Tang v. Holder ( 2011 )

07-4779-ag
Tang 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 22nd day of April, two thousand eleven.
PRESENT:
DENNIS JACOBS,
Chief Judge.
JON O. NEWMAN,
PIERRE N. LEVAL,
Circuit Judges.
_______________________________________
YAN ZHU LU v. HOLDER,1 07-4187-ag
A077 297 838
_______________________________________
CUI YING YANG, YUN JIN LIAN v. 07-4401-ag
HOLDER,
A097 849 570
A073 577 705
_______________________________________
1
Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
Attorney General Eric H. Holder, Jr. is automatically substituted
as respondent where necessary.
09132010-1-20
_______________________________________
JING YAN TANG v. HOLDER, UNITED STATES 07-4779-ag
DEPARTMENT OF JUSTICE,
A077 121 600
_______________________________________
YU ZHEN CHEN v. HOLDER, 07-5109-ag
A097 753 317
_______________________________________
WENZHONG CHENG v. HOLDER, 08-0407-ag
A098 255 761
_______________________________________
XIU MEI DONG v. HOLDER, 08-0446-ag
A077 977 769
_______________________________________
XIAO JUN LIN v. HOLDER, 08-1713-ag
A098 776 207
_______________________________________
MEI DONG v. HOLDER, 08-2537-ag
A098 713 548
_______________________________________
QIAO FANG CHEN v. HOLDER, 08-3179-ag
A095 357 599
_______________________________________
MEI RONG GAO, YING TAO LIN v. HOLDER, 08-3413-ag
A099 560 436
A099 560 437
_______________________________________
AI RONG LIN v. HOLDER, 08-4492-ag
A077 777 009
_______________________________________
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_______________________________________
JI CHUN YANG v. HOLDER, 09-1839-ag
A099 073 349
_______________________________________
QIAOMENG ZHOU v. HOLDER, 09-2013-ag
A099 387 277
_______________________________________
YUN LIN v. HOLDER, 09-2155-ag
A073 662 328
_______________________________________
SHUI JIN WU, MIN SONG LIN v. HOLDER, 09-2176-ag
UNITED STATES DEPARTMENT OF JUSTICE,
A098 977 523
A098 977 524
_______________________________________
YAN ZHEN CHEN v. HOLDER, 09-2664-ag
A098 391 488
_______________________________________
QIN YUN ZHENG v. HOLDER, 09-2862-ag
A096 417 478
_______________________________________
YAN YING WU v. HOLDER, 09-3365-ag
A099 683 161
_______________________________________
MIN CHEN v. HOLDER, 09-3376-ag
A088 379 559
_______________________________________
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UPON DUE CONSIDERATION of these petitions for review of
Board of Immigration Appeals (“BIA”) decisions, it is hereby
ORDERED, ADJUDGED, AND DECREED, that the petitions for review
are DENIED.
These petitions challenge either (1) decisions of the BIA
that either affirmed an immigration judge’s (“IJ”) denial of
asylum and related relief or reversed an IJ’s grant of
relief,2 or (2) BIA denials of motions to remand or reopen,3
or (3) rulings of both kinds.4 The applicable standards of
review by this Court 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, sought
relief from removal based on their claim that they fear
persecution because they have one or more children in
2
The petitioners in Jing Yan Tang v. U.S. Dep’t of Justice,
No. 07-4779-ag; Wenzhong Cheng v. Holder, No. 08-0407-ag; Xiao Jun
Lin v. Holder, No. 08-1713-ag; Mei Rong Gao, Ying Tao Lin v.
Holder, No. 08-3413-ag; Ai Rong Lin v. Holder, No. 08-4492-ag; Ji
Chun Yang v. Holder, No. 09-1839-ag; Qiaomeng Zhou v. Holder, No.
09-2013-ag; Yan Zhen Chen v. Holder, No. 09-2664-ag; Qin Yun Zheng
v. Holder, No. 09-2862-ag; and Min Chen v. Holder, No. 09-3376-ag.
3
The petitioners in Yan Zhu Lu v. Holder, No. 07-4187-ag; Cui
Ying Yang, Yun Jin Lian v. Holder, No. 07-4401-ag; Xiu Mei Dong v.
Holder, No. 08-0446-ag; and Yun Lin v. Holder, No. 09-2155-ag.
4
The petitioners in Yu Zhen Chen v. Holder, No. 07-5109-ag;
Mei Dong v. Holder, No. 08-2537-ag; Qiao Fang Chen v. Holder, No.
08-3179-ag; Shui Jin Wu, Min Song Lin v. Holder, No. 09-2176-ag;
and Yan Ying Wu v. Holder, No. 09-3365-ag.
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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, the agency’s decisions are not erroneous. See id.
at 158-72. Although the petitioners in Jian Hui Shao were
from Fujian Province, as are most of the petitioners here,
some petitioners5 are from Zhejiang and Guangdong Provinces.
