08-5671-ag
Zhu 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 28 th day of May, two thousand ten.
PRESENT:
DENNIS JACOBS,
Chief Judge,
JON O. NEWMAN,
PIERRE N. LEVAL,
Circuit Judges.
_________________________________
ZHAO HUI ZHU and XUE YUN ZHU 08-5671-ag(L)
v. HOLDER, 1 09-3747-ag(CON)
A094 048 718
A094 048 719
_________________________________
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) order, it is hereby
ORDERED, ADJUDGED, AND DECREED, that this petition for review
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.
is DENIED.
Petitioners, citizens of China, seek review of a BIA
order reversing the IJ’s decision granting relief based on
their claim that they fear persecution based on the birth of
their 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 their application. See id. at 168-72.
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,
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
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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.
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. 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
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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, the petition for review is
DENIED. As we have completed our review, any stay of removal
that the Court previously granted is VACATED, and any pending
motion for a stay of removal is DISMISSED as moot. Any
pending request for oral argument 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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