Xia v. Holder

10-1036-ag
Xia 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 12th day of January, two thousand twelve.

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

XIU QIN HUANG v. HOLDER,1 08-5530-ag
A077 958 016
_______________________________________

YAO LING WANG, XIAO GAO v. HOLDER, 10-291-ag
A088 378 231
A088 378 232
_______________________________________

XUE QIN LIN v. U.S. DEP’T OF JUSTICE,
ERIC H. HOLDER, JR., 10-321-ag
A099 083 219

1
Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
Attorney General Eric H. Holder, Jr., is automatically substituted
as respondent where necessary.
09262011-1-28
ZHONG LIN JIANG v. HOLDER, 10-460-ag
A099 697 058
_______________________________________

YUE JIN LIU v. HOLDER, 10-843-ag
A088 530 507
_______________________________________

QIN LIN v. HOLDER, 10-923-ag
A088 377 936
_______________________________________

YING WANG v. HOLDER, 10-947-ag
A088 378 141
_______________________________________

JIAN XIN GAO v. HOLDER, 10-1022-ag
A089 253 260
_______________________________________

XIU QIN CHEN v. HOLDER, 10-1031-ag
A098 480 124
_______________________________________

XIAO JING XIA, CHANG GUANG DONG
v. HOLDER, 10-1036-ag
A098 973 227
A098 902 360
_______________________________________

YIN YING CAO v. HOLDER, 10-1171-ag
A099 927 142
_______________________________________

MEI RU LIN v. HOLDER, 10-1268-ag
A098 279 231
___________________________

XIU FANG CHEN, A.K.A. JIN FANG CHEN
v. HOLDER, 10-1291-ag
A088 380 456
_______________________________________

09262011-1-28 -2-
MEI ZHU LIN v. HOLDER, 10-1292-ag
A093 396 857
_______________________________________

ZHU CHAO WANG v. HOLDER, 10-1293-ag
A089 253 373
_______________________________________

QIN PING LIN, FEI GUAN v. HOLDER, 10-1422-ag
A090 347 257
A090 347 258
_______________________________________

LIN FEI XIE v. HOLDER, 10-1424-ag
A099 683 978
_______________________________________

AI QIN SHI, A.K.A. XI LEI YANG, YONG
JIE LIU v. HOLDER, 10-1837-ag
A089 252 403
A089 252 404
_______________________________________

XIU JIANG HUANG v. HOLDER, 10-1895-ag
A088 524 966
_______________________________________

YU PING BAO v. HOLDER, 10-1902-ag (L);
A098 419 779 11-843-ag (Con)
_______________________________________

YONG CHEN v. HOLDER, 10-1998-ag
A070 898 117
_______________________________________

XUE M. ZHENG v. HOLDER, 10-2013-ag
A088 530 523
_______________________________________

XIAODAN XU v. HOLDER, 10-2249-ag
A099 424 976
_______________________________________

09262011-1-28 -3-
QIAO RONG LIN v. HOLDER, 10-2400-ag
A099 927 241
_______________________________________

SAIHU WANG v. HOLDER, 10-2656-ag
A096 808 755
_______________________________________

JIANDAN WU, ZHIXIANG CHENG v. HOLDER, 10-2797-ag
A088 552 425
A099 186 862
_______________________________________

QIU YUN NI v. HOLDER 10-3336-ag
A089 253 069
_______________________________________

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-

2
The Petitioners in Zhong Lin Jiang v. Holder, No. 10-460-ag;
Qin Lin v. Holder, No. 10-923-ag; and Yu Ping Bao v. Holder, Nos.
10-1902-ag (L), 11-843-ag (Con).

09262011-1-28 -4-
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 claims that they fear

persecution because they have had one or more children in

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, we find no error in the agency’s decisions. See id.

at 158-72. While the petitioners in Jian Hui Shao were from

Fujian Province, as are most of the petitioners here, some

petitioners3 are from Zhejiang Province. Regardless, as with

the evidence discussed in Jian Hui Shao, the evidence they

have submitted relating to Zhejiang Province is deficient

either because it does not discuss forced sterilizations or

because it references isolated incidents of persecution of

individuals who are not similarly situated to the petitioners.

