Chen v. Holder

09-2800-ag
Chen 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 4th day of May, two thousand eleven.

PRESENT:
DENNIS JACOBS,
Chief Judge,
JON O. NEWMAN,
PIERRE N. LEVAL,
Circuit Judges.
_______________________________________

JIA JIA ZHANG, ZIQUANG GUO v.
HOLDER,1 07-4697-ag (L);
A078 959 523 09-4195-ag(Con)
A076 789 965
_______________________________________

YI DI JIANG, JIAN QING ZHENG v. 08-0123-ag
UNITED STATES CITIZENSHIP AND
IMMIGRATION SERVICES,
A071 567 912
A072 374 064
_______________________________________

Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
1

Attorney General Eric H. Holder, Jr., is automatically substituted
as respondent where necessary.
02222011-1-28
_______________________________________

SHU WEN JIANG v. HOLDER, 08-2215-ag
A077 769 493
_______________________________________

XIU YU LIN v. HOLDER, 08-4086-ag
A099 599 270
_______________________________________

PENG FEI LIU v. HOLDER, 08-4590-ag
A073 767 870
_______________________________________

HONG WU v. HOLDER, 08-5398-ag
A094 814 759
_______________________________________

HUIZHEN LIN v. HOLDER, 08-5724-ag
A093 409 789
_______________________________________

RU-ZHEN ZHENG, A.K.A. LU JING JAN
v. HOLDER, 08-6125-ag
A072 460 978
_______________________________________

DUAN LIN v. HOLDER, 09-1088-ag
A094 824 731
_______________________________________

02222011-1-28 -2-
_______________________________________

RONG CHEN v. HOLDER, 09-1948-ag
A088 378 064
_______________________________________

ER CHEN v. HOLDER, 09-2800-ag
A079 069 093
_______________________________________

QING YAN LIN, FEI QIANG GAN v.
HOLDER, 09-3225-ag
A029 813 707
A029 813 706
_______________________________________

HONG MEI SHI v. HOLDER, 09-3285-ag
A099 928 309
_______________________________________

JINGRE WANG, A.K.A. JIN KE WANG,
A.K.A. JIN KAN WANG v. HOLDER, 09-3287-ag
A072 780 801
_______________________________________

MEI MEI CHEN, YULAN LIN v. HOLDER, 09-3445-ag
A070 893 461
A070 892 433
_______________________________________

LAN FANG HUANG v. HOLDER, 09-4004-ag
A077 122 682
_______________________________________

DAN YUN CHEN v. HOLDER, 09-4073-ag
A099 927 378
_______________________________________

SHU YING WU v. HOLDER, 09-4500-ag
A094 783 490
_______________________________________

02222011-1-28 -3-
_______________________________________

HUA ZHENG v. HOLDER, 09-4576-ag
A079 114 543
_______________________________________

CHENG JIAN ZHENG v. HOLDER, 09-4614-ag
A073 165 181
_______________________________________

XIAO YAN WU, A.K.A. XIAOYAN WU
v. HOLDER, 09-4883-ag
A075 955 399
_______________________________________

XIU ZHEN YU, HAI HUA WANG, HUI WANG v.
HOLDER, 09-4995-ag
A093 394 067
A093 394 068
A076 143 077
_______________________________________

YU HUA ZHANG v. HOLDER, 09-5036-ag
A093 412 580
_______________________________________

HUA QIN LIN, TIAN HUA CHEN v. HOLDER, 09-5094-ag
A099 927 231
A099 927 232
_______________________________________

GUI HUA LIN v. HOLDER, 10-91-ag
A070 505 399
_______________________________________

WEN JING XU, GUAN HUA LI v. HOLDER, 10-95-ag
A097 976 656
A097 976 657
_______________________________________

02222011-1-28 -4-
_______________________________________

LISHUANG PAN v. HOLDER, 10-517-ag
A094 797 951
_______________________________________

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.

Each of these petitions challenges a decision of the BIA

either affirming the decision of an immigration judge (“IJ”)

denying asylum and related relief or reversing the IJ’s

decision granting relief. Some of the petitioners2 also

challenge decisions of the BIA denying motions to remand 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, sought

relief from removal based on their claim that they fear

persecution because they have had one or more children in

violation of China’s population control program. For largely

Petitioner Ziquang Guo in Jia Jia Zhang, Ziquang Guo v.
2

Holder, Nos. 07-4697-ag (L), 09-4195-ag (Con); and the petitioners
in Shu Wen Jiang v. Holder, No. 08-2215-ag; Xiu Yu Lin v. Holder,
No. 08-4086-ag; Hong Wu v. Holder, No. 08-5398-ag; Hong Mei Shi v.
Holder, No. 09-3285-ag; and Shu Ying Wu v. Holder, No. 09-4500-ag.

02222011-1-28 -5-
the same reasons as this Court set forth in Jian Hui Shao, 546

F.3d 138, we find 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,

some petitioners3 are from Zhejiang, Guangdong, and Henan

Provinces. Regardless, as with the evidence discussed in Jian

Hui Shao, the evidence they have submitted relating to

Zhejiang, Guangdong, and Henan 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 petitioners4 argue that the BIA erred by

The petitioners in Qing Yan Lin, Fei Qiang Gan v. Holder, No.
3

09-3225-ag; Jingre Wang v. Holder, No. 09-3287-ag; Xiu Zhen Yu, Hai
Hua Wang, Hui Wang v. Holder, No. 09-4995-ag; and Wen Jing Xu, Guan
Hua Li v. Holder, No. 10-95-ag.

