BIAO CHEN, Petitioner, v. U.S. DEPARTMENT OF JUSTICE, et al., Respondents.

No. 08-4652-ag.United States Court of Appeals, Second Circuit.
June 16, 2010.

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

UPON DUE CONSIDERATION of this petition for review of a Board of Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND DECREED that the petition for review is DISMISSED in part DENIED in part.

Biao Chen, Pro se.

Michael F. Hertz, Acting Assistant Attorney General, Carol Federigh, Senior Litigation Counsel, Andrew B. Insenga, Trial Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., for Respondents.

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Petitioner Biao Chen, a native and citizen of China, seeks review of an August 25, 2008, order of the BIA affirming the January 17, 2007, decision of Immigration Judge (“IJ”) Barbara A. Nelson pretermitting his application for asylum, and denying his applications for cancellation of removal, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Biao Chen, No. A073 649 223 (B.I.A. Aug. 25, 2008), ajfg No. A073 649 223 (Immig. Ct. N.Y. City Jan. 17, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case.

As an initial matter, we lack jurisdiction to review the agency’s decision insofar it denied Chen’s application for cancellation of removal and pretermitted as untimely his application for asylum. See 8 U.S.C. §§ 1158(a)(3), 1252(a)(2)(B). While we retain jurisdiction to review constitutional claims and “questions of law,”8 U.S.C. § 1252(a)(2)(D), Chen has made no such arguments. We dismiss the petition for review to that extent.

Under the circumstances of this case, we review the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable standards of review are well-established. See 8 U.S.C. § 1252(b)(4)(B); Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir. 2008); Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).

Substantial evidence supports the agency’s determination that Chen failed to establish his eligibility for withholding of removal and CAT relief based on the birth of his U.S. citizen children. See Jian Hui Shoo v. Mukasey, 546 F.3d 138, 158-73 (2d Cir. 2008). Other than relying on the fact that the family planning policy exists, Chen fails to identify any error in the agency’s determination that he failed to meet his burden. Accordingly, we are left with no reason to disturb the agency’s denial of his application for withholding of removal and CAT relief. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).

For the foregoing reasons, the petition for review is DISMISSED in part and DENIED in part. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).