Chan Lin v. Holder , 398 F. App'x 668 ( 2010 )

07-4283-ag (L), 08-0688-ag (Con)
Lin v. Holder
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL
RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING
A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”).
A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 26th day of October, two thousand ten.
PRESENT:
DENNIS JACOBS,
Chief Judge,
JON O. NEWMAN,
PIERRE N. LEVAL,
Circuit Judges.
______________________________
CHAN LIN v. HOLDER,1 07-4283-ag (L)
A098 586 706 08-0688-ag (Con)
______________________________
XIU YING CHEN v. HOLDER, 07-4940-ag
A098 973 915
______________________________
TING LIN v. UNITED STATES 07-5006-ag
DEPARTMENT OF JUSTICE,
A077 292 841
______________________________
Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
1
Attorney General Eric. H. Holder, Jr., is automatically substituted
where necessary.
08302010-1-28
______________________________
YI LAN LI v. UNITED STATES 07-5339-ag (L)
ATTORNEY GENERAL, 08-2538-ag (Con)
A095 476 271
______________________________
HSIANG JIN CHENG, AKA YUEN 07-5660-ag
MAN CHAN, AKA XIANG JIN
ZHENG v. HOLDER,
A077 354 565
______________________________
XIN ZHENG v. HOLDER, 08-1214-ag
A073 543 533
______________________________
XIAOYE ZHANG v. HOLDER, 08-1404-ag
A099 076 716
______________________________
YU JIE CHEN v. HOLDER, 08-1740-ag
A070 908 620
______________________________
MEI RONG LIN v. HOLDER, 08-2032-ag
A077 769 644
______________________________
JIN YUN WU v. HOLDER, 08-2627-ag
A097 479 002
______________________________
PING CHEN, AKA AI LING NEO 08-3035-ag (L)
v. HOLDER, 09-0200-ag (Con)
A077 994 104
______________________________
HAI OU DONG, AKA HAIOU HU 08-3534-ag (L)
v. HOLDER, 09-1087-ag (Con)
A097 976 136
______________________________
08302010-1-28 -2-
______________________________
MEI HUANG v. HOLDER, 08-3795-ag
A096 332 846
______________________________
YING HUA CHEN, AKA YI HUA 08-4315-ag
CHEN, AKA HUA CHEN, AKA
YING-HUA CHEN, DE XING WANG,
AKA DI XING WANG v. HOLDER,
A099 564 706
A099 564 707
______________________________
XUEYING LI v. HOLDER, 08-4863-ag (L)
A079 776 082 09-2701-ag (Con)
______________________________
FU ZHEN ZHENG, AKA DUN RI 08-5839-ag
ZHENG v. HOLDER,
A077 958 111
______________________________
MEI YUN GUO v. HOLDER, 08-6296-ag
A099 074 200
______________________________
LI MIN HU v. HOLDER, 09-0347-ag
A073 661 053
______________________________
WU JIAN HE v. HOLDER, 09-0422-ag
A073 552 855
______________________________
GUANG DA LI v. HOLDER, 09-0575-ag
A076 506 231
______________________________
TIAN YOU YANG v. HOLDER, 09-1262-ag
A073 039 576
______________________________
08302010-1-28 -3-
______________________________
XIA LI v. HOLDER, 09-1394-ag
A099 429 143
______________________________
BEN CHEN v. HOLDER, 09-1506-ag
A072 473 754
______________________________
XIAN QU ZHENG v. HOLDER, 09-1509-ag
A073 033 112
______________________________
BI YUE NI v. HOLDER, 09-1693-ag
A094 044 884
______________________________
AI ZHU DONG, CHUN RONG LIN 09-2231-ag
v. HOLDER,
A077 354 403
A097 478 867
______________________________
BI XIAN ZHANG v. HOLDER, 09-2500-ag
A090 347 388
______________________________
XIN RONG LIN, AKA RONG LIN 09-4159-ag
XIN v. HOLDER,
A072 360 974
______________________________
UPON DUE CONSIDERATION of these petitions for review of
several Board of Immigration Appeals (“BIA”) decisions, it is
hereby ORDERED, ADJUDGED, AND DECREED, that the petitions for
review are DENIED.
Each of these petitions challenges a decision of the BIA:
08302010-1-28 -4-
(1) affirming the decision of an immigration judge (“IJ”)
denying asylum and related relief; (2) reversing the IJ’s
decision granting relief; (3) denying motions to remand,
reconsider, or reopen; and/or (4) affirming the IJ’s denial of
motions to reconsider or reopen. The applicable standards of
review are well-established. See Jian Hui Shao v. Mukasey,
546 F.3d 138, 157-58, 168-69 (2d Cir. 2008).
Petitioners, all natives and citizens of China, filed
applications and motions based on their claim that they fear
persecution because they have one or more children in
violation of China’s population control program. For largely
the same reasons as this Court set forth in Jian Hui Shao, 546
F.3d 138, we conclude there is no error in the agency’s
decisions. See id. at 158-72. Although the petitioners in
Jian Hui Shao were from Fujian Province, as are most of the
petitioners here, four petitioners are from Zhejiang
Province.2 Regardless, as with the evidence discussed in Jian
Hui Shao, the evidence they submitted related to Zhejiang
Province either does not discuss forced sterilizations or
references isolated incidents of persecution of individuals
2
The petitioners in Xiaoye Zhang v. Holder, No. 08-1404-ag;
Hai Ou Dong v. Holder, Nos. 08-3534-ag (L), 09-1087-ag (Con); Li
Min Hu v. Holder, No. 09-0347-ag; and Xin Rong Lin v. Holder, No.
