CourtCourt of Appeals for the Second CircuitDecidedOctober 26, 2010
Docket07-4283-ag (L), 08-0688-ag (Con), 07-4940-ag, 07-5006-ag, 07-5339-ag (L), 08-2538-ag (Con), 07-5660-ag, 08-1214-ag, 08-1404-ag, 08-1740-ag, 08-2032-ag, 08-2627-ag, 08-3035-ag (L), 09-0200-ag (Con), 08-3534-ag (L), 09-1087-ag (Con), 08-3795-ag, 08-4315-ag, 08-4863-ag (L), 09-2701-ag (Con), 08-5839-ag, 08-6296-ag, 09-0347-ag, 09-0422-ag, 09-0575-ag, 09-1262-ag, 09-1394-ag, 09-1506-ag, 09-1509-ag, 09-1693-ag, 09-2231-ag, 09-2500-ag, 09-4159-ag
StatusUnpublished
SUMMARY ORDER
Each of these petitions challenges a decision of the BIA: (1) affirming the decision of an immigration judge (“IJ”) denying asylum and related relief; (2) reversing the IJ’s decision granting relief; (3) denying motions to remand, reconsider, or reopen; and/or (4) affirming the IJ’s denial of motions to reconsider 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, filed applications and motions based on their claim that they fear persecution because they have 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 conclude there is 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, four petitioners are from Zhejiang Province.
Regardless, as with the evidence discussed in
Jian Hui Shao,
the evidence they submitted related to Zhejiang Province 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 petitioners
argue that the BIA erred by improperly conducting
de novo
review of determinations made by an IJ. Many of them rely on a recent
decision of the Third Circuit, holding, 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,
602 F.3d 260 (3d Cir.2010). These 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 evidence does not meet the legal standard of an objectively reasonable fear of 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”).
Three of the petitioners argue that the BIA applied an incorrect burden of proof by requiring them to establish more than their
prima facie
eligibility for relief. However, in two of those cases,
the BIA explicitly considered the petitioners’
prima facie
eligibility for relief.
See INS v. Abudu,
485 U.S. 94, 104, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988). In the other case,
the BIA reasonably found that the petitioner failed to demonstrate changed country conditions excusing the untimely filing of his motion to reopen.
See
8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c).
Some of the petitioners
argue that the BIA 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 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,
361 FedAppx. 184 (2d Cir.2010). Since that remand, 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 that 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 did not involve any error of law.
Two of the petitioners
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.
We decline a request by one petitioner
to consider evidence that was not included in the administrative record and we will not remand for the agency to consider such evidence.
See 8
U.S.C. § 1252(b)(4)(A);
see also Xiao Xing Ni v. Gonzales,
494 F.3d 260, 269 (2d Cir.2007). To the extent that the BIA declined to credit two petitioners’
unauthenticated 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).
Insofar as two of the petitioners
argue that the agency erred in denying their claims for withholding of removal and CAT relief based on their failure to demonstrate their eligibility for asylum, the agency did not err because all of their claims were based on the same factual predicate.
See Paul v. Gonzales,
444 F.3d 148, 156 (2d Cir.2006). Additionally, contrary to another petitioner’s
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SUMMARY ORDER
Each of these petitions challenges a decision of the BIA: (1) affirming the decision of an immigration judge (“IJ”) denying asylum and related relief; (2) reversing the IJ’s decision granting relief; (3) denying motions to remand, reconsider, or reopen; and/or (4) affirming the IJ’s denial of motions to reconsider 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, filed applications and motions based on their claim that they fear persecution because they have 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 conclude there is 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, four petitioners are from Zhejiang Province.
Regardless, as with the evidence discussed in
Jian Hui Shao,
the evidence they submitted related to Zhejiang Province 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 petitioners
argue that the BIA erred by improperly conducting
de novo
review of determinations made by an IJ. Many of them rely on a recent
decision of the Third Circuit, holding, 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,
602 F.3d 260 (3d Cir.2010). These 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 evidence does not meet the legal standard of an objectively reasonable fear of 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”).
