16-0321-cv
Qiao v. Lynch
                          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 ASUMMARY ORDER@). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

       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 13th day of January, two thousand seventeen.

PRESENT: REENA RAGGI,
                 DENNY CHIN,
                 RAYMOND J. LOHIER, JR.,
                                                    Circuit Judges.
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JIAN QIAO, AKA CHEN MING,
                                               Plaintiff-Appellant,
                 v.                                                       No. 16-0321-cv

LORETTA E. LYNCH, ATTORNEY GENERAL OF
THE UNITED STATES DEPARTMENT OF JUSTICE,
                                                Defendant-Appellee.
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FOR APPELLANT:                                    David Jason Rodkin, Law Offices of David J.
                                                  Rodkin, Esq., New York, New York.

FOR APPELLEE:                                    Kirti Vaidya Reddy and Christopher Connolly,
                                                 Assistant United States Attorneys, for Preet
                                                 Bharara, United States Attorney for the
                                                 Southern District of New York, New York,
                                                 New York.

          Appeal from a judgment of the United States District Court for the Southern

District of New York (Richard J. Sullivan, Judge).



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       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment entered on December 2, 2015, is AFFIRMED.

       Plaintiff Jian Qiao is a Chinese national who was granted asylum in 2001 on the

basis of a well-founded fear of political persecution. He here appeals the dismissal for

lack of subject-matter jurisdiction of his complaint challenging the reopening of his

removal proceedings based on evidence that he had returned to China on multiple

occasions after being granted asylum. We review de novo the dismissal of a complaint

for lack of subject-matter jurisdiction, accepting the alleged facts as true and drawing all

reasonable inferences in plaintiff’s favor. See Barrows v. Burwell, 777 F.3d 106, 111 (2d

Cir. 2015); Delgado v. Quarantillo, 643 F.3d 52, 54 (2d Cir. 2011). In so doing, we

assume the parties’ familiarity with the facts and procedural history of this case, which

we reference only as necessary to explain our decision to affirm.

       Qiao claims that the district court had jurisdiction to review the Immigration

Judge’s (“IJ’s”) reopening decision under 28 U.S.C. § 1331 and the Administrative

Procedure Act (“APA”), 5 U.S.C. §§ 701 et seq.1 Judicial review of agency action is not

available under the APA where such review is limited by another statute. See 5 U.S.C.

§ 701(a)(1); Delgado v. Quarantillo, 643 F.3d at 55. The Immigration and Nationality

Act precluded the district court’s review here. It states that “[j]udicial review of all

questions of law and fact, including interpretation and application of constitutional and

statutory provisions, arising from any action taken or proceeding brought to remove an


1
 Qiao has explicitly waived his claim of review jurisdiction under the collateral order
doctrine, and thus we do not consider it further.

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alien from the United States under this subchapter shall be available only in judicial

review of a final order under this section.” 8 U.S.C. § 1252(b)(9) (emphasis added).

Further, “a petition for review filed with an appropriate court of appeals in accordance

with this section shall be the sole and exclusive means for judicial review of an order of

removal entered or issued under any provision of this chapter.”          Id. § 1252(a)(5)

(emphasis added). Together, these provisions limit judicial review to determinations

whose substance is “inextricably linked” to final orders of removal, Delgado v.

Quarantillo, 643 F.3d at 55 (explaining that whether district court has jurisdiction will

turn on substance of relief that plaintiff seeks), and then only by courts of appeals, see

INS v. Chadha, 462 U.S. 919, 938 (1983) (stating that court of appeals is exclusive forum

for judicial review not only for final order of removal, but also for “all matters on which

the final [removal] order is contingent, rather than only those determinations made at the

[removal] hearing”).

       Like the district court, we conclude that the IJ’s challenged order reopening

removal proceedings against Qiao is inextricably linked to the removal proceedings, as

well as any removal order that may ultimately result from reopening those proceedings.

We reach this conclusion because any review of reopening would require consideration

of the merits of Qiao’s eligibility for removal—specifically, whether the United States

Immigration and Customs Enforcement’s proffered evidence was adequate to support a

finding that Qiao is no longer eligible for asylum and is, therefore, removable. Indeed,

this conclusion is confirmed by Qiao’s cursory attempt to argue the merits of whether

“return trips to the country of alleged persecution were [] alone enough to support an


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order of removal.” Appellant’s Reply Br. 6. Because reopening is preliminary to and not

in fact a final order of removal, and because even such a final order is reviewable only by

the court of appeals, the district court correctly dismissed Qiao’s complaint for lack of

jurisdiction.

       We have considered all of Qiao’s remaining arguments and conclude that they are

without merit. Accordingly, the dismissal of his complaint for lack of subject-matter

jurisdiction is AFFIRMED.

                                  FOR THE COURT:
                                  CATHERINE O=HAGAN WOLFE, Clerk of Court




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