09-4159-ag.
08302010-1-28 -5-
who are not similarly situated to the petitioners. See id. at
160-61, 171-72.
Some of the petitioners3 argue that the BIA erred by
improperly conducting de novo review of determinations made by
an IJ. Many of them rely on a recent decision of the Third
Circuit, holding, in the context of a claim under the
Convention Against Torture, that the BIA must review for clear
error findings of fact, including predictions of future
events, but that conclusions of law as to whether the facts
found satisfy a legal standard are reviewed de novo. See
Kaplun v. Attorney General, 602 F.3d 260 (3d Cir. 2010).
These claims lack merit. The BIA has not reviewed de novo any
of the IJs’ factual findings. Instead, the BIA has concluded,
on de novo review, that the evidence does not meet the legal
standard of an objectively reasonable fear of persecution.
That approach is entirely consistent with the applicable
regulation, 8 C.F.R. § 1003.1(d)(3). See Jian Hui Shao, 546
F.3d at 162-63 (concluding that the BIA did not erroneously
conduct de novo review of the IJ’s factual findings by making
3
The petitioners in Chan Lin v. Holder, Nos. 07-4283-ag (L),
08-0688-ag (Con); Xiu Ying Chen v. Holder, No. 07-4940-ag; Hai Ou
Dong v. Holder, Nos. 08-3534-ag (L), 09-1087-ag (Con); Mei Yun Guo
v. Holder, No. 08-6296-ag; Xia Li v. Holder, No. 09-1394-ag; Bi Yue
Ni v. Holder, No. 09-1693-ag; and Bi Xian Zhang v. Holder, No. 09-
2500-ag.
08302010-1-28 -6-
“a legal determination that, while [petitioners’] credible
testimony was sufficient to demonstrate a genuine subjective
fear of future persecution, more was needed to demonstrate the
objective reasonableness of that fear”).
Three of the petitioners argue that the BIA applied an
incorrect burden of proof by requiring them to establish more
than their prima facie eligibility for relief. However, in
two of those cases,4 the BIA explicitly considered the
petitioners’ prima facie eligibility for relief. See INS v.
Abudu, 485 U.S. 94, 104 (1988). In the other case,5 the BIA
reasonably found that the petitioner failed to demonstrate
changed country conditions excusing the untimely filing of his
motion to reopen. See 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R.
§ 1003.2(c).
Some of the petitioners6 argue that the BIA failed to give
sufficient consideration to the statement of Jin Fu Chen, who
alleged that he suffered forcible sterilization after his
4
Ping Chen v. Holder, Nos. 08-3035-ag (L), 09-0200-ag (Con);
and Xueying Li v. Holder, Nos. 08-4863-ag (L), 09-2701-ag (Con).
5
Wu Jian He v. Holder, No. 09-0422-ag.
6
The petitioners in Ying Hua Chen, De Xing Wang v. Holder, No.
08-4315-ag; Xueying Li v. Holder, Nos. 08-4863-ag (L), 09-2701-ag
(Con); Wu Jian He v. Holder, No. 09-0422-ag; Bi Yue Ni v. Holder,
No. 09-1693-ag; and Bi Xian Zhang v. Holder, No. 09-2500-ag.
08302010-1-28 -7-
return to China based on the births of his two children in
Japan. A prior panel of this Court has remanded a petition
making a similar claim so that Jin Fu Chen’s statement (which
was submitted to the BIA after a remand) could be considered
by the IJ. See Zheng v. Holder, No. 07-3970-ag (2d Cir. Jan.
15, 2010). Since that remand, the BIA has repeatedly
concluded that Jin Fu Chen’s statement does not support a
claim of a well-founded fear of persecution. Accordingly, it
is clear that further consideration of that statement in cases
in which the IJ or the BIA failed to consider it would not
change the result. See Shunfu Li v. Mukasey, 529 F.3d 141,
150 (2d Cir. 2008). Furthermore, the agency’s conclusion
concerning the probative force of the statement did not
involve any error of law.
Two of the petitioners7 argue that the BIA erred by
relying on the U.S. Department of State’s 2007 Profile of
Asylum Claims and Country Conditions in China (“2007 Profile”)
because statements in that document are based on mistranslated
and contradictory evidence. However, we have repeatedly
concluded, as the BIA did here, that the purportedly corrected
translations do not materially alter the meaning of the 2007
7
The petitioners in Ben Chen v. Holder, No. 09-1506-ag; and
Xian Qu Zheng v. Holder, No. 09-1509-ag.
