Cheng v. Holder

• Court: Court of Appeals for the Second Circuit
• Decided: April 22, 2011
• Docket: 08-0407
• Status: Unpublished

Opinion

08-0407-ag Cheng 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 22nd day of April, two thousand eleven.

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

_______________________________________

YAN ZHU LU v. HOLDER,1 07-4187-ag A077 297 838 _______________________________________

CUI YING YANG, YUN JIN LIAN v. 07-4401-ag HOLDER, A097 849 570 A073 577 705 _______________________________________

1 Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Eric H. Holder, Jr. is automatically substituted as respondent where necessary. 09132010-1-20 _______________________________________

JING YAN TANG v. HOLDER, UNITED STATES 07-4779-ag DEPARTMENT OF JUSTICE, A077 121 600 _______________________________________

YU ZHEN CHEN v. HOLDER, 07-5109-ag A097 753 317 _______________________________________

WENZHONG CHENG v. HOLDER, 08-0407-ag A098 255 761 _______________________________________

XIU MEI DONG v. HOLDER, 08-0446-ag A077 977 769 _______________________________________

XIAO JUN LIN v. HOLDER, 08-1713-ag A098 776 207 _______________________________________

MEI DONG v. HOLDER, 08-2537-ag A098 713 548 _______________________________________

QIAO FANG CHEN v. HOLDER, 08-3179-ag A095 357 599 _______________________________________

MEI RONG GAO, YING TAO LIN v. HOLDER, 08-3413-ag A099 560 436 A099 560 437 _______________________________________

AI RONG LIN v. HOLDER, 08-4492-ag A077 777 009 _______________________________________

09132010-1-20 -2- _______________________________________

JI CHUN YANG v. HOLDER, 09-1839-ag A099 073 349 _______________________________________

QIAOMENG ZHOU v. HOLDER, 09-2013-ag A099 387 277 _______________________________________

YUN LIN v. HOLDER, 09-2155-ag A073 662 328 _______________________________________

SHUI JIN WU, MIN SONG LIN v. HOLDER, 09-2176-ag UNITED STATES DEPARTMENT OF JUSTICE, A098 977 523 A098 977 524 _______________________________________

YAN ZHEN CHEN v. HOLDER, 09-2664-ag A098 391 488 _______________________________________

QIN YUN ZHENG v. HOLDER, 09-2862-ag A096 417 478 _______________________________________

YAN YING WU v. HOLDER, 09-3365-ag A099 683 161 _______________________________________

MIN CHEN v. HOLDER, 09-3376-ag A088 379 559 _______________________________________

09132010-1-20 -3- 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.

These petitions challenge either (1) decisions of the BIA

that either affirmed an immigration judge’s (“IJ”) denial of

asylum and related relief or reversed an IJ’s grant of

relief,2 or (2) BIA denials of motions to remand or reopen,3

or (3) rulings of both kinds.4 The applicable standards of

review by this Court 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 one or more children in

2 The petitioners in Jing Yan Tang v. U.S. Dep’t of Justice, No. 07-4779-ag; Wenzhong Cheng v. Holder, No. 08-0407-ag; Xiao Jun Lin v. Holder, No. 08-1713-ag; Mei Rong Gao, Ying Tao Lin v. Holder, No. 08-3413-ag; Ai Rong Lin v. Holder, No. 08-4492-ag; Ji Chun Yang v. Holder, No. 09-1839-ag; Qiaomeng Zhou v. Holder, No. 09-2013-ag; Yan Zhen Chen v. Holder, No. 09-2664-ag; Qin Yun Zheng v. Holder, No. 09-2862-ag; and Min Chen v. Holder, No. 09-3376-ag. 3 The petitioners in Yan Zhu Lu v. Holder, No. 07-4187-ag; Cui Ying Yang, Yun Jin Lian v. Holder, No. 07-4401-ag; Xiu Mei Dong v. Holder, No. 08-0446-ag; and Yun Lin v. Holder, No. 09-2155-ag. 4 The petitioners in Yu Zhen Chen v. Holder, No. 07-5109-ag; Mei Dong v. Holder, No. 08-2537-ag; Qiao Fang Chen v. Holder, No. 08-3179-ag; Shui Jin Wu, Min Song Lin v. Holder, No. 09-2176-ag; and Yan Ying Wu v. Holder, No. 09-3365-ag.

09132010-1-20 -4- 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, the agency’s decisions are not erroneous. See id.

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

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

some petitioners5 are from Zhejiang and Guangdong Provinces.