The petitioners in Yi Di Jiang, Jian Qing Zheng v. Holder, No.
4

08-0123-ag; Shu Wen Jiang v. Holder, No. 08-2215-ag; Peng Fei Liu
v. Holder, No. 08-4590-ag; Ru-Zhen Zheng v. Holder, No. 08-6125-ag;
Duan Lin v. Holder, No. 09-1088-ag; Hong Mei Shi v. Holder, No. 09-
3285-ag; Jingre Wang v. Holder, No. 09-3287-ag; Lan Fang Huang v.
Holder, No. 09-4004-ag; Dan Yun Chen v. Holder, No. 09-4073-ag; Shu
Ying Wu v. Holder, No. 09-4500-ag; Hua Zheng v. Holder, No. 09-
4576-ag; Yu Hua Zhang v. Holder, No. 09-5036-ag; Hua Qin Lin, Tian
Hua Chen v. Holder, No. 09-5094-ag; Gui Hua Lin v. Holder, No. 10-
91-ag; Wen Jing Xu, Guan Hua Li v. Holder, No. 10-95-ag; and
LiShuang Pan v. Holder, No. 10-517-ag. We need not consider the
argument raised in Hong Wu v. Holder, No. 08-5398-ag, that the BIA
engaged in improper de novo review in deeming petitioner’s
application for asylum untimely filed because the BIA alternatively
adopted and affirmed the IJ’s reasonable finding that petitioner
failed to establish his eligibility for that form of relief.

02222011-1-28 -6-
improperly conducting de novo review of determinations made by

an IJ. Many of them rely on a decision of the Third Circuit,

ruling, in the context of a claim under the Convention Against

Torture (“CAT”), that, although the BIA may review de novo

conclusions of law as to whether the facts found satisfy a

particular legal standard, it must employ a clear error

standard in reviewing findings of fact, including predictions

of future events. See Kaplun v. Attorney General, 602 F.3d

260 (3d Cir. 2010). Their 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 factual

findings do not meet the legal standard of an objectively

reasonable fear of persecution, in these cases, a fear of

forced sterilization or 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”).

02222011-1-28 -7-
 Some of the petitioners5 argue that the agency applied an

incorrect burden of proof by requiring them to establish a

certainty of persecution. To the contrary, in those cases,

the agency explicitly applied the appropriate well-founded

fear of persecution standard. See Jian Hui Shao, 546 F.3d at

156.

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 forced 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 the remand in Zheng, the BIA has repeatedly

The petitioners in Ru-Zhen Zheng v. Holder, No. 08-6125-ag;
5

Duan Lin v. Holder, No. 09-1088-ag; Xiu Zhen Yu, Hai Hua Wang, Hui
Wang v. Holder, No. 09-4995-ag; and Gui Hua Lin v. Holder, No. 10-
91-ag.

The petitioners in Xiu Yu Lin v. Holder, No. 08-4086-ag; Hong
6

Wu v. Holder, No. 08-5398-ag; Duan Lin v. Holder, No. 09-1088-ag;
Hong Mei Shi v. Holder, No. 09-3285-ag; Jingre Wang v. Holder, No.
09-3287-ag; Dan Yun Chen v. Holder, No. 09-4073-ag; Shu Ying Wu v.
Holder, No. 09-4500-ag; Hua Zheng v. Holder, No. 09-4576-ag; Xiao
Yan Wu v. Holder, No. 09-4883-ag; Xiu Zhen Yu, Hai Hua Wang, and
Hui Wang v. Holder, No. 09-4995-ag; Yu Hua Zhang v. Holder, No. 09-
5036-ag; and Hua Qin Lin, Tian Hua Chen v. Holder, No. 09-5094-ag.

02222011-1-28 -8-
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 the 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 was not in

error.

In Rong Chen v. Holder, No. 09-1948-ag and Gui Hua Lin v.

Holder, No. 10-91-ag, the BIA did not err in summarily denying

petitioners’ claims for withholding of removal or CAT relief

based on their failure to demonstrate their eligibility for

asylum because the claims shared the same factual predicates.

See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006). In

Er Chen v. Holder, No. 09-2800-ag, the agency did not err in

declining to credit petitioner’s unauthenticated evidence in

light of an underlying adverse credibility determination. See

Qin Wen Zheng v. Gonzales, 500 F.3d 143, 146-47 (2d Cir.

2007). In Wen Jing Xu, Guan Hua Li v. Holder, No. 10-95-ag,

although the BIA may have erred in failing to explicitly

consider a letter from petitioners’ relative stating that

officials informed her that the family planning policy would

02222011-1-28 -9-
apply to the petitioners and that sterilizations are performed

by force, remand for consideration of this letter would be

futile because we can confidently predict that the BIA would

find insufficient this unsworn, second-hand account,

particularly in light of the BIA’s reasonable finding that the

country conditions evidence in the record did not indicate

that force is used to enforce the family planning policy in

petitioners’ home province. See Shunfu Li, 529 F.3d at 150;

cf. Jian Hui Shao, 546 F.3d at 159-61 (concluding that the BIA

does not err in finding that isolated or unattributed reports

of forced sterilizations are insufficient to demonstrate a

well-founded fear of persecution in light of significant

country conditions evidence to the contrary). In LiShuang Pan

v. Holder, No. 10-517-ag, we find no merit to petitioner’s

argument that he established his eligibility for relief based

on his use of a smuggler to depart China and enter the United

States illegally. See Mu Xiang Lin v. U.S. Dep’t of Justice,

432 F.3d 156, 159-60 (2d Cir. 2005).

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

02222011-1-28 -10-
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

02222011-1-28 -11-