See id. at 160-61, 171-72.

3
The petitioners in Xiao Jing Xia, Chang Guang Dong v. Holder,
No. 10-1036-ag; Lin Fei Xie v. Holder, No. 10-1424-ag; Saihu Wang
v. Holder, No. 10-2656-ag; and Jiandan Wu, Zhixiang Cheng v.
Holder, No. 10-2797-ag.

09262011-1-28 -5-
 Some of the petitioners4 argue that the BIA erred by

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

4
The petitioners in Zhong Lin Jiang v. Holder, No. 10-460-ag;
Yue Jin Liu v. Holder, No. 10-843-ag; Yin Ying Cao v. Holder, No.
10-1171-ag; Xiu Fang Chen v. Holder, No. 10-1291-ag; Mei Zhu Lin v.
Holder, No. 10-1292-ag; Qin Ping Lin, Fei Guan v. Holder, No. 10-
1422-ag; Lin Fei Xie v. Holder, No. 10-1424-ag; Ai Qin Shi, Yong
Jie Liu v. Holder, No. 10-1837-ag; Xiu Jiang Huang v. Holder, No.
10-1895-ag; Yu Ping Bao v. Holder, Nos. 10-1902-ag (L), 11-843-ag
(Con); Yong Chen v. Holder, No. 10-1998-ag; and Qiu Yun Ni v.
Holder, No. 10-3336-ag.

09262011-1-28 -6-
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”).

Some of the petitioners5 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

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

5
The petitioners in Xiu Qin Huang v. Holder, No. 08-5530-ag;
Zhong Lin Jiang v. Holder, No. 10-460-ag; Yue Jin Liu v. Holder,
No. 10-843-ag; Xiao Jing Xia, Chang Guang Dong v. Holder, No. 10-
1036-ag; Yin Ying Cao v. Holder, No. 10-1171-ag; Xiu Fang Chen v.
Holder, No. 10-1291-ag; Mei Zhu Lin v. Holder, No. 10-1292-ag; Zhu
Chao Wang v. Holder, No. 10-1293-ag; Qin Ping Lin, Fei Guan v.
Holder, No. 10-1422-ag; Lin Fei Xie v. Holder, No. 10-1424-ag; Ai
Qin Shi, Yong Jie Liu v. Holder, No. 10-1837-ag; Xiu Jiang Huang v.
Holder, No. 10-1895-ag; Yong Chen v. Holder, No. 10-1998-ag; and
Qiao Rong Lin v. Holder, No. 10-2400-ag.

09262011-1-28 -7-
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. Similarly, contrary to the argument raised in five of

these cases,6 it would be futile to remand for further

consideration of the statements of Mei Yun Chen and Jiangzhen

Chen, women claiming to have been forcibly sterilized in

Fujian Province for violating the family planning policy with

the birth of their second children in Romania and Japan

respectively, because the BIA has reasonably found that

neither woman is similarly situated to Chinese nationals

returning to China with U.S. citizen children. See id.; see

also Jian Hui Shao, 546 F.3d at 155, 161, 171-72.

We are without jurisdiction to consider two of the

petitions7 to the extent they seek review of the agency’s

pretermission of petitioners’ applications for asylum as

untimely. See 8 U.S.C. § 1158(a)(3).

6
In Yue Jin Liu v. Holder, No. 10-843-ag; Zhu Chao Wang v.
Holder, No. 10-1293-ag; Qin Ping Lin, Fei Guan v. Holder, 10-1422-
ag; Ai Qin Shi, Yong Jie Liu v. Holder, No. 10-1837-ag; and Yong
Chen v. Holder, No. 10-1998-ag.
7
The petitions in Qin Lin v. Holder, No. 10-923-ag; and Ying
Wang v. Holder, No. 10-947-ag.

