533 F. App'x 268

4th Cir.

2013

Robert Samuel EAKES, Petitioner-Appellant, v. Warden McCALL, Respondent-Appellee.

No. 12-7761.

United States Court of Appeals, Fourth Circuit.

Submitted: July 9, 2013. Decided: July 18, 2013.

533 F. App‘x 268

John J. Korzen, Wake Forest University, Winston-Salem, North Carolina, for Appellant. Melody Jane Brown, Assistant Attorney General, Columbia, South Carolina, for Appellee.

Before NIEMEYER and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Dismissed by unpublished PER CURIAM opinion.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

On October 10, 2012, Robert Samuel Eakes appealed the district court‘s orders denying relief on his 28 U.S.C. § 2254 (2006) petition and denying his Fed. R. Civ. P. 59(e) motion. On June 11, 2013, we granted Eakes leave to proceed in forma pauperis, granted a certificate of appealability on one of the issues raised in his informal brief, and appointed counsel on Eakes’ behalf. When Eakes’ appointed counsel attempted to contact Eakes, he discovered that Eakes had died of natural causes on November 21, 2012, shortly after Eakes noted his appeal but before we granted a certificate of appealability. Eakes’ counsel promptly filed a suggestion of death, see Fed. R. App. P. 43(a)(1), and we directed the parties to provide their views on how this case should proceed.

Because Eakes had passed away at the time we entered the June 11 order, we vacate that order, deny Eakes leave to proceed in forma pauperis, deny a certificate of appealability, and dismiss the appeal as moot. See Hailey v. Russell, 394 U.S. 915, 915, 89 S.Ct. 1200, 22 L.Ed.2d 473 (1969) (concluding that habeas petition rendered “moot[ ] by reason of [the] death of petitioner“); McMillin v. Bowersox, 102 F.3d 987, 987 (8th Cir.1996) (“Since [petitioner‘s] imprisonment ended upon his death, and there can be no future collateral consequences flowing from his imprisonment, his collateral attack is moot.“). Moreover, having now denied a certificate of appealability, we decline Eakes’ counsel‘s invitation to vacate the district court‘s order and remand with instructions to dismiss Eakes’ § 2254 petition as moot, as we are without jurisdiction to do so. See Miller-El v. Cockrell, 537 U.S. 322, 335-36, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (holding that issuance of certificate of appealability is “jurisdictional prerequisite” to appellate court‘s review of denial of habeas relief); Krantz v. United States, 224 F.3d 125, 127 (2d Cir.2000) (declining to vacate district court‘s habeas ruling and remand with instructions to dismiss as moot because court of appeals “did not have appellate jurisdiction at the time of petitioner‘s death [as] a certificate of appealability had not yet issued“).

We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process.

DISMISSED.

MING FANG CHEN; Zhao Wu Zeng, a/k/a Zhou Wu Zheng, Petitioners, v. Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 13-1025.

United States Court of Appeals, Fourth Circuit.

Submitted: June 14, 2013. Decided: July 18, 2013.

533 F. App‘x 269

Gregory Marotta, Law Office of Richard Tarzia, Belle Mead, New Jersey, for Petitioners. Stuart F. Delery, Acting Assistant Attorney General, Shelley R. Goad, Assistant Director, Kristen Giuffreda Chapman, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent.

Before DUNCAN, DAVIS, and DIAZ, Circuit Judges.

Petition denied by unpublished PER CURIAM opinion.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

The Petitioners, Ming Fang Chen and her husband, Zhao Wu Zeng, natives and citizens of the People‘s Republic of China, petition for review of an order of the Board of Immigration Appeals (“Board“) dismissing their appeal from the immigration judge‘s denial of their requests for asylum, withholding of removal, and protection under the Convention Against Torture. The Board‘s order also denied the Petitioners’ motion for remand.

We have thoroughly reviewed the record, including the State Department‘s 2007 report on China: Profile of Asylum Claims and Country Conditions, the transcript of the Petitioners’ merits hearing, and the Petitioners’ asylum applications and supporting evidence. We conclude that the record evidence does not compel a ruling contrary to any of the administrative factual findings, see 8 U.S.C. § 1252(b)(4)(B) (2006), and that substantial evidence supports the Board‘s decision. See INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). We have also reviewed the denial of the Petitioners’ motion to remand and find no abuse of discretion. See Onyeme v. INS, 146 F.3d 227, 234 (4th Cir.1998) (setting forth standard of review).

Accordingly, we deny the petition for review^* for the reasons stated by the Board. See In re: Ming Fang Chen (B.I.A. Dec. 14, 2012). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

PETITION DENIED.

Notes

The Petitioners have failed to raise any challenges to the denial of their request for protection under the Convention Against Torture. They have therefore waived appellate review of this claim. See .