         10-459-ag
         Wang v. Holder
                                                                                       BIA
                                                                                    Hom, IJ
                                                                               A098 354 192
                           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 30th day of March, two thousand eleven.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                     Chief Judge,
 9                JOSEPH M. McLAUGHLIN,
10                ROBERT D. SACK,
11                    Circuit Judges.
12       _______________________________________
13
14       MU WENG WANG,
15                Petitioner,
16
17                        v.                                    10-459-ag
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       ______________________________________
23
24       FOR PETITIONER:               Peter D. Lobel, Joshua E. Bardavid,
25                                     New York, New York.
26
27       FOR RESPONDENT:               Tony West, Assistant Attorney
28                                     General; Mark C. Walters, Senior
29                                     Litigation Counsel; Aaron R. Petty,
30                                     Trial Attorney, Office of
31                                     Immigration Litigation, U.S.
32                                     Department of Justice, Washington
33                                     D.C.
 1       UPON DUE CONSIDERATION of this petition for review of a

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

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

 4   is DENIED.

 5       Petitioner Mu Weng Wang, a native and citizen of the

 6   People’s Republic of China, seeks review of a January 6,

 7   2010, decision of the BIA affirming the February 14, 2008,

 8   decision of Immigration Judge (“IJ”) Sandy K. Hom denying

 9   his application for asylum, withholding of removal, and

10   relief under the Convention Against Torture (“CAT”).     In re

11   Mu Weng Wang, No. A098 354 192 (B.I.A. Jan. 6, 2010), aff’g

12   No. A098 354 192 (Immig. Ct. N.Y. City Feb. 14, 2008).     We

13   assume the parties’ familiarity with the underlying facts

14   and procedural history in this case.

15       Under the circumstances of this case, we review both

16   the IJ’s and the BIA’s opinions “for the sake of

17   completeness.”     Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.

18   2008).   The applicable standards of review are well-

19   established.     See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.

20   Holder, 562 F.3d 510, 513 (2d Cir. 2009).

21       The agency did not err in applying our decision in Shi

22   Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296 (2d Cir.


                                     2
 1   2007) to deny Wang’s applications for relief.     Initially,

 2   the BIA had found Wang eligible for relief, and remanded for

 3   background and security checks under In re M-D-, 24 I. & N.

 4   Dec. 138 (BIA 2007).   On remand, the IJ considered this

 5   Court’s intervening decision in Shi Liang Lin as new

 6   material evidence, and denied relief on that basis.     The BIA

 7   dismissed Wang’s subsequent appeal.

 8       Wang raises several challenges to the agency’s

 9   consideration of Shi Liang Lin as new evidence.     However,

10   regardless of whether our decision constituted new evidence,

11   upon remand from the BIA, the IJ reacquired jurisdiction to

12   consider all matters because the BIA did not expressly

13   retain jurisdiction and did not qualify or limit the scope

14   of remand for a specific purpose.     See In re M-D-, 24 I. &

15   N. Dec. at 141-42 (holding that the IJ had authority to

16   consider an applicant’s adjustment of status application

17   when a case was remanded for purposes of conducting

18   background checks); In re Patel, 16 I. & N. Dec. 600, 601

19   (BIA 1978) (holding that “when the Board remands a case to

20   an immigration judge for further proceedings, it divests

21   itself of jurisdiction of that case unless jurisdiction is

22   expressly retained” and that, “unless the Board qualifies or


                                   3
 1   limits the remand for a specific purpose, the remand is

 2   effective for the stated purpose and for consideration of

 3   any and all matters which the Service officer deems

 4   appropriate in the exercise of his administrative discretion

 5   or which are brought to his attention in compliance with the

 6   appropriate regulations”).   Moreover, even if the IJ could

 7   not consider Shi Liang Lin on remand, Wang does not present

 8   any arguments challenging the BIA’s alternative holding that

 9   it would exercise its sua sponte authority to reopen Wang’s

10   case in light of Shi Liang Lin.   See 8 C.F.R. § 1003.2(a);

11   In re G-D-, 22 I. & N. Dec. 1132 (BIA 1999).

12       Further, the agency did not err in concluding that our

13   instructions in Shi Liang Lin did not preclude the

14   application of that decision to Wang’s case.   Although our

15   decision in Shi Liang Lin is not a basis to reopen

16   proceedings when relief has already been granted, Shi Liang

17   Lin, 494 F.3d at 314, the BIA’s initial finding that Wang

18   was eligible for asylum was not itself a grant of relief,

19   see 8 C.F.R. § 1003.1(d)(6) (stating that the BIA “shall not

20   issue a decision affirming or granting to an alien an

21   immigration status, relief or protection from removal, or

22   other immigration benefit” if background and security checks

23   need to be completed or made current); see also In re M-D-,

                                   4
 1   24 I. & N. Dec. at 141-42.    Thus, the agency did not err in

 2   concluding that Shi Liang Lin applied to Wang’s case on

 3   remand.   Cf. NLRB v. Coca-Cola Bottling Co. of Buffalo,

 4   Inc., 55 F.3d 74, 77 (2d Cir. 1995) (recognizing that an

 5   intervening change in the controlling law authorizes

 6   departure from a prior ruling in the same litigation).

 7   Given that Wang does not present any arguments about whether

 8   Shi Liang Lin was applied correctly or whether he was

 9   otherwise entitled to any of his requested relief, we do not

10   reach those issues.

11       For the foregoing reasons, the petition for review is

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

13   removal that the Court previously granted in this petition

14   is VACATED, and any pending motion for a stay of removal in

15   this petition is DISMISSED as moot.    Any pending request for

16   oral argument in this petition is DENIED in accordance with

17   Federal Rule of Appellate Procedure 34(a)(2), and Second

18   Circuit Local Rule 34.1(b).

19                                 FOR THE COURT:
20                                 Catherine O’Hagan Wolfe, Clerk
21




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