09262011-1-28 -8-
 In Xiu Qin Huang v. Holder, No. 08-5530-ag, the agency

reasonably relied on 2006 and 2007 U.S. Department of State

reports as opposed to the outdated 1997 Tantou Town Family

Planning Temporary Regulations petitioner submitted. See Jian

Hui Shao, 546 F.3d at 166. Moreover, it does not appear that

the Tantou Town Regulations were material to petitioner’s case

because the record evidence indicated that she resided and

feared persecution in Hunan Town and not Tantou Town.

Although petitioner refers to Tantou Town as her “hometown” in

her brief, unsworn statements in a brief are not evidence.

See Kulhawik v. Holder, 596 F.3d 296, 298 (2d Cir. 2009).

In Zhong Lin Jiang v. Holder, No. 10-460-ag, the BIA did

not err in declining to address the evidence petitioner

submitted for the first time on appeal. See 8 C.F.R. §

1003.1(d)(3)(iv); see also Matter of Fedorenko, 19 I. & N.

Dec. 57, 74 (BIA 1984). Regardless, the evidence submitted

was largely cumulative of the evidence in the record and not

materially distinguishable from the evidence discussed in Jian

Hui Shao. In Qin Lin v. Holder, No. 10-923-ag, the BIA

similarly did not err when it denied petitioner’s motion to

remand based on her failure to establish her prima facie

eligibility for relief. See Li Yong Cao v. U.S. Dep’t of

09262011-1-28 -9-
Justice, 421 F.3d 149, 156 (2d Cir. 2005); see also Jian Hui

Shao, 546 F.3d at 165, 172.

In Ying Wang v. Holder, No. 10-947-ag, the agency

reasonably found speculative the petitioner’s claimed fear

that she would face persecution based on her intent to join an

unregistered church in China. See Jian Xing Huang v. INS, 421

F.3d 125, 129 (2d Cir. 2005); see also Hongsheng Leng v.

Mukasey, 528 F.3d 135, 143 (2d Cir. 2008). In Mei Ru Lin v.

Holder, No. 10-1268-ag, we do not consider petitioner’s

unexhausted past persecution claim. See Foster v. INS, 376

F.3d 75, 78 (2d Cir. 2004). In Zhu Chao Wang v. Holder, No.

10-1293-ag, the IJ did not abuse his discretion by declining

to admit petitioner’s late-filed evidence because that

evidence pre-dated the hearing at which he closed the record.

See Dedji v. Mukasey, 525 F.3d 187, 191 (2d Cir. 2008). In Yu

Ping Bao v. Holder, Nos. 1902-ag (L), 11-843-ag (Con), the BIA

did not err in finding that the petitioner failed to establish

her prima facie eligibility for relief based on her newly

commenced practice of Falun Gong in the United States because

she did not submit evidence that authorities in China are

aware of or likely to become aware of her activities in the

United States. See Hongsheng Leng, 528 F.3d at 143.

09262011-1-28 -10-
 Finally, in Jiandan Wu, Zhixiang Cheng v. Holder, No. 10-

2797-ag, petitioners assert the BIA, in ruling that they

failed to satisfy the exceptional and extremely unusual

hardship requirement, erroneously minimized the impact their

removal would have on their U.S. citizen children. The

contention is both ineffective and moot. It is ineffective

because the challenged decision was discretionary and did not

involve a question of law or constitutional claim; our court

is therefore without jurisdiction to review it. See Mendez v.

Holder, 566 F.3d 316, 319-23 (2d Cir. 2009) (citing 8 U.S.C.

§ 1252(a)(2)(B); Barco-Sandoval v. Gonzales, 51 6 F.3d 35,

39 (2d Cir. 2008). The contention is in addition moot because

the agency also dispositively denied cancellation of removal,

which decision petitioners have not challenged (and which we,

in any event, would lack jurisdiction to review because it was

a discretionary decision not involving a question of law or

constitutional claim. See id.).

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

09262011-1-28 -11-
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

09262011-1-28 -12-