Regardless, as with the evidence discussed in Jian Hui Shao,
the evidence they have submitted related to Zhejiang and
Guangdong Provinces either does not discuss forced
sterilizations or references isolated incidents of persecution
of individuals who are not similarly situated to the
petitioners. See id. at 160-61, 171-72.
Some of the petitioners6 also argue that the BIA has erred
by improperly making de novo factual findings rejecting the
determinations made by an IJ. Their claims lack merit. The
BIA has not made de novo factual findings. Instead, the BIA
has concluded that the IJ’s factual findings do not meet the
legal standard of an objectively reasonable fear of
persecution, in these cases, a fear of forced sterilization or
5
The petitioners in Mei Rong Gao, Ying Tao Lin v. Holder, No.
08-3413-ag; and Qiaomeng Zhou v. Holder, No. 09-2013-ag.
6
The petitioners in Ji Chun Yang v. Holder, No. 09-1839-ag;
and Shui Jin Wu, Min Song Lin v. Holder, No. 09-2176-ag.
09132010-1-20 -5-
economic 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 “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”).
We decline the request of some of the petitioners7 that
we take judicial notice of documents outside 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, 269-70 (2d Cir.
2007).
For the same reasons as this Court set forth in Yuen Jin
v. Mukasey, 538 F.3d 143, 156, 158-59 (2d Cir. 2008), the BIA
did not err in concluding that those petitioners8 seeking to
file a successive asylum application based on their changed
7
The petitioners in Jing Yan Tang v. Holder, No. 07-4779-ag;
and Mei Dong v. Holder, No. 08-2537-ag.
8
The petitioners in Yan Zhu Lu v. Holder, No. 07-4187-ag; and
Cui Ying Yang, Yun Jin Lian v. Holder, No. 07-4401-ag.
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personal circumstances without filing a timely motion to
reopen were not eligible to do so.
Two of the petitioners9 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
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). We cannot say, furthermore, that the
agency’s conclusion concerning the probative force of the
statement involved any error of law.
The BIA did not err in Xiao Jun Lin v. Holder, No. 08-
1713-ag, in declining to consider the petitioner’s eligibility
9
The petitioners in Mei Rong Gao, Ying Tao Lin v. Holder, No.
08-3413-ag.
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for relief based on her Falun Gong claim because she failed to
exhaust this claim in her brief on appeal to the BIA. In Ai
Rong Lin v. Holder, No. 08-4492-ag, we decline to consider
petitioner’s unexhausted claim for CAT relief based on her
illegal departure from China. See Lin Zhong v. U.S. Dep’t of
Justice, 480 F.3d 104, 124 (2d Cir. 2007). In Ji Chun Yang v.
Holder, No. 09-1839-ag, we assume hypothetical jurisdiction to
consider petitioner’s unexhausted claim that she is eligible
for withholding of removal because the “jurisdictional issues
are complex and the substance of the claim is . . . plainly
without merit,” Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d
332, 338 (2d Cir 2006), particularly when her claim for
withholding of removal was predicated entirely on the same
facts as her claim for asylum, see Paul v. Gonzales, 444 F.3d
148, 156 (2d Cir. 2006). In Qiaomeng Zhou v. Holder, No. 09-
2013-ag, we lack jurisdiction either to review the agency’s
pretermission of petitioner’s application for asylum as
untimely under 8 U.S.C. § 1158(a)(2)(B), see 8 U.S.C. §
1158(a)(3), or to consider petitioner’s unexhausted argument
that he is eligible for CAT relief, see Karaj v. Gonzales, 462
F.3d 113, 119 (2d Cir. 2006) (citing Beharry v. Ashcroft, 329
F.3d 51, 59 (2d Cir. 2003)). In Shui Jin Wu, Min Song Lin v.
09132010-1-20 -8-
Holder, No. 09-2176-ag, we need not consider whether we have
jurisdiction to review petitioners’ challenge to the BIA’s
pretermission of their application for asylum as untimely
because the BIA’s alternative finding that they failed to
demonstrate their eligibility for asylum was supported by
substantial evidence. In Yan Zhen Chen v. Holder, No. 09-
2664-ag, we decline to consider petitioner’s unexhausted
arguments, and we need not consider petitioner’s contention
that the IJ’s positive credibility determination is supported
by the record because the BIA assumed, arguendo, that she was
credible for purposes of her appeal. Finally, in Qin Yun
Zheng v. Holder, No. 09-2862-ag, there is no merit to
petitioner’s argument that she established her eligibility for
withholding of removal and CAT relief based on her purportedly
illegal departure from China. See Qun Yang v. McElroy, 277
F.3d 158, 163 n.5 (2d Cir. 2002) (per curiam); see also Mu
Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156, 159-60 (2d
Cir. 2005).
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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
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