Three of the petitioners argue that the BIA applied an incorrect burden of proof by requiring them to establish more than their
prima facie
eligibility for relief. However, in two of those cases,
the BIA explicitly considered the petitioners’
prima facie
eligibility for relief.
See INS v. Abudu,
485 U.S. 94, 104, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988). In the other case,
the BIA reasonably found that the petitioner failed to demonstrate changed country conditions excusing the untimely filing of his motion to reopen.
See
8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c).
Some of the petitioners
argue that the BIA 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 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,
361 FedAppx. 184 (2d Cir.2010). Since that remand, 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 that 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 did not involve any error of law.
Two of the petitioners
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.
We decline a request by one petitioner
to consider evidence that was not included in the administrative record and we will not remand for the agency to consider such evidence.
See 8
U.S.C. § 1252(b)(4)(A);
see also Xiao Xing Ni v. Gonzales,
494 F.3d 260, 269 (2d Cir.2007). To the extent that the BIA declined to credit two petitioners’
unauthenticated 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).
Insofar as two of the petitioners
argue that the agency erred in denying their claims for withholding of removal and CAT relief based on their failure to demonstrate their eligibility for asylum, the agency did not err because all of their claims were based on the same factual predicate.
See Paul v. Gonzales,
444 F.3d 148, 156 (2d Cir.2006). Additionally, contrary to another petitioner’s
argument, the agency did not err in determining that she was not “entitled to CAT protection based solely on the fact that she is part of the large class of persons who have illegally departed China.”
Mu Xiang Lin v. U.S. Dep’t of Justice,
432 F.3d 156, 159-60 (2d Cir.2005).
To the extent that one of the petitioners
argues that she was eligible to file a successive asylum application, that argument is foreclosed by our decision in
Yuen Jin v. Mulcasey,
538 F.3d 143 (2d Cir. 2008).
We lack jurisdiction to consider a petitioner’s
challenge to a BIA member’s decision to unilaterally decide her appeal as opposed to referring her appeal to a three-member panel.
See Guyadin v. Gonzales,
449 F.3d 465, 469 (2d Cir.2006). Even assuming,
arguendo,
that we had jurisdiction to consider that argument, contrary to the petitioner’s contention, the BIA did not err in disposing of her appeal with a single-member panel when much of the evidence that she submitted had been analyzed in BIA precedential decisions.
See 8
C.F.R. § 1003.1(e)(5) (“A single Board member may reverse the decision under review if such reversal is plainly consistent with and required by intervening or Board or judicial precedent”).
One of the petitioners
argues that the BIA erred in finding that the IJ lacked jurisdiction to consider his motion to reopen because in a prior decision the BIA had stated that any future motions should be filed with the IJ. However, the BIA’s prior decision informed the petitioner to file any future motions to rescind, as opposed to motions to reopen, with the IJ, and the BIA did not err in finding that it had jurisdiction over petitioner’s third motion to reopen because it was the last administrative body to issue an order in his proceedings.
See
8 C.F.R.
§ 1003.23(b)(1);
see also Matter of Patino,
23 I. & N. Dec. 74, 76 (B.I.A.2001). Regardless, because the BIA considered the merits of that petitioner’s third motion to reopen, and did not dismiss his appeal based on the IJ’s lack of jurisdiction, any alleged inconsistency was harmless.
Contrary to another petitioner’s
argument that the BIA failed to provide any rational basis for denying his motion when his wife’s similar motion had been granted, the BIA reasonably explained that there had been intervening BIA precedents compelling a different result.
See Ke Zhen Zhao v. U.S. Dep’t of Justice,
265 F.3d 83, 93 (2d Cir.2001).
Finally, the BIA did not err in denying one petitioner’s
motion to reconsider because it was untimely.
See
8 C.F.R. § 1003.2(b)(2).
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).