Huang v. Holder

10-0277-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 15th day of April, two thousand eleven. PRESENT: DENNIS JACOBS, Chief Judge, JON O. NEWMAN, PIERRE N. LEVAL, Circuit Judges. ____________________________________ YAN YUN LIN v. HOLDER, 1 08-1525-ag A095 461 815 ____________________________________ JUN QIN KE v. HOLDER, 08-4139-ag A073 661 093 ____________________________________ XING QIANG YANG, A.K.A. XING 08-5000-ag YONG YANG v. HOLDER, A076 969 048 ____________________________________ Pursuant to Federal Rule of Appellate Procedure 43(c)(2), 1 Attorney General Eric. H. Holder, Jr., is automatically substituted where necessary. 12132010-1-34 ____________________________________ XIU QIN LIN, A.K.A. XIU QING 08-6266-ag LIN v. HOLDER, A077 322 260 ____________________________________ DAO-SHU LIN v. HOLDER, 09-0167-ag A072 485 388 ____________________________________ XIU ZHU v. HOLDER, 09-0550-ag A077 660 225 ____________________________________ RUIYU WANG v. HOLDER, 09-1016-ag A096 263 970 ____________________________________ GUO YING QIU v. HOLDER, 09-1035-ag A076 027 787 ____________________________________ JINXIU ZHENG v. HOLDER, 09-1877-ag A097 478 685 ____________________________________ MING TENG ZHANG v. HOLDER, 09-2827-ag A072 373 970 ____________________________________ MING YING ZHENG, KOK POH LIN 09-2853-ag v. HOLDER, A073 045 702 A029 882 583 ____________________________________ DE YONG CHEN v. HOLDER, 09-2855-ag A073 570 843 ____________________________________ 12132010-1-34 -2- ____________________________________ XIU YING WEI v. HOLDER, 09-2967-ag A077 283 089 ____________________________________ ZHEN GUANG JIANG v. HOLDER, 09-3083-ag A073 611 310 ____________________________________ LIN JIQING v. BCIS, 09-3206-ag A029 790 914 ____________________________________ YAN YING LI, A.K.A. YAN 09-3858-ag JUAN LI v. BCIS, A079 097 331 ____________________________________ JIANG DENG, A.K.A. XIAO 09-3891-ag DONG JIANG v. HOLDER, A072 484 162 ____________________________________ XIN YING ZHENG, A.K.A. 09-4219-ag XINYING ZHENG v. HOLDER, A079 407 995 ____________________________________ CHUN-HUI HUANG, A.K.A. 09-4220-ag CHUNHUI HUANG v. HOLDER, A070 579 857 ____________________________________ SHUAI ZHENG v. HOLDER 09-4374-ag A070 311 881 ____________________________________ XUE FENG HUANG v. BCIS, 09-4613-ag A073 552 797 ____________________________________ 12132010-1-34 -3- ____________________________________ TIANGONG ZHENG, A.K.A. TIAN 09-4644-ag GONG ZHENG v. HOLDER, A078 731 678 ____________________________________ LI QING GUO v. HOLDER, 09-4648-ag A077 550 863 ____________________________________ YI JIAN WANG v. HOLDER, 09-4649-ag A073 583 147 ____________________________________ BO KUN ZHU v. HOLDER, 09-4711-ag A073 134 414 ____________________________________ XIU ZHEN LIN v. HOLDER, 09-4712-ag A099 082 786 ____________________________________ MEI RONG CHEN v. HOLDER, 09-4791-ag A077 007 626 ____________________________________ JING LI v. HOLDER, 09-4821-ag A073 625 185 ____________________________________ YAN CHEN v. HOLDER, 09-4837-ag A073 620 487 ____________________________________ XIAO LI LIU v. HOLDER, 09-4905-ag A077 297 907 ____________________________________ ZHANG BING CHEN v. HOLDER, 09-4936-ag A078 400 265 ____________________________________ 12132010-1-34 -4- ____________________________________ SUZHU ZHAO, A.K.A. SU ZHU 09-5113-ag ZHAO v. HOLDER A095 369 241 ____________________________________ TAN LAN CHI, A.K.A. DAN LING 09-5262-ag SHI v. HOLDER, A073 598 096 ____________________________________ SHI YANG HUANG v. HOLDER, 10-0277-ag A077 281 562 ____________________________________ 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 affirming an immigration judge’s (“IJ”) decision denying a motion to reopen or denying a motion to reopen in the first instance based on either the movant’s failure to demonstrate changed country conditions sufficient to avoid the applicable time and numerical limits or the movant’s failure to demonstrate prima facie eligibility for the underlying relief sought. See 8 C.F.R. §§ 1003.2(c), 1003.23(b). The applicable standards of review are well-established. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 168-69 (2d Cir. 2008). 