         10-507-ag
         Lu v. Holder
                                                                                       BIA
                                                                                  Nelson, IJ
                                                                               A073 667 318
                         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 eleven.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                     Chief Judge,
 9                ROBERT D. SACK,
10                DENNY CHIN,
11                    Circuit Judges.
12       _______________________________________
13
14       WEIZHEN LU,
15                Petitioner,
16
17                      v.                                      10-507-ag
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _______________________________________
23
24       FOR PETITIONER:               Matthew J. Archambeault,
25                                     Montano-Miranda & Archambeault,
26                                     Philadelphia, Pennsylvania.
27
28       FOR RESPONDENT:               Tony West, Assistant Attorney
29                                     General; Douglas E. Ginsburg,
1                            Assistant Director; Matthew B.
2                            George, Trial Attorney, Office of
3                            Immigration Litigation, United
4                            States Department of Justice,
5                            Washington, D.C.
6
7        UPON DUE CONSIDERATION of this petition for review of a

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

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

10   is DISMISSED in part and DENIED in part.

11       Weizhen Lu, a native and citizen of the People’s

12   Republic of China, seeks review of a January 7, 2010, order

13   of the BIA denying her motion to remand and affirming the

14   March 31, 2008, decision of Immigration Judge (“IJ”) Barbara

15   A. Nelson, which pretermitted her application for asylum and

16   denied her applications for withholding of removal, relief

17   under the Convention Against Torture (“CAT”), and

18   cancellation of removal.    In re Weizhen Lu, No. A073 667 318

19   (B.I.A. Jan. 7, 2010), aff’g No. A073 667 318 (Immig. Ct.

20   N.Y. City Mar. 31, 2008).    We assume the parties’

21   familiarity with the underlying facts and procedural history

22   in this case.

23       Lu challenges the agency’s denial of cancellation of

24   removal and withholding of removal, and the BIA’s denial of

25   her motion to remand.   Under the circumstances of this case,



                                    2
1    we review both the IJ’s and the BIA’s opinions.     See Jigme

2    Wangchuck v. Dep't of Homeland Sec., 448 F.3d 524, 528 (2d

3    Cir. 2006).     The applicable standards of review are well-

4    established.     See

5    8 U.S.C. § 1252(b)(4)(B); see also Manzur v. U.S. Dep’t of

6    Homeland Sec., 494 F.3d 281, 289 (2d Cir. 2007) ; Li Yong Cao

7    v. U.S. Dep't of Justice, 421 F.3d 149, 151 (2d Cir. 2005).

8    I.   Cancellation of Removal

9         We lack jurisdiction to consider Lu’s challenge to the

10   agency’s finding that she failed to demonstrate that her

11   children would suffer exceptional and extremely unusual

12   hardship as a result of her deportation.     See 8 U.S.C.

13   § 1252(a)(2)(B)(i); Barco-Sandoval v. Gonzales, 516 F.3d 35,

14   38-40 (2d Cir. 2008) .    Although we retain jurisdiction to

15   consider constitutional claims and questions of law, see

16   Barco-Sandoval, 516 F.3d at 39 , here Lu merely challenges

17   the agency’s weighing of her evidence of hardship and fails

18   to point to any legal error in the agency’s findings .      Thus,

19   she fails to raise a question of law over which we have

20   jurisdiction.     See id. ; see also Mendez v. Holder, 566 F.3d

21   316, 323 (2d Cir. 2009) (finding that the BIA “does not

22   commit an ‘error of law’ every time an item of evidence is


                                     3
1    not explicitly considered or is described with imperfect

2    accuracy” unless “some facts important to the subtle

3    determination of ‘exceptional and extremely unusual

4    hardship’ have been totally overlooked and others have been

5    seriously mischaracterized”); Xiao Ji Chen v. U.S. Dep’t of

6    Justice, 471 F.3d 315, 325-27, 329 (2d Cir. 2006)

7    (explaining that a “question of law” does not include a

8    challenge to the correctness of the agency’s “fact-finding

9    or the wisdom of [its] exercise of discretion”).

