         08-4652-ag
         Chen v. U.S. DOJ
                                                                                       BIA
                                                                                  Nelson, IJ
                                                                               A073 649 223
                             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 16 th day of June, two thousand ten.
 5
 6       PRESENT:
 7                RALPH K. WINTER,
 8                JOSÉ A. CABRANES,
 9                PETER W. HALL,
10                    Circuit Judges.
11       _______________________________________
12
13       BIAO CHEN,
14                Petitioner,
15
16                          v.                                  08-4652-ag
17                                                              NAC
18       U.S. DEPARTMENT OF JUSTICE, ET AL.,
19                Respondents.
20       ______________________________________
21
22       FOR PETITIONER:               Pro se.
23
1    FOR RESPONDENTS:       Michael F. Hertz, Acting Assistant
2                           Attorney General, Carol Federigh,
3                           Senior Litigation Counsel, Andrew B.
4                           Insenga, Trial Attorney, Office of
5                           Immigration Litigation, Civil
6                           Division, United States Department
7                           of Justice, Washington, D.C.
8
9        UPON DUE CONSIDERATION of this petition for review of a

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

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

12   is DISMISSED in part DENIED in part.

13       Petitioner Biao Chen, a native and citizen of China,

14   seeks review of an August 25, 2008, order of the BIA

15   affirming the January 17, 2007, decision of Immigration

16   Judge (“IJ”) Barbara A. Nelson pretermitting his application

17   for asylum, and denying his applications for cancellation of

18   removal, withholding of removal, and relief under the

19   Convention Against Torture (“CAT”).     In re Biao Chen, No.

20   A073 649 223 (B.I.A. Aug. 25, 2008), aff’g No. A073 649 223

21   (Immig. Ct. N.Y. City Jan. 17, 2007).     We assume the

22   parties’ familiarity with the underlying facts and

23   procedural history in this case.

24       As an initial matter, we lack jurisdiction to review

25   the agency’s decision insofar it denied Chen’s application

26   for cancellation of removal and pretermitted as untimely his


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1    application for asylum.   See 8 U.S.C. §§ 1158(a)(3),

2    1252(a)(2)(B).   While we retain jurisdiction to review

3    constitutional claims and “questions of law,” 8 U.S.C.

4    § 1252(a)(2)(D), Chen has made no such arguments.          We

5    dismiss the petition for review to that extent.

6        Under the circumstances of this case, we review the

7    decision of the IJ as supplemented by the BIA.       See Yan Chen

8    v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).       The

9    applicable standards of review are well-established.            See

10   8 U.S.C. § 1252(b)(4)(B); Corovic v. Mukasey, 519 F.3d 90,

11   95 (2d Cir. 2008); Salimatou Bah v. Mukasey, 529 F.3d 99,

12   110 (2d Cir. 2008).

13       Substantial evidence supports the agency’s

14   determination that Chen failed to establish his eligibility

15   for withholding of removal and CAT relief based on the birth

16   of his U.S. citizen children.       See Jian Hui Shao v. Mukasey,

17   546 F.3d 138, 158-73 (2d Cir. 2008).       Other than relying on

18   the fact that the family planning policy exists, Chen fails

19   to identify any error in the agency’s determination that he

20   failed to meet his burden.   Accordingly, we are left with no

21   reason to disturb the agency’s denial of his application for

22   withholding of removal and CAT relief.       See Paul v.



                                     3
1    Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).

2        For the foregoing reasons, the petition for review is

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

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

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

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

7    Any pending request for oral argument in this petition is

8    DENIED in accordance with Federal Rule of Appellate

 9   Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).
10
11                              FOR THE COURT:
12                              Catherine O’Hagan Wolfe, Clerk
13




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