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FENG YAN CHEN v. HOLDER

United States Court of Appeals, Second Circuit
Jan 24, 2011
412 F. App'x 328 (2d Cir. 2011)

Opinion

Nos. 07-4870-ag, 07-5589-ag, 08-1238-ag (1); 08-4314-ag (Con), 08-3715-ag (1); 09-1991-ag (Con), 08-392-ag (1); 09-2098-ag (Con), 08-4469-ag, 08-5893-ag, 09-0456-ag, 09-1661-ag, 09-2115-ag, 09-2287-ag, 09-2849-ag, 09-2939-ag, 09-2998-ag, 09-3025-ag, 09-3042-ag, 09-3329-ag, 09-3397-ag, 09-3459-ag, 09-3550-ag.

January 24, 2011.

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.

Yee Ling Poon, Esq., Law Offices of Yee Ling Poon, New York, NY, for Feng Yan Chen.

Dehai Zhang Esq., Law Office of Dehai Zhang, Esq., Flushing, NY, for Mei Juan Zhang, aka Mei Juan Zheng.

Kelly J. Walls Esq., U.S. Department of Justice, Civil Division, Office of, Washington, DC, for United States Department of Justice.

Richard Tarzia, Esq., The Law Office of Richard Tarzia, Belle Mead, NJ, for Wen QinOu.

Terri Leon-Benner, Esq., Washington, DC, for Holder.

Richard Tarzia Esq., The Law Office of Richard Tarzia, Belle Mead, NJ, for Han Ting Lin.

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



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 petitioners also challenge decisions of the BIA denying motions to remand or reopen. In those cases in which the BIA affirmed the IJ's decision denying relief, we review both the IJ's and the BIA's opinions, see Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir. 2008), and in those cases in which the BIA reversed the IJ's decision granting relief or denied a motion in the first instance, we review only the decision of the BIA, see Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). 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).

The petitioners in Wen Qin Ou v. Holder, Nos. 08-1238-ag (1), 08-4314-ag (Con); Yanna Chen, Han Ting Lin v. Holder, Nos. 08-3715-ag (1), 09-1991-ag (Con); Zhong Di Goo v. Holder, Nos. 08-4392-ag (1), 09-2098-ag (Con); Su Jie Huang v. Holder, No. 08-5893-ag; Li Zhen Zhu v. Holder, No. 09-0456-ag; Ren Chai Yang, ling Chun Chen v. Holder, No. 09-1661-ag; Xiao Ping Chen, Yong Di Li v. Holder, No. 09-2287-ag; Ting Yi Lin v. Holder, No. 09-2849-ag; Bi Yun Huang v. Holder, No. 09-2939-ag; Ru Chen v. Holder, No. 09-2998-ag; Xiao Zhen Yang v. Holder, No. 09-3025-ag; Yun Zhi Chi v. Holder, No. 09-3329-ag; Lin Wu, Li Guang Dong v. Holder, No. 09-3397-ag; and Rong Li, Bao Lu Lin v. Holder, No. 09-3550-ag.

Petitioners, all natives and citizens of China, sought relief from removal based on their claim 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. Although 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 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.

The petitioners in Ke Ling Zhang, Su Ping Zhang v. Holder, No. 08-4469-ag; Su Jie Huang v. Holder, No. 08-5893-ag; Ting Yi Lin v. Holder, No. 09-2849-ag; and Ru Chen v. Holder, No. 09-2998-ag.

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 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 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 Shunfii 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. Additionally, contrary to one petitioner's argument, there was no error in the agency's decision declining to credit a similar statement from Mei Yun Chen because it was a photocopy from an unrelated case. See Xiao Ji Chen v. U.S. Dep't of Justice, 471 F.3d 315, 342 (2d Cir. 2006).