12132010-1-34 -5- Petitioners, all natives and citizens of China, filed motions to reopen based on their claim that they fear persecution because they have one or more children in violation of China’s coercive population control program. For largely the same reasons as this Court set forth in Jian Hui Shao, 546 F.3d at 158-73, we find no error in the BIA’s decisions. While the petitioners in Jian Hui Shao were from Fujian Province, as are most of the petitioners here, five of the petitioners2 are from Zhejiang Province. As with the evidence discussed in Jian Hui Shao, which concerned Fujian Province, the evidence proffered by these petitioners concerning Zhejiang Province either does not discuss forced sterilizations or involves isolated incidents of persecution of individuals who are not similarly situated to the petitioners. See Jian Hui Shao, 546 F.3d at 160-61, 170-71. Some of the petitioners3 argue that the agency applied an incorrect burden of proof by requiring them to establish more 2 The petitioners in Xiu Ying Wei v. Holder, No. 09-2967-ag; Jiang Deng v. Holder, No. 09-3891-ag; Xue Feng Huang v. BCIS, No. 09-4613-ag; Jing Li v. Holder, No. 09-4821-ag; and Suzhu Zhao v. Holder, No. 09-5113-ag. 3 The petitioners in Xing Qiang Yang v. Holder, No. 08-5000-ag; Xin Ying Zheng v. Holder, No. 09-4219-ag; Chun-Hui Huang v. Holder, No. 09-4220-ag; Xiao Li Liu v. Holder, No. 09-4905-ag; and Zhang Bing Chen v. Holder, No. 09-4936-ag. 12132010-1-34 -6- than their prima facie eligibility for relief. However, in those cases, the agency either reasonably relied on their failure to demonstrate changed country conditions excusing the untimely filing of their motions, or concluded that they failed to establish their prima facie eligibility for relief. See 8 C.F.R. §§ 1003.2(c), 1003.23(b); see also INS v. Abudu, 485 U.S. 94, 104 (1988). Some of the petitioners4 argue that the agency 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 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 changed country conditions or a reasonable possibility of persecution. Accordingly, we find no abuse of discretion in 4 The petitioners in Jun Qin Ke v. Holder, No. 08-4139-ag; Xing Qiang Yang v. Holder, No. 08-5000-ag; Dao-Shu Lin v. Holder, No. 09-0167-ag; Chun-Hui Huang v. Holder, No. 09-4220-ag; Yan Chen v. Holder, No. 09-4837-ag; and Zhang Bing Chen v. Holder, No. 09-4936- ag. 12132010-1-34 -7- the BIA’s summary consideration of that statement in these cases. See Jian Hui Shao, 546 F.3d at 169 (recognizing that the Court has rejected the notion that the agency must “expressly parse or refute on the record each individual argument or piece of evidence offered by the petitioner”); see also Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir. 2006) (providing that the agency may summarily consider evidence that is “oft-cited” and that it “is asked to consider time and again”). We cannot say, furthermore, that the agency’s conclusions concerning the probative force of the statement involved any error of law. Eight of the petitioners5 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 Profile by demonstrating a risk of forced sterilization. To 5 The petitioners in Jinxiu Zheng v. Holder, No. 09-1877-ag; Ming Teng Zhang v. Holder, No. 09-2827-ag; Ming Ying Zheng, Kok Poh Lin v. Holder, No. 09-2853-ag; De Yong Chen v. Holder, No. 09-2855- ag; Zhen Guang Jiang v. Holder, No. 09-3083-ag; Shuai Zheng v. Holder, No. 09-4374-ag; TianGong Zheng v. Holder, No. 09-4644-ag; and Xiu Zhen Lin v. Holder, No. 09-4712-ag. 12132010-1-34 -8- the extent that the BIA declined to credit some of the petitioners’6 unauthenticated, individualized 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). Finally, one of the petitioners7 argues that the BIA violated her right to due process and equal protection of the law by refusing to reopen her proceedings to file a successive application for withholding of removal and CAT relief. The petitioner’s equal protection argument is foreclosed by Yuen Jin v. Mukasey, 538 F.3d 143, 158-59 (2d Cir. 2008). We find no merit to petitioner’s due process argument. Assuming, arguendo, that petitioner has a protected interest in withholding of removal and CAT relief, we conclude that she received constitutionally sufficient process when the agency adjudicated her initial application for relief and provided her the opportunity to submit evidence in support of two 6 The petitioners in Xiu Zhu v. Holder, No. 09-0550-ag; Jiang Deng v. Holder, No. 09-3891-ag; Xin Ying Zheng v. Holder, No. 09- 4219-ag; TianGong Zheng v. Holder, No. 09-4644-ag; Yi Jian Wang v. Holder, No. 09-4649-ag; Bo Kun Zhu v. Holder, No. 09-4711-ag; Mei Rong Chen v. Holder, No. 09-4791-ag; Jing Li v. Holder, No. 09- 4821-ag; Xiao Li Liu v. Holder, No. 09-4905-ag; and Tan Lan Chi v. Holder, No. 09-5262-ag. 7 The petitioner in Mei Rong Chen v. Holder, No. 09-4791-ag. 12132010-1-34 -9- motions to reopen. See id. at 157. 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 12132010-1-34 -10-