Liu v. Holder

Opinion

09-4905-ag Liu 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-