Opinion
No. 09-0270-ag.
February 18, 2010.
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 DENIED.
Thomas V. Massucci, New York, NY, for petitioner.
Tony West, Assistant Attorney General;
James A. Hunolt, Senior Litigation Counsel; Craig A. Newell, Jr., Trial Attorney, Office of PA PRESENT: GUIDO CALABRESI, ROBERT A. KATZMANN, DEBRA ANN LIVINGSTON, Circuit Judges.
SUMMARY ORDER
Wang Bin Chen, a native and citizen of China, seeks review of a December 24, 2008, order of the BIA, affirming the September 21, 2006, decision of Immigration Judge ("IJ") Joanna Miller Bukszpan, which pretermitted his application for asylum and denied his applications for withholding of removal and relief under the Convention Against Torture ("CAT"). In re Wang Bin Chen, No. A029 814 126 (B.I.A. Dec. 24, 2008), aff'g No. A029 814 126 (Immig. Ct. N.Y. City Sept. 21, 2006). We assume the parties' familiarity with the underlying facts and procedural history in this case.
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 Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008); Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir. 2008).
Chen concedes that the IJ properly pretermitted his application for asylum because he was statutorily ineligible for such relief based on his conviction for an aggravated felony. See 8 U.S.C. § 1158(b)(2)(B)(i). He argues, however, that the agency erred in finding that he failed to demonstrate his eligibility for withholding of removal under 8 U.S.C. § 1231(b)(3) based on the likelihood that he will be forcibly sterilized in China and that he failed to demonstrate his eligibility for withholding of removal under 8 U.S.C. § 1231(b)(3) and CAT relief based on the likelihood that he will be imprisoned and tortured for "his membership in a particular social group of Chinese citizens who have been convicted of crimes while overseas."
We do not lack jurisdiction by virtue of Chen's having committed an aggravated felony. Pursuant to 8 U.S.C. § 1252(a)(2)(C), "no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed' `an aggravated felony. Although Chen was convicted of an aggravated felony, he was charged only with removability as an alien present in the United States without admission or parole and the resulting order of removal found him removable as charged. Although the IJ and the BIA evaluated Chen's prior conviction for purposes of determining his eligibility for relief from removal, they did not find him removable on the basis of the aggravated felony. Consequently, the jurisdiction-stripping provision of § 1252(a)(2)(C) does not apply. See Alvarez-Santos v. INS, 332 F.3d 1245, 1253 (9th Cir. 2003) (holding that 8 U.S.C. § 1252(a)(2)(C) "precludes judicial review only when an alien is actually determined to be removable and ordered removed on the basis of a covered criminal act").
Substantial evidence supports the agency's determination that Chen did not establish his eligibility for withholding of removal or CAT relief because he failed to submit any country conditions evidence demonstrating a likelihood that he would be forcibly sterilized, imprisoned, or tortured in China. See 8 C.F.R. § 1208.16; see also Jian Xing Huang v. INS , 421 F.3d 125, 129 (2d Cir. 2005). Because the agency did not err in finding that Chen failed to establish his eligibility for withholding of removal and CAT relief, we need not consider his challenge to the agency's alternative finding that he was statutorily ineligible for withholding of removal based on his conviction for a particularly serious crime. See 8 C.F.R. § 1208.16.
For the foregoing reasons, the petition for review is DENIED. 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).