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Various standards and scopes of appellate review

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  • 1. Various Standards and Scopes of Appellate ReviewGet to know what you are up against. This is only a few examples.We review the BIA’s credibility findings under the “highly deferential” substantial evidencetest, which requires that we uphold the BIA’s decision if it is “supported by reasonable,substantial, and probative evidence on the record considered as a whole.” Forgue v. UnitedStates Att’y Gen., 401 F.3d 1282, 1286 (11th Cir. 2005) (quotation omitted). Thus, we mayreverse only when “the record compels it.” Shkambi v. U.S. Att’y Gen., 584 F.3d 1041, 1049 n.6(11th Cir. 2009).We review the factfinding underlying the BIA’s denial of a motion to reopen for abuse ofdiscretion. See Luna v. Holder, 637 F.3d 85, 102-03 (2d Cir. 2011).Under the circumstances of this case, we have reviewed the IJ’s decision as modified by theBIA. See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). Theapplicable standards of review are well-established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Wengv. Holder, 562 20 F.3d 510, 513 (2d Cir. 2009).Under the circumstances of this case, we have reviewed the IJ’s decision as supplemented andmodified by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). Theapplicable standards of review are well-established. See 8 U.S.C. § 1252(b)(4)(B); see alsoChuilu Liu v. Holder, 575 F.3d 193, 196 (2d Cir. 2009).Under the circumstances of this case, we have reviewed the decision of the IJ as supplementedby the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicablestandards of review are well-established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder,562 F.3d 20 510, 513 (2d Cir. 2009).Under the circumstances of this case, we have reviewed only the BIA’s decision. See Yan Chenv. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable standards of review are well-established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir.2009).Under the circumstances of this case, we have considered both the IJ’s and the BIA’s opinions“for the sake of completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir. 2008). Theapplicable standards of review are well-established. 8 U.S.C. § 1252(b)(4)(B); see also
  • 2. Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir. 2008); Salimatou Bah v. Mukasey, 529 F.3d 99,110 (2d Cir. 2008).Our review is limited to the BIA’s March 2010 denial of reconsideration, as Lin’s petition forreview is timely filed only as to that order. See, e.g., Stone v. INS, 514 U.S. 386, 405 (1995)(holding that the Courts of Appeals must treat each petition for review as challenging only theBIA decision from which it was timely filed).Under the circumstances of this case, we have reviewed the IJ’s decision minus the argumentsfor denying relief that were not relied upon by the BIA. See Xue Hong Yang v. U.S.Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). The applicable standards of review are well-established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir.2009). We review only the agency’s denial of withholding of removal because Konate doesnot challenge the agency’s pretermission of his asylum application.This Court has authority to review final orders of removal. See 8 U.S.C. 1252(a). “[W]hen theBIA both adopts the findings of the IJ and discusses some of the bases for the IJ’s decision, wehave authority to review the decisions of both the IJ and the BIA.” Chen v. Ashcroft, 376 F.3d215, 222 (3d Cir. 2004). We review a agency’s factual determinations for substantialevidence, and will uphold such determinations “unless the evidence not only supports acontrary conclusion, but compels it.” Zhang v. Gonzales, 405 F.3d 150, 155 (3d Cir. 2005)(internal citations omitted). Thus, if the applicant “seeks to obtain judicial reversal of the [denialof asylum], he must show that the evidence he presented was so compelling that no reasonablefact finder could fail to find” the requisite likelihood of persecution. INS v. Elias-Zacarias, 502U.S. 478, 483-84 (1992).This Court’s jurisdiction to review the final order of removal issued on October 2, 2009, islimited to reviewing constitutional or legal claims because Basilio was found removable forhaving committed an aggravated felony. See 8 U.S.C. §§ 1252(a)(2)(C), (a)(2)(D); Cospito v.Att’y Gen., 539 F.3d 166, 170 (3d Cir. 2008).Where, as here, the BIA adopts the findings of the IJ and discusses some of the bases for the IJ’sopinion, this Court will review both opinions. See Xie v. Ashcroft, 359 F.3d 239, 242 (3d Cir.2004). We review factual findings for substantial evidence, see Briseno-Flores v. Att’y Gen., 492F.3d 226, 228 (3d Cir. 2007), upholding them “unless any reasonable adjudicator would becompelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Dia v. Ashcroft, 353F.3d 228, 249 (3d Cir. 2003) (en banc).
