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Xiao Dan Jiang v. Holder
Citation: 328 F. App'x 77Docket: No. 08-3469-ag
Court: Court of Appeals for the Second Circuit; July 9, 2009; Federal Appellate Court
Xiao Dan Jiang, a citizen of the People’s Republic of China, sought judicial review of a June 20, 2008 order from the Board of Immigration Appeals (BIA) that affirmed a July 5, 2006 decision by Immigration Judge (IJ) Noel A. Ferris. The IJ had pretermitted Jiang's application for asylum and denied her requests for withholding of removal and relief under the Convention Against Torture (CAT). The court clarified that it reviews IJ decisions as supplemented by the BIA and applies the substantial evidence standard to factual findings while reviewing legal questions de novo. The court lacks jurisdiction to review the BIA's pretermission of Jiang's asylum application due to it being deemed untimely under 8 U.S.C. 1158(a)(3). Although the court retains jurisdiction over constitutional claims and legal questions, Jiang's arguments were primarily factual, leading to dismissal of her petition regarding asylum. Jiang's due process argument was dismissed for merely reiterating her factual claims regarding the timeliness of her application. Additionally, she waived challenges concerning the agency's finding of insufficient evidence for past persecution. Jiang contended that her U.S. citizen children's birth should qualify her for withholding of removal and CAT relief; however, the court found no error in the BIA's assessment that such evidence did not establish a reasonable fear of persecution. The BIA correctly noted that Jiang's actions, such as sending her children to China, contradicted her claims of fear of persecution linked to the family planning policy. The court ultimately denied Jiang's petition in part and dismissed it in part. The previously granted stay of removal was vacated, and any pending motions related to the stay were dismissed as moot. Requests for oral argument were also denied.