The petitioners in Wen Qin Ou v. Holder, Nos. 08-1238-ag (1), 08-4314-ag (Con); Yanna Chen, Han Ting Lin v. Holder, Nos. 08-3715-ag (1), 09-1991-ag (Con); Zhong Di Gao v. Holder, Nos. 08-4392-ag (1), 09-2098-ag (Con); Li Zhen Zhu v. Holder, No. 09-0456-ag; Ren Chai Yang, Jing Chun Chen v. Holder, No. 09-1661-ag; Xiao Ping Chen, YongDi Li v. Holder, No. 09-2287-ag; Bi Yun Huang v. Holder, No. 09-2939-ag; Xiao Zhen Yang v. Holder, No. 09-3025-ag; Bi Hui Lin v. Holder, No. 09-3042-ag; Yun Zhi Chi v. Holder, No. 09-3329-ag; Lin Wu, Li Guang Dong v. Holder, No. 09-3397-ag; Mei Ying Wu, Yong Xiu Chen v. Holder, No. 09-3459-ag; and Rong Li, Bao Lu Lin v. Holder, No. 09-3550-ag.

The petitioner in Zhong Di Gao v. Holder, Nos. 08-4392-ag (1), 09-2098-ag (Con).

Some of the petitioners also 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, 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 may review de novo conclusions of law as to whether the facts found satisfy a particular legal standard. 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 IJ's factual findings. Instead, the BIA has concluded, on de novo review, that the facts, as found by the IJ, do 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 Shoo, 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").

The petitioners in Feng Yan Chen v. Holder, No. 07-4870-ag; Yanna Chen, Han Ting Lin v. Holder, Nos. 08-3715-ag (1), 09-1991-ag (Con); Zhong Di Gao v. Holder, Nos. 08-4392-ag (1), 09-2098-ag (Con); Su Jie Huang v. Holder, No. 08-5893-ag; Li Zhen Zhu v. Holder, No. 09-0456-ag; Ren Chai Yang, Jing Chun Chen v. Holder, No. 09-1661-ag; Caiyun Wang v. Holder, No. 09-2115-ag; Xiao Ping Chen, Yong Di Li v. Holder, No. 09-2287-ag; Ru Chen v. Holder, No. 09-2998-ag; Bi Hui Lin v. Holder, No. 09-3042-ag; Lin Wu, Li Guang Dong v. Holder, No. 09-3397-ag; Mei Ying Wu, Yong Xiu Chen v. Holder, No. 09-3459-ag; and Rong Li, Bao Lu Lin v. Holder, No. 09-3550-ag.

In denying some of the petitioners' motions, the BIA reasonably found that certain of the newly submitted documents were previously obtainable, see INS v. Abudu, 485 U.S. 94, 104-05, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988), or declined to review evidence submitted for the first time on appeal absent any argument as to why such evidence merited further consideration on remand, 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 in support of the petitioners' motions was largely cumulative of the evidence in the record and not materially distinguishable from the evidence discussed in Jian Hui Shao.

The petitioners in Wen Qin Ou v. Holder, Nos. 08-1238-ag (1), 08-1314-ag (Con); Su Jie Huang v. Holder, No. 08-5893-ag; Li Zhen Zhu v. Holder, No. 09-0456-ag; Ting Yi Lin v. Holder, No. 09-2849-ag; Bi Yun Huang v. Holder, No. 09-2939-ag; Ru Chen v. Holder, No. 09-2998-ag; Xiao Zhen Yang v. Holder, No. 09-3025-ag; Yun Zhi Chi v. Holder, No. 09-3329-ag; Lin Wu, Li Guang Dong v. Holder, No. 09-3397-ag; and Rong Li, Bao Lu Lin v. Holder, No. 09-3550-ag.

Finally, one petitioner argues that the IJ erred by rejecting her request for an adjournment to submit evidence demonstrating that her relatives had been forcibly sterilized. We find that remand for the BIA to consider petitioner's argument would be futile because the IJ allowed her to testify on the subject and her relatives were not similarly situated. See Shunfu Li 529 F.3d at 150; see also Jian Hui Shao, 546 F.3d at 160-61.

The petitioner in Xiao Zhen Yang v. Holder, No. 09-3025-ag.

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).


Summaries of

FENG YAN CHEN v. HOLDER

United States Court of Appeals, Second Circuit
Jan 24, 2011
412 F. App'x 328 (2d Cir. 2011)
Case details for

FENG YAN CHEN v. HOLDER

Case Details

Full title:FENG YAN CHEN v. HOLDER, A097 150 142. Mei Juan Zhang, Aka Mei Juan Zheng…

Court:United States Court of Appeals, Second Circuit

Date published: Jan 24, 2011

Citations

412 F. App'x 328 (2d Cir. 2011)