Yi Qing Wang, Petitioner, v. NAC Board of Immigration Appeals,, (2nd Cir. 2005)
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UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
S U M M A R Y O R D E R THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA. At a stated Term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, at Foley Square, in the City of New York, on the 19th day of December, two thousand five. Present: HONORABLE AMALYA L. KEARSE, HONORABLE CHESTER J. STRAUB, HONORABLE SONIA SOTOMAYOR, Circuit Judges. Yi Qing Wang, Petitioner, - v. - No. 04-1175-ag NAC Board of Immigration Appeals, Respondent. FOR PETITIONER: Yi Qing Wang, pro se, New York, New York. FOR RESPONDENT: Ronald J. Tenpas, United States Attorney for the Southern District of Illinois, Robert L. Garrison, Assistant United States Attorney, Fairview Heights, Illinois. UPON DUE CONSIDERATION, it is ORDERED, ADJUDGED, AND DECREED that the petition for review of the decision of the Board of Immigration Appeals ("BIA") be and it hereby is DENIED.
Petitioner pro se Yi Qing Wang petitions for review of the BIA's February 9, 2004 order denying his motion to reconsider its prior decision affirming the order of the immigration judge ("IJ") denying asylum and withholding of removal. We assume the parties' familiarity with the underlying facts and the procedural history.
A petition for review of the denial of a motion to reconsider calls up for review only the merits of the denial of that motion, not the merits of the decision as to which reconsideration is sought; absent a timely petition for review of the underlying decision, this Court is precluded from passing on the merits of that underlying decision. See, e.g., Ke Zhen Zhao v. U.S. Department of Justice, 265 F.3d 83, 89-90 (2d Cir. 2001). Wang's petition for review is timely only with respect to the BIA's order denying reconsideration. Accordingly, our review is confined to the merits of the denial of reconsideration.
A motion to reconsider must specify errors of fact or law in the prior decision and be supported by pertinent authority. 8 C.F.R. § 1003.2(b)(1) (2005). We review the BIA's denial of a motion to reopen or reconsider for abuse of discretion. See Zhong Guang Sun v. U.S. Dep't of Justice, 421 F.3d 105, 107 (2d Cir. 2005); 8 C.F.R. § 1003.2(a). An abuse of discretion may be found where the BIA's decision "provides no rational explanation, inexplicably departs from established policies . . . , is devoid of any reasoning, or contains only summary or conclusory statements . . . ; that is to say, where the Board has acted in an arbitrary or capricious manner." Ke Zhen Zhao v. U.S. Dep't of Justice, 265 F.3d at 93.
In the present matter, Wang's motion to reconsider was more detailed than his original appeal to the BIA, in that his motion argued that the IJ erred in finding his supporting documentation not credible.
The BIA, however, stated that it was unpersuaded by Wang's new arguments that it had erred in affirming the IJ's decision, and Wang's petition does not demonstrate that, in arriving at this result, the BIA abused its discretion.
Wang also asks this Court to grant him relief under the Convention Against Torture ("CAT").
However, since he did not seek such relief before the BIA, we have no jurisdiction to grant such relief.
See 8 U.S.C. § 1252(d)(1) (2000); Qui Guan Di Zhang v. INS, 274 F.3d 103, 107 (2d Cir. 2001) ("[A] litigant is generally not entitled to judicial review of a contention not argued to the B[IA].").
We have considered all of petitioner's contentions that are properly before us in support of this petition for review and have found them to be without merit. The petition for review is denied.
FOR THE COURT: ROSEANN B. MacKECHNIE, Clerk By: Oliva M. George, Deputy Clerk
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This document cites
- U.S. Court of Appeals for the Second Circuit - Qui Guan Di Zhang, Petitioner, v. Immigration and Naturalization Service, Respondent., 274 F.3d 103 (2nd Cir. 2001)
- U.S. Code - Title 8: Aliens and Nationality - 8 USC 1252 - Sec. 1252. Judicial review of orders of removal
- Code of Federal Regulations - Title 8: Aliens and Nationality - 8 CFR 1003.2 - Reopening or reconsideration before the Board of Immigration Appeals.
- U.S. Court of Appeals for the Second Circuit - Zhong Guang Sun, Petitioner, v. United States Department of Justice, Respondent., 421 F.3d 105 (2nd Cir. 2005)
- U.S. Court of Appeals for the Second Circuit - Ke Zhen Zhao, Petitioner, v. United States Department of Justice, Janet Reno, Attorney General; United States Department of Justice, Executive Office for Immigration Review, Board of Immigration Appeals, Office of the Immigration Judges; United States Department of Justice, Doris Meisner, Commissioner of Immigration and Naturalization Service; and Edward J. Mcelroy, District Director, Respondents., 265 F.3d 83 (2nd Cir. 2001)
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