SHAO QIU CHEN v. BARR (2019)

SUMMARY ORDER

Petitioner Shao Qiu Chen, a native and citizen of the People’s Republic of China, seeks review of a June 20, 2017, BIA decision that affirmed the September 9, 2016, decision of an Immigration Judge (“IJ”) denying asylum, withholding of removal, relief under the Convention Against Torture (“CAT”), and cancellation of removal. In re Shao Qiu Chen, No. A201 139 998 (B.I.A. June 20, 2017), aff’g No. A201 139 998 (Immig. Ct. N.Y. City Sept. 9, 2016). We assume the parties’ familiarity with the underlying facts and procedural history in this case.

Chen applied for asylum, withholding of removal, and CAT relief, asserting that she fears persecution—specifically forced sterilization—based on the birth of her children in violation of China’s population control program. Under the circumstances of this case, we have reviewed both the IJ’s and the BIA’s opinions “for the sake of completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). The applicable standards of review are well established. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 157-58 (2d Cir. 2008).

For largely the same reasons as set forth in Jian Hui Shao, we find no error in the agency’s determination that Chen failed to satisfy her burden for asylum, withholding of removal, and CAT relief. See id. at 158-67; see also Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006). While the petitioners in Jian Hui Shao were from Fujian Province, and Chen is from Zhejiang Province, Chen’s evidence related to Zhejiang Province does not describe the use of force in the enforcement of the family planning policy. See id. at 160-61, 165-66, 171-72.

Our jurisdiction to review the agency’s denial of cancellation of removal based on Chen’s failure to establish hardship to a qualifying relative is limited to constitutional claims and questions of law, 8 U.S.C. § 1252(a)(2)(B)(i), (D); Barco-Sandoval v. Gonzales, 516 F.3d 35, 39-40 (2d Cir. 2008), for which our review is de novo, Pierre v. Holder, 588 F.3d 767, 772 (2d Cir. 2009). A question of law may arise when “some facts important to the subtle determination of ‘exceptional and extremely unusual hardship’ have been totally overlooked and others have been seriously mischaracterized.” Mendez v. Holder, 566 F.3d 316, 322-23 (2d Cir. 2009). For jurisdiction to attach, however, such claims must be colorable. Barco-Sandoval, 516 F.3d at 40-41.

Chen’s argument that the agency ignored a psychological report discussing her son’s sleepwalking disorder and concluding that her children would be at risk for anxiety and depression should they move to China is not colorable because the IJ explicitly considered the report. See Barco-Sandoval, 516 F.3d at 40. Because Chen has not established constitutional or legal error in the agency’s hardship determination, we need not address the agency’s alternative bases for denying cancellation of removal—its moral character finding. See 8 U.S.C. § 1229b(b)(1); INS v. Bagamasbad, 429 U.S. 24, 25, 97 S.Ct. 200, 50 L.Ed.2d 190 (1976) (“As a general rule courts and agencies are not required to make findings on issues the decision of which is unnecessary to the results they reach.”).

For the foregoing reasons, the petition for review is DENIED in part and DISMISSED in part.