07-4984-ag
Huang 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 24 th day of May, two thousand ten.
PRESENT:
DENNIS JACOBS,
Chief Judge,
JON O. NEWMAN,
PIERRE N. LEVAL,
Circuit Judges.
_________________________________
XUE GUI HUANG v. HOLDER, 1 07-4984-ag
A078 848 824
_________________________________
MEI FANG LIN v. BCIS, 07-5313-ag
A073 658 580
_________________________________
YI DI GUO v. HOLDER, 07-5787-ag
A073 178 433
_________________________________
1
Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General
Eric. H. Holder, Jr., is automatically substituted for former Attorney Generals
where necessary.
03082010-1-20
_________________________________
PIN KAO ZHANG v. HOLDER, 08-1251-ag
A073 541 463
_________________________________
SONG XUE GAO, KIN WO HA
v. HOLDER, 08-1779-ag
A098 975 105
A098 975 106
_________________________________
FENG LING ZHENG, DE CHAI
CHI v. HOLDER 08-2108-ag
A078 692 303
A098 972 052
_________________________________
LIQIN BIAN, AKA LI QIN BIAN,
KONG ZHANG NI v. HOLDER, 08-2460-ag
A076 478 753
A070 893 053
_________________________________
XUE YU WANG v. HOLDER, 08-3248-ag
A099 592 457
_________________________________
GUO SHUI LIN v. HOLDER, 08-4369-ag
A073 787 941
_________________________________
BAOYUN CHEN, XILIN SHI v.
HOLDER, 08-5322-ag
A099 076 707
A099 076 708
_________________________________
YUE MING JIN v. HOLDER, 08-5551-ag
A094 778 719
_________________________________
03082010-1-20 -2-
_________________________________
XIU ZHEN WANG, BAI LIN
v. HOLDER, 08-5892-ag
A099 930 724
A078 221 998
_________________________________
YAN CHEN CHEN v. HOLDER, 08-6246-ag
A099 686 888
_________________________________
LEI LEI ZHOU, CHENG YUAN
HUANG v. HOLDER, 09-0141-ag
A099 560 248
A099 560 249
_________________________________
LI YUN LIN v. HOLDER, 09-0245-ag
A098 971 528
_________________________________
NENG QUAN WANG v. HOLDER, 09-0261-ag
A099 927 095
_________________________________
WAN ZHEN ZHENG, BIN CHEN
v. HOLDER, 09-0529-ag
A099 938 919
A099 938 920
_________________________________
YA QIN HUANG, ZENG XIONG
ZHENG v. HOLDER, 09-1545-ag
A094 046 463
A094 046 464
_________________________________
XIU JIN LIN v. HOLDER, 09-2745-ag
A094 813 717
_________________________________
UPON DUE CONSIDERATION of these petitions for review of
-3-
several Board of Immigration Appeals (“BIA”) orders, it is
hereby ORDERED, ADJUDGED, AND DECREED, that these petitions
for review are DENIED.
Petitioners, all citizens of China, seek review of BIA
orders either affirming an immigration judge’s (“IJ’s”)
decision denying asylum and related relief or reversing the
IJ’s decision granting relief based on their claim that they
fear persecution because they had one or more children in the
United States. For largely the same reasons as this Court set
forth in Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.
2008), we find no error in the BIA’s decision denying each
application. 2 See id. at 168-72.
Some of the petitioners argue that the BIA failed to give
sufficient consideration or importance to the affidavit of Jin
Fu Chen, who alleged that he suffered forcible sterilization
after his return to China based on the two children born to
his wife in Japan. A prior panel of this Court has remanded
a petition making a similar claim so that Jin Fu Chen’s
affidavit (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 the remand in Zheng,
2
We decline to review petitioners’ illegal departure claim in Bian v.
Holder, Docket No. 08-2460-ag, because they failed to exhaust this argument
before the agency. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 107
n.1, 122 (2d Cir. 2007).
-4-
the BIA has considered the Jin Fu Chen affidavit in numerous
cases and has repeatedly concluded that it neither
demonstrates material changed country conditions nor supports
a well-founded fear of persecution. See, e.g., In re Ai Bin
Chen, No. A078 727 599 (B.I.A. 2009); Mei Feng Weng, No. A077
322 259 (B.I.A. 2009). Accordingly, it is clear that further
consideration of the affidavit 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 affidavit involved any
error of law.
Some of the petitioners also argue that the BIA has erred
by improperly conducting de novo review of determinations made
by an IJ. They rely on the recent decision of the Third
Circuit, ruling, 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, No. 08-2571, 2010 WL 1409019 (3d
Cir. April 9, 2010). Their claim lacks merit. The BIA has
not reviewed de novo any of the IJs’ factual findings.
-5-
Instead, the BIA has concluded, on de novo review, that the
factual findings do not meet the legal standard of an
objectively reasonable fear of persecution, in these cases, a
fear of forced sterilization. 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”).
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
03082010-1-20 -6-