     13-4325 (L)
     Yang v. Lynch
                                                                                       BIA
                                                                                 Abrams, IJ
                                                                               A047 558 890
                          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 TO 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 for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   2nd day of July, two thousand fifteen.
 5
 6   PRESENT:
 7            GUIDO CALABRESI,
 8            REENA RAGGI,
 9            RICHARD C. WESLEY,
10                 Circuit Judges.
11   _____________________________________
12
13   JIN JUN YANG, AKA SAN SAO YANG, AKA
14   BAO S. YANG, AKA SANBAO YANG, AKA
15   WENSHOU GUY, AKA GUY WENSHOU,
16                  Petitioner,
17
18                   v.                                              13-4325 (L)
19                                                                   14-1824 (Con)
20                                                                   NAC
21   LORETTA E. LYNCH, UNITED STATES
22   ATTORNEY GENERAL,
23                 Respondent.
24   _____________________________________
25
26
27   FOR PETITIONER:                     Michael Lehach, Lehach & Filippa,
28                                       LLP, New York, New York.
29
1    FOR RESPONDENT:            Joyce R. Branda, Acting Assistant
2                               Attorney General; Terri J. Scadron,
3                               Assistant Director; Kathryn L.
4                               Deangelis, Trial Attorney, Office of
5                               Immigration Litigation, United
6                               States Department of Justice,
7                               Washington, D.C.

8        UPON DUE CONSIDERATION of these petitions for review of

9    decisions of the Board of Immigration Appeals (“BIA”), it is

10   hereby ORDERED, ADJUDGED, AND DECREED that the petitions for

11   review are DENIED.

12       Petitioner Jin Jun Yang, a native and citizen of the

13   People’s Republic of China, in the lead petition seeks review

14   of an October 18, 2013 decision of the BIA affirming a September

15   28, 2012, decision of an Immigration Judge (“IJ”) denying his

16   application for asylum, withholding of removal, and relief

17   under the Convention Against Torture (“CAT”).     See In re Jin

18   Jun Yang, No. A047 558 890 (B.I.A. Oct. 18, 2013), aff’g No.

19   A047 558 890 (Immig. Ct. N.Y.C. Sept. 28, 2012).         In the

20   consolidated petition, he seeks review of the BIA’s May 1, 2014

21   denial of his timely motion to reopen.   See In re Jin Jun Yang,

22   No. A047 558 890 (B.I.A. May 1, 2014).   We assume the parties’

23   familiarity with the underlying facts and procedural history

24   in this case.
                                    2
1         Our review in the lead petition is limited to whether Yang

2    established his eligibility for deferral of removal under the

3    CAT, on the basis of the Chinese government’s investigation into

4    his sister’s dealings.         Yang has abandoned his claims for

5    asylum and withholding, and his claim that his violations of

6    China’s family planning policies provide a basis for CAT relief

7    is unexhausted. See 8 U.S.C. § 1252(d)(1); Lin Zhong v. U.S.

8    Dep’t of Justice, 480 F.3d 104, 107 (2d Cir. 2007); Yueqing Zhang

9    v. Gonzales, 426 F.3d 540, 541 n.1 (2d Cir. 2005).

10        The agency’s denial of deferral of removal and its denial

11   of   reopening   rested   on   factual   findings,    which   we    lack

12   jurisdiction to review due to Yang’s criminal history. See 8

13   U.S.C.   § 1252(a)(2)(C),(D);      Ortiz-Franco      v.   Holder,    No.

14   13-3610, 2015 WL 1449077, at *4 (2d Cir. Apr. 1, 2015).             Yang

15   alleges no legal errors in the agency’s initial determination

16   that he had not established his eligibility for CAT deferral.

17   In denying his motion to reopen, the BIA found, inter alia, that

18   the motion did not set forth a prima facie case for relief.         Yang

19   challenges this statement as “conclusory” and “unsupported,”

20   but the BIA’s decision shows that it reviewed the submitted

21   evidence, and then found both that it was not new, material,
                                       3
1    and previously unavailable, and that it failed to set forth a

2    prima facie case for CAT relief.    Id.   The latter finding is

3    dispositive and is a factual finding, which we lack jurisdiction

4    to review.   See 8 U.S.C. § 1252(a)(2)(C),(D); INS v. Abudu, 485

5    U.S. 94, 104-05 (1988); Ortiz-Franco, 2015 WL 1449077, at *4.

6        For the foregoing reasons, the petitions for review are

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

8    that the Court previously granted is VACATED, and any pending

9    motion for a stay of removal is DISMISSED as moot.   Any pending

10   request for oral argument is DENIED in accordance with Federal

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

12   Rule 34.1(b).

13
14                                FOR THE COURT:
15                                Catherine O=Hagan Wolfe,
16                                Clerk of Court




                                    4