Regardless, as with the evidence discussed in Jian Hui Shao,

the evidence they have submitted related to Zhejiang and

Guangdong 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 petitioners6 also argue that the BIA has erred

by improperly making de novo factual findings rejecting the

determinations made by an IJ. Their claims lack merit. The

BIA has not made de novo factual findings. Instead, the BIA

has concluded that the IJ’s factual findings do not meet the

legal standard of an objectively reasonable fear of

persecution, in these cases, a fear of forced sterilization or

5 The petitioners in Mei Rong Gao, Ying Tao Lin v. Holder, No. 08-3413-ag; and Qiaomeng Zhou v. Holder, No. 09-2013-ag. 6 The petitioners in Ji Chun Yang v. Holder, No. 09-1839-ag; and Shui Jin Wu, Min Song Lin v. Holder, No. 09-2176-ag.

09132010-1-20 -5- 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”).

We decline the request of some of the petitioners7 that

we take judicial notice of documents outside 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, 269-70 (2d Cir.

2007).

For the same reasons as this Court set forth in Yuen Jin

v. Mukasey, 538 F.3d 143, 156, 158-59 (2d Cir. 2008), the BIA

did not err in concluding that those petitioners8 seeking to

file a successive asylum application based on their changed

7 The petitioners in Jing Yan Tang v. Holder, No. 07-4779-ag; and Mei Dong v. Holder, No. 08-2537-ag. 8 The petitioners in Yan Zhu Lu v. Holder, No. 07-4187-ag; and Cui Ying Yang, Yun Jin Lian v. Holder, No. 07-4401-ag.

09132010-1-20 -6- personal circumstances without filing a timely motion to

reopen were not eligible to do so.

Two of the petitioners9 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, 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 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). We cannot say, furthermore, that the

agency’s conclusion concerning the probative force of the

statement involved any error of law.

The BIA did not err in Xiao Jun Lin v. Holder, No. 08-

1713-ag, in declining to consider the petitioner’s eligibility

9 The petitioners in Mei Rong Gao, Ying Tao Lin v. Holder, No. 08-3413-ag.

09132010-1-20 -7- for relief based on her Falun Gong claim because she failed to

exhaust this claim in her brief on appeal to the BIA. In Ai

Rong Lin v. Holder, No. 08-4492-ag, we decline to consider

petitioner’s unexhausted claim for CAT relief based on her

illegal departure from China. See Lin Zhong v. U.S. Dep’t of

Justice, 480 F.3d 104, 124 (2d Cir. 2007). In Ji Chun Yang v.

Holder, No. 09-1839-ag, we assume hypothetical jurisdiction to

consider petitioner’s unexhausted claim that she is eligible

for withholding of removal because the “jurisdictional issues

are complex and the substance of the claim is . . . plainly

without merit,” Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d

332, 338 (2d Cir 2006), particularly when her claim for

withholding of removal was predicated entirely on the same

facts as her claim for asylum, see Paul v. Gonzales, 444 F.3d

148, 156 (2d Cir. 2006). In Qiaomeng Zhou v. Holder, No. 09-

2013-ag, we lack jurisdiction either to review the agency’s

pretermission of petitioner’s application for asylum as

untimely under 8 U.S.C. § 1158(a)(2)(B), see 8 U.S.C. §

1158(a)(3), or to consider petitioner’s unexhausted argument

that he is eligible for CAT relief, see Karaj v. Gonzales, 462

F.3d 113, 119 (2d Cir. 2006) (citing Beharry v. Ashcroft, 329

F.3d 51, 59 (2d Cir. 2003)). In Shui Jin Wu, Min Song Lin v.

09132010-1-20 -8- Holder, No. 09-2176-ag, we need not consider whether we have

jurisdiction to review petitioners’ challenge to the BIA’s

pretermission of their application for asylum as untimely

because the BIA’s alternative finding that they failed to

demonstrate their eligibility for asylum was supported by

substantial evidence. In Yan Zhen Chen v. Holder, No. 09-

2664-ag, we decline to consider petitioner’s unexhausted

arguments, and we need not consider petitioner’s contention

that the IJ’s positive credibility determination is supported

by the record because the BIA assumed, arguendo, that she was

credible for purposes of her appeal. Finally, in Qin Yun

Zheng v. Holder, No. 09-2862-ag, there is no merit to

petitioner’s argument that she established her eligibility for

withholding of removal and CAT relief based on her purportedly

illegal departure from China. See Qun Yang v. McElroy, 277

F.3d 158, 163 n.5 (2d Cir. 2002) (per curiam); see also Mu

Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156, 159-60 (2d

Cir. 2005).

09132010-1-20 -9- 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

09132010-1-20 -10-