08302010-1-28 -8-
Profile by demonstrating a risk of forced sterilization.
We decline a request by one petitioner8 to consider
evidence that was not included in the administrative record
and we will not remand for the agency to consider such
evidence. See 8 U.S.C. § 1252(b)(4)(A); see also Xiao Xing Ni
v. Gonzales, 494 F.3d 260, 269 (2d Cir. 2007). To the extent
that the BIA declined to credit two petitioners’9
unauthenticated evidence in light of an underlying adverse
credibility determination, the BIA did not abuse its
discretion. See Qin Wen Zheng v. Gonzales, 500 F.3d 143,
146-47 (2d Cir. 2007).
Insofar as two of the petitioners10 argue that the agency
erred in denying their claims for withholding of removal and
CAT relief based on their failure to demonstrate their
eligibility for asylum, the agency did not err because all of
their claims were based on the same factual predicate. See
Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).
8
The petitioner in Yi Lan Li v. U.S. Attorney Gen., Nos. 07-
5339-ag (L), 08-2538-ag (Con).
9
The petitioners in Fu Zhen Zheng v. Holder, No. 08-5839-ag;
and Guang Da Li v. Holder, No. 09-0575-ag.
10
The petitioners in Hai Ou Dong v. Holder, Nos. 08-3534-ag
(L), 09-1087-ag (Con); and Mei Yun Guo v. Holder, No. 08-6296-ag.
08302010-1-28 -9-
Additionally, contrary to another petitioner’s11 argument, the
agency did not err in determining that she was not “entitled
to CAT protection based solely on the fact that she is part of
the large class of persons who have illegally departed China.”
Mu Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156, 159-60
(2d Cir. 2005).
To the extent that one of the petitioners12 argues that
she was eligible to file a successive asylum application, that
argument is foreclosed by our decision in Yuen Jin v. Mukasey,
538 F.3d 143 (2d Cir. 2008).
We lack jurisdiction to consider a petitioner’s13
challenge to a BIA member’s decision to unilaterally decide
her appeal as opposed to referring her appeal to a three-
member panel. See Guyadin v. Gonzales, 449 F.3d 465, 469 (2d
Cir. 2006). Even assuming, arguendo, that we had jurisdiction
to consider that argument, contrary to the petitioner’s
contention, the BIA did not err in disposing of her appeal
with a single-member panel when much of the evidence that she
11
The petitioner in Jin Yun Wu v. Holder, No. 08-2627-ag.
12
The petitioner in Ting Lin v. U.S. Dep’t of Justice, No. 07-
5006-ag.
13
The petitioner in Chan Lin v. Holder, Nos. 07-4283-ag (L),
08-0688-ag (Con).
08302010-1-28 -10-
submitted had been analyzed in BIA precedential decisions.
See 8 C.F.R. § 1003.1(e)(5) (“A single Board member may
reverse the decision under review if such reversal is plainly
consistent with and required by intervening or Board or
judicial precedent”).
One of the petitioners14 argues that the BIA erred in
finding that the IJ lacked jurisdiction to consider his motion
to reopen because in a prior decision the BIA had stated that
any future motions should be filed with the IJ. However, the
BIA’s prior decision informed the petitioner to file any
future motions to rescind, as opposed to motions to reopen,
with the IJ, and the BIA did not err in finding that it had
jurisdiction over petitioner’s third motion to reopen because
it was the last administrative body to issue an order in his
proceedings. See 8 C.F.R. § 1003.23(b)(1); see also Matter of
Patino, 23 I. & N. Dec. 74, 76 (B.I.A. 2001). Regardless,
because the BIA considered the merits of that petitioner’s
third motion to reopen, and did not dismiss his appeal based
on the IJ’s lack of jurisdiction, any alleged inconsistency
was harmless.
14
The petitioner in Ben Chen v. Holder, No. 09-1506-ag.
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Contrary to another petitioner’s15 argument that the BIA
failed to provide any rational basis for denying his motion
when his wife’s similar motion had been granted, the BIA
reasonably explained that there had been intervening BIA
precedents compelling a different result. See Ke Zhen Zhao v.
U.S. Dep’t of Justice, 265 F.3d 83, 93 (2d Cir. 2001).
Finally, the BIA did not err in denying one petitioner’s16
motion to reconsider because it was untimely. See 8 C.F.R.
§ 1003.2(b)(2).
For the foregoing reasons, these petitions for review are
DENIED. As we have completed our review, any stay of removal
that the Court previously granted in these petitions is
VACATED, and any pending motion for a stay of removal in these
petitions is DISMISSED as moot. Any pending request for oral
argument in these petitions is DENIED in accordance with
Federal Rule of Appellate Procedure 34(a)(2), and Second
Circuit Local Rule 34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
15
The petitioner in Xin Zheng v. Holder, No. 08-1214-ag.
16
The petitioner in Guang Da Li v. Holder, No. 09-0575-ag.
08302010-1-28 -12-