Su Zhen Chen v. United States Department of Justice
Su Zhen Chen v. United States Department of Justice
Opinion of the Court
SUMMARY ORDER
Sue Zhen Chen, a native and citizen of the People’s Republic of China (“China”), seeks review of a November 8, 2007 order of the BIA, affirming the August 11, 2004 decision of Immigration Judge (“IJ”) Roxanne C. Hladylowycz, which pretermitted her application for asylum and denied her application for withholding of removal and relief under the Convention against Torture (“CAT”). In re Sue Zhen Chen, No. A097 849 336 (B.I.A. Nov. 8, 2007), aff'g No. A097 849 336 (Immig. Ct. N.Y. City Aug. 11, 2004). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
When the BIA adopts and supplements the decision of the IJ, we review the IJ’s decision as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review the agency’s factual findings under the substantial evidence standard. See 8 U.S.C. § 1252(b)(4)(B); Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir. 2008). We review de novo questions of law and the application of law to undisputed fact. See Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).
Notwithstanding the Government’s argument that we lack jurisdiction to review the IJ’s pretermission of Chen’s asylum application under 8 U.S.C. § 1158(a), we assume hypothetical jurisdiction over that application because the jurisdictional issues presented here are complex, and because the substance of that application is without merit. See Abimbola v. Ashcroft, 378 F.3d 173, 180 (2d Cir. 2004) (asserting hypothetical jurisdiction when the jurisdictional issues related to statutory and not constitutional jurisdiction); see also Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 338 (2d Cir. 2006) (“Our assumption of jurisdiction to consider first the merits is not barred where the jurisdictional constraints are imposed by statute, not the Constitution, and where the jurisdictional issues are complex and the substance of the claim is, as here, plainly without merit.”).
We conclude that the agency did not err in denying Chen’s applications for relief. Chen argues that the agency improperly failed to provide an individualized analysis of her claim, as required by Jian Hui Shao v. Mukasey, 546 F.3d 138, 142 (2d Cir. 2008), and further argues that the BIA’s reliance on Matter of J-W-S- 24 I. & N. Dec. 185 (BIA 2007), and Matter of S-Y-G-, 24 I. & N. Dec. 247 (BIA 2007), to dismiss the evidence she submitted was improper, because the record does not contain documents on which the BIA relied in those cases to conclude that foreign-born children are not counted for purposes of the family planning policy. Those arguments are unavailing. We have rejected the notion that the agency must “expressly parse or refute on the record each individual argument or piece of evidence offered by the petitioner,” Jian Hui Shao, 546 F.3d at 169 (internal quotation marks omitted), and “presume that [the agency] has taken into account all of the evidence before [it], unless the record compellingly suggests otherwise,” Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 338 n. 17 (2d Cir. 2006); cf. Xiao Kui Lin v. Mukasey, 553 F.3d 217, 220 (2d Cir. 2009) (granting a petition for review because the BIA
For the foregoing reasons, the petition for review is DENIED in part and DISMISSED 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(b).
Case-law data current through December 31, 2025. Source: CourtListener bulk data.