An immigration judge held a hearing on Wang’s application
following which the judge issued a written decision and order dated
November 7, 2000, denying Wang’s application for asylum but
granting his application for withholding of removal. The government
appealed the decision and order of the immigration judge to the BIA
to the extent it granted Wang’s request for withholding of removal
and Wang cross-appealed to the extent it denied him asylum. The
BIA sustained the government’s appeal and ordered Wang removed to
China on June 6, 2003.
Wang timely filed a petition for review of the BIA’s decision
with this court and simultaneously filed a motion with the BIA for
reconsideration of its June 6, 2003 decision, arguing that it failed to
address his cross-appeal. The BIA granted Wang’s motion for
reconsideration and vacated its June 6, 2003 decision on May 11,
2004. However, in the same decision, the BIA sustained the
government’s appeal for a second time, dismissed Wang’s cross-
appeal, and ordered his removal.
Wang filed a timely petition for review of the BIA’s May 11,
2004 decision on June 10, 2004, with this court. He then moved to
withdraw his original petition for review and on July 26, 2004, we
granted that motion. At that time we also stayed his removal pending
the disposition of these proceedings.
II. JURISDICTION AND STANDARD OF REVIEW
The BIA had jurisdiction in this matter under 8 C.F.R. §
1003.1(b)(3), and we have jurisdiction to review the final order of
removal under section 242(a)(1) of the Immigration and Nationality
Act ("INA"), 8 U.S.C. § 1252(a)(1). See Chen v. Ashcroft, 376 F.3d
215, 221-22 (3d Cir. 2004).
Congress has directed us to treat the BIA’s findings of fact as
conclusive “unless any reasonable adjudicator would be compelled to
conclude to the contrary.” INA § 242(b)(4)(B); 8 U.S.C. §
1252(b)(4)(B); see INS v. Elias-Zacarias, 502 U.S. 478, 481, 112
We observe that the government does not suggest that by filing
his initial petition with this court Wang deprived the BIA of jurisdiction
to entertain the motion for reconsideration.