Xue Gui Huang v. Holder

378 F. App'x 42

• Court: Court of Appeals for the Second Circuit
• Decided: May 24, 2010
• Docket: 07-4984-ag, 07-5313-ag, 07-5787-ag, 08-1251-ag, 08-1779-ag, 08-2108-ag, 08-2460-ag, 08-3248-ag, 08-4369-ag, 08-5322-ag, 08-5551-ag, 08-5892-ag, 08-6246-ag, 09-0141-ag, 09-0245-ag, 09-0261-ag, 09-0529-ag, 09-1545-ag, 09-2745-ag
• Status: Unpublished

Opinion

SUMMARY ORDER

Petitioners, all citizens of China, seek review of BIA orders either affirming an immigration judge’s (“IJ’s”) decision denying asylum and related relief or reversing the IJ’s decision granting relief based on then* claim that they fear persecution because they had one or more children in the United States. For largely the same reasons as this Court set forth in Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.2008), we find no error in the BIA’s decision denying each application. 2 See id. at 168-72.

Some of the petitioners argue that the BIA failed to give sufficient consideration or importance to the affidavit of Jin Fu Chen, who alleged that he suffered forcible sterilization after his return to China based on the two children born to his wife in Japan. A prior panel of this Court has remanded a petition making a similar claim so that Jin Fu Chen’s affidavit (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 considered the Jin Fu Chen affidavit in numerous cases and has repeatedly concluded that it neither demonstrates material changed country conditions nor supports a well-founded fear of persecution. See, e.g., In re Ai Bin Chen, No. A078 727 599 (B.I.A.2009); Mei Feng Weng, No. A077 322 259 (B.I.A.2009). Accordingly, it is clear that further consideration of the affidavit 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 affidavit involved any error of law.

Some of the petitioners also argue that the BIA has erred by improperly conducting de novo review of determinations made by an IJ. They rely on the recent decision of the Third Circuit, ruling, 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). Their claim lacks 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. 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”).

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).

2 . We decline to review petitioners' illegal departure claim in Bian v. Holder, Docket No. 08-2460-ag, because they failed to exhaust this argument before the agency. See Lin Zhong v. U.S. Dep't of Justice, 480 F.3d 104, 107 n. 1, 122 (2d Cir.2007).