Dep't of



                                    3
1    Justice, 421 F.3d 149, 151 (2d Cir. 2005); see also Kaur v.

2    BIA, 413 F.3d 232, 233 (2d Cir. 2005) (per curiam).

3    Contrary to Chen’s arguments, the BIA did not abuse its

4    discretion in declining to remand her case based on the U.S.

5    Department of State’s 2005 Country Report on Human Rights

6    Practices (“2005 Country Report”) and our decision in Shou

7    Yung Guo v. Gonzales, 463 F.3d 109 (2d Cir. 2006).    Chen’s

8    brief quotes portions of these two sources, but does not

9    explain how they impact her eligibility for relief.

10   Further, as the BIA noted, the 2005 Country Report does “not

11   reflect that it is more likely than not [that she] would be

12   persecuted on account of a protected ground.”   See Matter of

13   J-H-S-, 24 I. & N. Dec. 196, 200 (BIA 2007); Matter of J-W-

14   S-, 24 I. & N. Dec. 185 (BIA 2007).   Finally, Chen fails to

15   acknowledge that both the agency and this Court have since

16   considered the documents addressed in Shou Yung Guo v.

17   Gonzales and found that they do not demonstrate an alien’s

18   prima facie eligibility for relief.   Jian Hui Shao v.

19   Mukasey, 546 F.3d at 138; Matter of J-H-S-, 24 I. & N. Dec.

20   at 200; Matter of J-W-S-, 24 I. & N. Dec. at 185. 2

            2
             Chen failed to respond to our order permitting the
       parties to file letter briefs addressing the relevance of
       Jian Hui Shao v. Mukasey, 546 F.3d 138 (2d Cir. 2008) to
       this case.

                                   4
1        Accordingly, the BIA did not abuse its discretion in

2    denying Chen’s motion to remand.   See Cao, 421 F.3d at 151;

3    Kaur, 413 F.3d at 233.

4        For the foregoing reasons, the petition for review is

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

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

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

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

9    Any pending request for oral argument in this petition is

10   DENIED in accordance with Federal Rule of Appellate

11   Procedure 34(a)(2).

12
13                              FOR THE COURT:
14                              Catherine O’Hagan Wolfe, Clerk
15
16
17                              ___________________________




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