Gong An Chen v. Gonzales
Gong An Chen v. Gonzales
Opinion of the Court
SUMMARY ORDER
Petitioner Gong An Chen (“Chen”) petitions for review of a September 2005 final order of removal of the Board of Immigration Appeals (“BIA”) affirming and adopting the decision of Immigration Judge (“IJ”) Philip J. Montante, Jr., denying his application for asylum, withholding of removal, and Convention Against Torture (“CAT”) relief. We assume the parties’ familiarity with the facts and procedural history of the case.
When the BIA adopts the decision of the IJ and supplements the IJ’s decision, this Court reviews the decision of the IJ as supplemented by the BIA. See Yu Yin Yang v. Gonzales, 481 F.3d 84, 85 (2d Cir. 2005); Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). This Court reviews the IJ’s factual and credibility findings under the substantial evidence standard, overturning them only if any reasonable adjudicator would be compelled to conclude the contrary. See 8 U.S.C. § 1252(b)(4)(B); Zhou Yun Zhang v. United States INS, 386 F.3d 66, 73 (2d Cir. 2004). Nevertheless, “the fact that the [agency] has relied primarily on credibility grounds in dismissing an asylum application cannot insulate the decision from review.” Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004).
A. Asylum
One-Year Bar Issue
Title 8, Section 1158(a)(3) of the United States Code provides that no court shall have jurisdiction to review the agency’s finding that an asylum application was untimely under 8 U.S.C. § 1158(a)(2)(B), or its finding of neither changed nor extraordinary circumstances excusing the untimeliness under 8 U.S.C. § 1158(a)(2)(D). Moreover, courts are prohibited from reviewing any finding under INA § 208(a)(2), including a finding that an asylum applicant did not demonstrate by clear and convincing evidence that he filed an asylum application within one year of arrival in the United States. INA § 208(a)(3). Notwithstanding these provisions, this Court retains jurisdiction to review constitutional claims and “questions of law.” 8 U.S.C. § 1252(a)(2)(D). In this case, Chen challenges only the IJ’s factual findings with respect to the filing date of his asylum application. Because this does not raise any constitutional claim or question of law, we are obliged to dismiss Chen’s petition insofar as he contends that the IJ erred in denying his asylum application as untimely. See Xiao Ji Chen v. U.S. Dep’t of Justice, 434 F.3d 144, 153-56 (2d Cir. 2006).
B. Withholding of Removal and CAT Relief
Timeliness concerns do not pertain to petitioner’s alternative grounds for seeking relief from removal. See id. at 156 (noting that “eligibility for withholding of removal is not subject to 8 U.S.C. § 1158(a)(2)(B)’s one-year ban,” and thus must be considered regardless of the timeliness of petitioner’s asylum request). A review of Chen’s withholding of removal claim reveals that the IJ and BIA did not err in concluding that Chen failed to establish eligibility for withholding relief.
Finally, because Chen failed to raise his CAT claim before this Court, this claim is waived, and is not considered by this Court. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 542 n. 1, 546 n. 7 (2d Cir. 2005).
Having completed our review, any stay of removal that the Court previously granted in this proceeding is VACATED, and any pending motion for a stay of removal in this proceeding is DENIED as moot. Any pending request for oral argument in this proceeding is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2) and Second Circuit Local Rule 34(d)(1).
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