Opinion
No. 07-4949-ag NAC.
January 29, 2009.
UPON DUE CONSIDERATION of this petition for review of a decision of the Board of Immigration Appeals ("BIA"), it is hereby ORDERED, ADJUDGED, AND DECREED, that the petition for review is DENIED.
FOR PETITIONER: Robert J. Adinolfi, Louis Adinolfi, LLC, New York, New York. FOR RESPONDENT: Gregory G. Katsas, Assistant Attorney General; Luis Perez, Senior Litigation Counsel; Donald A. Couvillon, Attorney, Civil Division, Office of Immigration Litigation, U.S. Department of Justice, Washington, D.C.
PRESENT: HON. DENNIS JACOBS, Chief Judge. HON. REENA RAGGI, HON. PETER W. HALL, Circuit Judges.
Petitioner Xian Li, a native and citizen of the People's Republic of China, seeks review of the October 18, 2007 order of the BIA denying his motion to reopen and affirming the July 17, 2001 decision of the Immigration Judge ("IJ") Joanna Miller Bukszpan denying his application for asylum, withholding of deportation, and relief under the Convention Against Torture ("CAT"). In re Xian Li, No. A72 797 184 (B.I.A. Oct. 18, 2007), aff'g No. A72 797 184 (Immig. Ct. N.Y. City Jul. 17, 2001). We assume the parties' familiarity with the underlying facts and procedural history of this case.
Prior to the REAL ID Act of 2005, this case would have been governed entirely by the IIRIRA's transitional rules because Li was in deportation proceedings before April 1, 1997, and the final order of deportation he is challenging was entered more than 30 days after September 30, 1996. See IIRIRA § 309(c); Mariuta v. Gonzales, 411 F.3d 361, 363 n. 3 (2d Cir. 2005). However, section 106(d) of the REAL ID Act, 119 Stat. 311, requires that this Court treat the case as if it had been filed under the IIRIRA's permanent rules (as amended by the REAL ID Act). See Jun Min Zhang v. Gonzales, 457 F.3d 172, 174-75 (2d Cir. 2006).
I. Asylum, Withholding of Deportation CAT Relief
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 Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). This Court reviews the agency's factual findings under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also Manzur v. U.S. Dep't of Homeland Sec., 494 F.3d 281, 289 (2d Cir. 2007). Questions of law and the application of law to undisputed fact are reviewed de novo Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).
The statutory definition of "refugee" explicitly excludes "any person who ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1101(a)(42). Thus, the Attorney General's authority to grant asylum does not extend to aliens who are deemed persecutors. 8 U.S.C. § 1158(b)(2)(A)(i).
Li's case is virtually identical to Zhang Jian Xie v. INS, which upheld the agency's conclusion that "actions in transporting captive women to undergo forced abortions was assistance in persecution." 434 F.3d 136, 143 (2d Cir. 2006) (noting that by "driving the van in which the women were locked, [the applicant] ensured that they were delivered to the place of their persecution: the hospitals where their forced abortions took place"). Here, Li testified that his job was to "drive family planning cadres to people's homes so they could arrest violators of the family planning policy," and that some of those people were taken to the hospital where they were subjected to "forced sterilization operations." Accordingly, the IJ did not err in applying the persecutor bar in Li's case, and correctly found him ineligible for asylum and withholding of deportation. See 8 U.S.C. § 1231(b)(3)(B)(i) (declaring withholding of removal unavailable to aliens who "ordered, incited, assisted, or otherwise participated in the persecution" of anyone on the basis of a protected ground); see also Zhang Jian Xie, 434 F.3d at 144.
Further, because Li fails to adequately challenge the agency's denial of CAT relief, we consider any such arguments waived. Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1, 545 n. 7 (2d Cir. 2005).
II. Motion to Reopen
Li also seeks review of the BIA's denial of his motion to reopen based on the alleged ineffectiveness of his prior counsel. We normally review the BIA's denial of a motion to reopen for abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir. 2005) (per curiam). Here, however, it is unnecessary to consider Li's argument because he is ineligible for asylum and withholding of deportation, and has abandoned his CAT claim. See Rabu v. INS, 41 F.3d 879, 882-83 (2d Cir. 1994).
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(b).