SUMMARY ORDER
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 petitioner
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 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 petitioners
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.
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 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”).
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 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,
361 Fed.Appx. 184 (2d Cir.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 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,
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 petitions
to the extent they seek review of the agency’s preter-mission of petitioners’ applications for asylum as untimely.
See
8 U.S.C. § 1158(a)(3).
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,
571 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 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.
Free access — add to your briefcase to read the full text and ask questions with AI
SUMMARY ORDER
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 petitioner
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 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 petitioners
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.
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 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”).
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 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,
361 Fed.Appx. 184 (2d Cir.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 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,
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 petitions
to the extent they seek review of the agency’s preter-mission of petitioners’ applications for asylum as untimely.
See
8 U.S.C. § 1158(a)(3).
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,
571 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 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.
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,
516 F.3d 35, 39 (2d Cir.2008)). The contention is in addition moot because the agency also dis-positively 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 argument in these petitions is DENIED in accordance with Federal Rule of Appellate Procedure 84(a)(2), and Second Circuit Local Rule 34.1(b).