Yuan Liu Chao v. Board of Immigration Appeals

SUMMARY ORDER Petitioners, Yuan Liu Chao and Ren Xin Yang, natives and citizens of China, seek review of a December 19, 2007, order of the BIA denying their motion to reopen. In re Yuan Liu Chao, Ren Xin Yang, Nos. A077 643 059, A072 020 152 (B.I.A. Dec. 19, 2007). We assume the parties’ familiarity with the underlying facts and procedural history of the case. A. Motion to Reopen As an initial matter, we lack jurisdiction to consider petitioners’ arguments insofar as they challenge the agency’s underlying decision denying their application for relief from removal. See 8 U.S.C. § 1252(b)(1); Malvoisin v. INS, 268 F.3d 74, 75 (2d Cir.2001); Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 90 (2d Cir.2001). Thus, the only agency decision before the Court is the BIA’s December 2007 decision denying petitioners’ motion to reopen. The applicable standards of review are well-established. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 168-69 (2d Cir.2008). An alien may only file one motion to reopen and must do so within 90 days of the agency’s final administrative decision. 8 C.F.R. § 1003.2(c)(2). Petitioners’ motion was indisputably untimely because it was filed more than three years after the BIA entered its final order of removal. However, the time limitation does not apply to a motion to reopen seeking to apply for asylum “based on changed circumstances arising in the country of nationality or in the country to which deportation has been ordered, if such evidence is material and was not available and could not have been discovered or presented at the previous hearing.” 8 C.F.R. § 1003.2(c)(3)(h). We have previously reviewed the agency’s consideration of evidence similar to that which petitioners submitted and have found no error in its conclusion that such evidence is insufficient to establish either changed country conditions excusing the time limit for filing a motion to reopen or a realistic chance of forced sterilization. See Jian Hui Shao, 546 F.3d at 169-73. Moreover, contrary to petitioners’ argument, the BIA reasonably declined to accord probative weight to the village committee notices they submitted because the record contained inconsistent evidence regarding how those documents were obtained. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 335, 342 (2d Cir.2006) (holding that the weight to be afforded to documentary evidence lies largely within the discretion of the tribunal). The BIA’s refusal to credit the notices was all the more reasonable in light of the IJ’s underlying adverse credibility determination. See Qin Wen Zheng v. Gonzales, 500 F.3d 143, 146-47 (2d Cir.2007). B. Constitutional Claims We lack jurisdiction to review petitioners’ unexhausted argument that delays *728 in their removal proceedings violated their due process rights. Although the BIA does not have jurisdiction to adjudicate constitutional issues, see United States v. Gonzalez-Roque, 801 F.3d 39, 47-48 (2d Cir.2002), such claims must nevertheless be administratively exhausted when the BIA may decide the underlying issues of fairness of process. See Theodoropoulos v. INS, 358 F.3d 162, 172-73 (2d Cir.2004). Therefore, the petition for review is dismissed to this extent. Although we lack jurisdiction to review a BIA member’s decision to resolve a particular appeal unilaterally, and without opinion, pursuant to the agency’s streamlining procedures, see Kambolli v. Gonzales, 449 F.3d 454, 463 (2d Cir.2006), here, petitioners challenge the constitutionality of those streamlining regulations — an argument over which we retain jurisdiction, see 8 U.S.C. § 1252(a)(2)(D). However, it is well-settled that the agency’s streamlining regulations do not violate the Due Process Clause. See Kambolli, 449 F.3d at 459 (citing Yu Sheng Zhang v. U.S. Dep’t of Justice, 362 F.3d 155, 156-59 (2d Cir.2004)). Finally, petitioners failed to exhaust their argument that their removal would deprive their U.S. citizen child of his right to family unity and his right to remain in the United States. See Theodoropoulos, 358 F.3d at 172-73. Even if petitioners’ failure to exhaust this claim raises a jurisdictional question, we assume hypothetical jurisdiction to consider petitioners’ argument because the “jurisdictional issues are complex and the substance of the claim is ... plainly without merit.” Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 338 (2d Cir.2006). Indeed, it is well-settled that “an infant’s status as a citizen and his dependence on his alien parent do not prevent the deportation of the alien parent.” Emciso-Cardozo v. INS, 504 F.2d 1252, 1253 (2d Cir.1974). 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 34.1(b).