Chin Ju Lau v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: April 15, 2020
• Docket: 19-12327
• Status: Unpublished

Opinion

Case: 19-12327 Date Filed: 04/15/2020 Page: 1 of 6

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-12327 Non-Argument Calendar ________________________

Agency No. A042-732-496

CHIN JU LAU,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the Board of Immigration Appeals ________________________

(April 15, 2020) Case: 19-12327 Date Filed: 04/15/2020 Page: 2 of 6

Before WILLIAM PRYOR, JILL PRYOR, and ANDERSON, Circuit Judges.

PER CURIAM:

Chin Ju Lau seeks review of the Board of Immigration Appeals’ (“BIA”)

order dismissing his appeal of the Immigration Judge’s (“IJ”) denial of withholding

of removal and relief under the Convention Against Torture (“CAT”).

Lau is a Chinese citizen who entered the United States as a lawful permanent

resident. The Department of Homeland Security issued him a notice to appear and

an I-261 form alleging that he was removable for being an alien who knowingly

encouraged, induced, assisted, abetted, or aided another alien in attempting to

illegally enter the United States, and because he was convicted of an aggravated

felony: conspiracy and attempted smuggling of illegal aliens for the purpose of

commercial advantage and financial gain.

The IJ issued an oral decision finding that Lau was removable because he

committed an aggravated felony, concluding that Lau had not shown a clear

probability that his life or freedom would be threatened on any protected ground

were he removed to China. The IJ did not credit his testimony due to a material

inconsistency regarding whether he would take his children back to China with

him, and denied his applications for relief. And the IJ found that this

inconsistency, coupled with Lau’s failure to establish a clear probability of future

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persecution or that his children would accompany him to China, was sufficient to

deny Lau’s CAT claims

Lau appealed to the BIA, which dismissed his appeal. The BIA stated that

Lau did not challenge the IJ’s finding that he was removable because he was

convicted of an aggravated felony. It found that, even if his testimony were

credible, he would still be subject to removal because he did not establish past

persecution. The BIA agreed with the IJ’s finding that Lau did not establish that

his children would accompany him to China and trigger persecution because of

China’s family-planning policy. And it found that Lau’s CAT claim could not

succeed because LAU did not experience past torture and was not likely to be

identified as violating China’s family-planning policy.

We review the BIA’s decision as the final agency decision, unless it

expressly adopted the IJ’s opinion or agreed with the IJ’s reasoning.

Perez-Zenteno v. U.S. Att’y Gen., 913 F.3d 1301, 1306 (11th Cir. 2019). Where

the BIA explicitly agrees with the findings of the IJ, we will review the decision of

both the BIA and the IJ as to those issues. Kazemzadeh v. U.S. Att’y Gen.,

577 F.3d 1341, 1350 (11th Cir. 2009).

Our jurisdiction to review orders of removal is limited by the Immigration

and Nationality Act (“INA”), which provides that no court shall have jurisdiction

to review a final order of removal against an alien who is removable for having

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committed an aggravated felony. INA § 237(a)(2)(A)(iii), 8 U.S.C.

§ 1227(a)(2)(A)(iii); INA § 242(a)(2)(C), 8 U.S.C. § 1252(a)(2)(C). We retain

jurisdiction, however, over “constitutional claims or questions of law raised upon a

petition for review.” INA § 242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(D). We have

held that a challenge to an IJ’s weighing of the evidence does not present a legal

question for the purposes of INA § 242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(D).

Alvarez Acosta v. U.S. Att’y Gen., 524 F.3d 1191, 1196 97 (11th Cir. 2008). In

addition, a credibility determination is considered a finding of fact. See Xiu Ying

Wu v. U.S. Att’y Gen., 712 F.3d 486, 493 (11th Cir. 2013). A legal question

involves an assertion that an incorrect legal standard was applied. See Alvarez

Acosta, 524 F.3d at 1197.

We also lack jurisdiction to review any claim as to which the petitioner has

failed to exhaust his or her administrative remedies. Amaya-Artunduaga v. U.S.

Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006). Thus, we lack jurisdiction to

hear any argument that a petitioner failed to raise before the BIA. Id.; see INA

§ 242(d)(1), 8 U.S.C. § 1252(d)(1). In order for a petitioner’s claim to be

exhausted, the petitioner must have raised the “core issue now on appeal” before

the BIA. Indrawati v. U.S. Att’y Gen., 779 F.3d 1284, 1297 (11th Cir. 2015)

(quotation marks omitted).

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When a petitioner fails to offer argument on an issue on appeal, that issue is

abandoned. Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir.

2005). To adequately raise an issue, a litigant must do so “plainly and

prominently” by, for example, “devoting a discrete section of his argument to those

claims.” Cole v. U.S. Att’y Gen., 712 F.3d 517, 530 (11th Cir. 2013) (alteration

adopted) (quotation marks omitted).

Lau has not raised any legal or constitutional questions in this court; we

therefore lack jurisdiction over his petition for review. Lau does not challenge the

IJ’s finding that he is removable because he committed an aggravated felony. This

issue is therefore abandoned. See Sepulveda, 401 F.3d at 1228 n.2. Lau raised due

process arguments before the BIA but has not raised any such arguments in this

court. That constitutional issue is likewise abandoned. Id.

Lau’s petition contains no legal questions. He challenges the IJ’s adverse

credibility finding and argues that he submitted enough evidence to show a

likelihood of persecution and torture upon returning to China because of his felony

conviction and violation of China’s family-planning policy. These are challenges

to the IJ’s weighing of the evidence. Under our precedent, these challenges do not

present a legal question for the purposes of INA § 242(a)(2)(D), 8 U.S.C.

§ 1252(a)(2)(D). Alvarez-Acosta, 524 F.3d at 1196-97. We therefore cannot

consider them.

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Finally, Lau argues that he is entitled to CAT relief because he would be

tortured in China due to his felony conviction. Lau did not raise this claim before

the BIA. Because he did not administratively exhaust claim, we lack jurisdiction

over it. See INA § 242(d)(1), 8 U.S.C. § 1252(d)(1); Amaya-Artunduaga, 463 F.3d

at 1250.

We lack jurisdiction over Lau’s petition for review because he was deemed

removable for having committed an aggravated felony and has not raised a legal or

constitutional question in his petition. Therefore, we dismiss Lau’s petition.

PETITION DISMISSED.