  • 3. We have jurisdiction under 8 U.S.C. § 1252(a)(1) to review a final order of removal. Whilegenerally we lack jurisdiction over a petition for review if the alien, as here, is removable due toan aggravated felony conviction, see 8 U.S.C. § 1252(a)(2)(C), we retain jurisdiction overconstitutional claims and questions of law. 8 U.S.C. § 1252(a)(2)(D); Papageorgiou v.Gonzales, 413 F.3d 356, 358 (3d Cir. 2005).The primary “question of law” that Miller presents for our review is whether the BIA erred indetermining that his 1983 conviction for delivery of a controlled substance constitutes anaggravated felony. According to Miller, the evidence does not support the aggravated felonydetermination, and therefore he should be eligible to apply for a cancellation of removal.Exercising our “jurisdiction to determine de novo whether [Miller‟s] conviction constituted anaggravated felony,” Evanson v. Att’y Gen., 550 F.3d 284, 288 (3d Cir. 2008), we discern noerror in the BIA‟s determination.....petitions for review of the denial of her applications for asylum, withholding of removal(WOR), and relief under the Convention Against Torture (CAT). We will assume familiaritywith the standards for granting such relief from removal and with the deferential substantialevidence standard of judicial review, under which we will reverse the decision of the Board ofImmigration Appeals (BIA) only if "a reasonable adjudicator would be compelled to conclude tothe contrary." Castillo-Diaz v. Holder, 562 F.3d 23, 26 (1st Cir. 2009) (quoting 8 U.S.C.§ 1252(b)(4)(B)). We review the decision of the BIA and "those portions of the[Immigration Judge]s opinion that the BIA has adopted." Romilus v. Ashcroft, 385 F.3d 1,5 (1st Cir. 2004).....Dehonzai argues that the BIA erred in finding he had not met his burden because there waserror in the IJs adverse credibility determination. We deny the petition. The record does notcompel a reasonable factfinder to reach an opposite conclusion as to Dehonzais failure tomeet his burden or as to his credibility. See 8 U.S.C. § 1252(b)(4)(B).....Insofar as Mbakpuo seeks review of that part of the Board’s order denying reconsideration ofthe denial of cancellation of removal as a matter of discretion, this court does not havejurisdiction. See Jean v. Gonzales, 435 F.3d 475, 481 (4th Cir. 2006) (“When the [Board]refuses to reconsider the discretionary denial of relief under one of the provisions enumerated in1252(a)(2)(B) - a decision which is not subject to review in the first place - the court will nothave jurisdiction to review that same denial merely because it is dressed as a motion toreconsider.”). This court also does not have jurisdiction to review that part of the Board’s orderdeciding not to grant reopening sua sponte. Mosere v. Mukasey, 552 F.3d 397, 400-01 (4th Cir.2009).It is axiomatic that a court lacking subject matter jurisdiction over an appeal must dismissthe case. Petitioner Reynaldo Sorcia ("Sorcia") asks this Court to review the decision of theBoard of Immigration Appeals ("BIA") to deny (1) his petition for cancellation of removal and(2) his motion to reopen removal proceedings so that he could pursue cancellation of removal
  • 4. after an adjustment of status for which he had an application pending. However, because Sorciaraises no constitutional claims or questions of law, we lack jurisdiction to review thediscretionary denial of cancellation of removal. 8 U.S.C. § 1252(a)(2)(B). Further, because theBIA based its denial of Sorcia’s motion to reopen on a determination that Sorcia did not meritthe discretionary relief of cancellation of removal, we also lack jurisdiction to review the denialof the motion. See Obioha v. Gonzales, 431 F.3d 400, 406 (4th Cir. 2005). Accordingly, theappeal is dismissed.We review the denial of a motion to reopen for abuse of discretion. 8 C.F.R. § 1003.2(a) (2011);INS v. Doherty, 502 U.S. 314, 323-24 (1992); Mosere v. Mukasey, 552 F.3d 397, 400 (4th Cir.2009). The Board’s “denial of a motion to reopen is reviewed with extreme deference, giventhat motions to reopen are disfavored because every delay works to the advantage of thedeportable alien who wishes merely to remain in the United States.” Sadhvani v. Holder, 596F.3d 180, 182 (4th Cir. 2009) (citations and internal quotation marks omitted). The motion“shall state the new facts that will be proven at a hearing to be held if the motion is granted andshall be supported by affidavits or other evidentiary material.” 8 C.F.R. § 1003.2(c)(1) (2011). It“shall not be granted unless it appears to the Board that evidence sought to be offered is materialand was not available and could not have been discovered or presented at the former hearing.”Id.