10   Consequently, we dismiss the petition insofar as it

11   challenges the agency’s denial of Lu’s application for

12   cancellation of removal.

13   II.   Withholding of Removal

14         Lu’s arguments regarding her eligibility for

15   withholding of removal based on the birth of her U.S.-

16   citizen children are largely foreclosed by the Court’s

17   decision in Jian Hui Shao v. Mukasey, 546 F.3d 138 (2d Cir.

18   2008).   Despite Lu’s argument, a reasonable fact-finder

19   would not be compelled to conclude that the BIA ignored any

20   material evidence that she submitted.   See id. at 169

21   (recognizing that the Court has rejected the notion that the

22   agency must “expressly parse or refute on the record each


                                    4
1    individual argument or piece of evidence offered by the

2    petitioner”); see also Xiao Ji Chen, 471 F.3d at 336 n.17

3    (presuming that the agency “has taken into account all of

4    the evidence before [it], unless the record compellingly

5    suggests otherwise”).   Moreover, the agency did not err in

6    declining to afford any evidentiary weight to a copy of a

7    letter from Lu’s village committee because that letter

8    lacked any indicia of authenticity.   See Xiao Ji Chen, 471

9    F.3d at 342 (finding that the weight afforded to the

10   applicant’s evidence in immigration proceedings lies largely

11   within the discretion of the agency); see Matter of H-L-H- &

12   Z-Y-Z-, 25 I. & N. Dec. 209, 214 & n.5 (B.I.A. 2010)

13   (holding that unsigned, unauthenticated documents, from a

14   “Street Resident Committee” and “Villager Committee,” that

15   fail to identify the authors, are entitled to minimal

16   weight, especially when the documents were allegedly

17   obtained from the authorities specifically for the purpose

18   of the hearing on the applicant’s behalf).   Consequently,

19   substantial evidence supports the agency’s determination

20   that Lu failed to demonstrate a likelihood of persecution in

21   China based on the birth of her four U.S.-citizen children.

22   See Manzur, 494 F.3d at 289.


                                    5
1    III.       Motion to Remand

2           The BIA may deny a motion to remand where: (1) a movant

3    failed to present previously unavailable material evidence;

4    (2) a movant failed to establish a prima facie case for the

5    relief sought; or (3) the relief sought is discretionary and

6    a movant failed to show that she warranted the relief sought

7    as a matter of discretion.    See Li Yong Cao, 421 F.3d at

8    156; Matter of Coelho, 20 I. & N. Dec. 464, 474 (B.I.A.

9    1992); see also

10   8 C.F.R. § 1003.2(c)(1) (requiring motions to reopen to

11   present evidence that is “material and was not available and

12   could not have been discovered or presented at the former

13   hearing”).

14          Here, the BIA did not abuse its discretion in denying

15   Lu’s motion to remand because it reasonably determined that

16   the psychological report regarding the hardship Lu’s

17   deportation would have on her U.S.-citizen children was

18   neither material nor previously unavailable.    See Xiao Ji

19   Chen, 471 F.3d at 342 (explaining that weight afforded to

20   the applicant’s evidence in immigration proceedings lies

21   largely within the discretion of the agency).    Indeed, to

22   the extent that the report discussed the psychological


                                    6
1    effect that Lu’s deportation could have on her children as

2    they would be returned to China, the BIA reasonably

3    determined that this information was available and could

4    have been presented at Lu’s hearing before the IJ.     See 8

5    C.F.R. § 1003.2(c)(1) .   Finally, the BIA did not abuse its

6    discretion in concluding that even if this information had

7    not been previously available, it was not material as Lu

8    testified that she would take her children with her if she

9    were removed.   Thus, the BIA did not abuse its discretion in

10   denying Lu’s motion to remand.     See Li Yong Cao, 421 F.3d at

11   151 (reviewing the BIA’s denial of a motion to remand for

12   abuse of discretion) .

13       For the foregoing reasons, the petition for review is

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

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

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

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

18   Any pending request for oral argument in this petition is

19   DENIED in accordance with Federal Rule of Appellate

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

21                                FOR THE COURT:
22                                Catherine O’Hagan Wolfe, Clerk
23
24


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